IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Misc.Petition No.68896-M of 2006 Date of Decision: 11.3.2008 Rajat Taneja and others. ....... Petitioners through Shri Sanjay Kaushal, Advocate. Versus Harmeeta Singh. ....... Respondent through Shri J.R.Mittal, Senior Advocate with Shri S.R.Sharma, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The petitioners have filed this petition under Section 482 of the Cr.P.C. for quashing of complaint dated 11.9.2003, Annexure P1, filed by respondent- Harmeeta Singh, under the provisions of Section 66 of the Information Technology Act,2000 (hereinafter referred to as `the Act') read with Section 120-B of the Indian Penal Code (for short, `the I.P.C.') and the consequent summoning order dated 31.1.2005 (Annexure P2). They have also made a prayer therein for setting aside order dated 7.10.2006 (Annexure P5) whereby their revision petition filed against the summoning order, Annexure P2, has been dismissed by the Additional Sessions Judge, Crl.Misc.Petition No.68896-M of 2006 -2- .... Gurgaon. The complaint, even though preferred under Section 66 of the Act, has its genesis in a marital discord, which lurks in the background. The respondent-complainant was married to petitioner no.1 -Rajat Taneja on 24.3.2002 and thereafter, both of them lived together in the United States of America. However, the marriage did not work out and the respondent, whose tourist visa was to expire on 27.9.2002, came to India on 24.9.2002. Immediately thereafter, F.I.R.No.311 dated 21.10.2002 was lodged by her against the petitioners at Police Station, Udyog Vihar, Gurgaon, for commission of offences punishable under Sections 406, 420 and 498-A of the I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act. This resulted in petitioner nos. 2 to 4 applying for pre-arrest bail before the Sessions Judge, Gurgaon. During the course of those proceedings, they produced some E-mails which had purportedly been written by the respondent to them and her husband, i.e., petitioner no.1, in order to establish their innocence and to prove the falsity of the allegations levelled by her. Petitioner nos. 2 to 4 were granted the benefit of anticipatory bail on 9.11.2002 by the Court of Additional Sessions Judge, Gurgaon. The respondent filed complaint, Annexure P1, on 11.9.2003 in the Court of Chief Judicial Magistrate, Gurgaon, alleging that petitioner nos. 2 to 4 had produced fabricated and false E-mails while petitioner no.1 Crl.Misc.Petition No.68896-M of 2006 -3- .... was specifically accused of hacking within the meaning of Section 66 of the Act. It was further alleged that the petitioners had no access or knowledge about the password or E-mail account of the respondent and she had neither given consent to them to take the print-out of the E-mails nor to save the same on the hard-disc and yet, they managed to procure them by hacking. With the aforesaid allegations, the respondent prayed in the complaint that the same be sent to the Station House Officer, Udyog Vihar, Gurgaon for investigation under Section 156(3) of the Cr.P.C. The Judicial Magistrate Ist Class, Gurgaon, to whom the complaint was entrusted, recorded the preliminary evidence of the respondent and thereafter passed order dated 31.1.2005 (Annexure P2) summoning the petitioners to stand trial for commission of offence under Section 66 of the Act read with Section 120-B of the I.P.C. The petitioners went up in revision before the Sessions Court at Gurgaon, but the Additional Sessions Judge to whom the same was assigned for disposal, rejected their prayer vide his order dated 7.10.2006 (Annexure P5) on the ground that it was not maintainable. This has resulted in the filing of the present petition. Learned counsel for the petitioners contended that the primary allegations against the petitioners are that they had procured E-mails written by the respondent without her consent and without having access to her E- Crl.Misc.Petition No.68896-M of 2006 -4- .... mail account and used the same for the purpose of getting pre-arrest bail to petitioner nos. 2 to 4. He further contended that the concession of anticipatory bail was extended to petitioner nos. 2 to 4 on 9.11.2002, whereas the complaint was preferred belatedly on 11.9.2003. He sought to project before this Court that apart from the fact that the complaint was filed belatedly, even a reading of the same does not disclose the commission of any offence within the meaning of any of the provisions of the Act and specifically Section 66 thereof. Besides, learned counsel for the petitioners argued that the learned Judicial Magistrate had no jurisdiction to summon the petitioners on the basis of the complaint filed by the respondent because the Act itself provides a complete mechanism for redressal of any grievance of the aggrieved person and for penalising an offender for the commission of any offence under it. He contended that Part-XI of the Act details the offences, while Part-IX thereof provides for penalties and the manner in which the complaints are to be adjudicated upon. Reference has been made to Sections 46 and 78 of the Act, which talk of the adjudicating officer and the investigation, which can be got done by an officer not below the rank of Deputy Superintendent of Police. Cumulatively, it was contended that looking at the complaint from any angle, the same was baseless and even if, it is assumed that there was some substance in the allegations contained therein, the learned Judicial Magistrate had no jurisdiction to entertain the same. On the other hand, learned counsel for the respondent argued Crl.Misc.Petition No.68896-M of 2006 -5- .... that the only prayer made in the complaint was that the matter be referred to the Station House Officer, Udyog Vihar, Gurgaon under the provisions of Section 156(3) of the Cr.P.C. for investigation and since the provisions of the Cr.P.C. were applicable, there was no infirmity committed by the learned Judicial Magistrate in passing the summoning order against the petitioners because the preliminary evidence of the respondent was recorded, which prima facie established the commission of an offence under Section 66 of the Act read with Section 120-B of the I.P.C. He also urged that the learned Additional Sessions Judge has not erred in dismissing the revision petition preferred by the petitioners because the same was not maintainable. I have heard the learned counsel for the parties and have perused the record. Even though, the learned counsel for the petitioners exhaustively referred to the provisions of the Act to contend that the allegations contained in the complaint, are hollow, yet, I am of the opinion that before examining the respective contentions, it would be just and proper to consider as to whether the learned Judicial Magistrate had the jurisdiction to take the cognizance of the matter in the manner in which it has been done by summoning the petitioners to stand trial for committing an offence under Section 66 of the Act. Chapter-IX of the Act provides for penalties and adjudication. Section 46, which is contained in this chapter, deals with the power to Crl.Misc.Petition No.68896-M of 2006 -6- .... adjudicate upon a contravention committed by any person of any provisions of the Act. It reads as under:- “46. Power to adjudicate.- (1) For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made thereunder the Central Government shall, subject to the provisions of sub-section (3), appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer for holding an inquiry in the manner prescribed by the Central Government. (2) The adjudicating officer shall, after giving the person referred to in sub-section (1) a reasonable opportunity for making representation in the matter and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty or award such compensation as he thinks fit in accordance with the provisions of that section. (3) No person shall be appointed as an adjudicating officer unless he possesses such experience in the field of Information Technology and legal or judicial experience as may be prescribed by the Central Government. (4) Where more than one adjudicating officers are appointed, the Central Government shall specify by order the matters and Crl.Misc.Petition No.68896-M of 2006 -7- .... places with respect to which such officers shall exercise their jurisdiction. (5) Every adjudicating officer shall have the powers of a civil court which are conferred on the Cyber Appellate Tribunal under sub-section (2) of section 58, and -- (a) all proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860); (b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure,1973 (2 of 1974).” An analysis of the above quoted provisions shows that an adjudicating officer, who shall not be below the rank of a Director to the Government of India or an equivalent officer of a State Government, appointed by the Central Government, shall be competent to look into the contravention of any of the provisions of the Act or of any rule, regulation, direction or order made thereunder. The officer so appointed can, after holding reasonable enquiry into the allegations, impose penalty on the defaulting person or award such compensation as he thinks fit to the aggrieved person. The Central Government, in exercise of the powers conferred by clauses (p) and (q) of sub-section (2) of Section 87 of the Act, has framed the Information Technology (Qualification and Experience of Crl.Misc.Petition No.68896-M of 2006 -8- .... Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003 (for short, `the Rules'). Rule 4 of the Rules provides for the manner in which the adjudicating officer shall exercise his jurisdiction in respect of the contravention alleged relating to Chapter-IX of the Act. It is extracted below:- “4. Scope and manner of holding inquiry.- (a) the Adjudicating Officers shall exercise jurisdiction in respect of the contraventions in relation to Chapter IX of I.T.Act, 2000 and the matter or matters or places or area or areas in a State or Union Territory of the posting of the person. (b) The complaint shall be made to the Adjudicating Officer of the State or Union Territory on the basis of location of Computer System, Computer Network as defined in sub-section 2 of section 75 of I.T.Act on a plain paper on the proforma attached to these rules together with the fee payable calculated on the basis of damages claimed by way of compensation. © the Adjudicating Officer, shall issue a notice together with all the documents to all the necessary parties to the proceedings, fixing a date and time for further proceedings. The notice shall contain such particulars as far as may be as to the time and place of the alleged contravention, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed. Crl.Misc.Petition No.68896-M of 2006 -9- .... (d) On the date so fixed, the Adjudicating Officer shall explain to such person or persons to whom notice is issued about the contravention alleged to have been committed in relation to any of the provisions of the Act or of any rule, regulation, direction or order made thereunder. (e) If the person in respect of whom notice is issued pleads guilty, the Adjudicating Officer shall record the plea, and may impose penalty or award such compensation as he thinks fit in accordance with the provisions of the Act, rules, regulations, order or directions made thereunder. (f) Alternatively on the date fixed the person or persons against whom a matter is filed may show cause why an enquiry should not be held in the alleged contravention or that why the report alleging the contravention should be dismissed. (g) The Adjudicating Officer on the basis of the report of the matter, investigation report (if any), other documents and on the basis of submissions shall form an opinion that there is sufficient cause for holding an enquiry or that the report into the matter should be dismissed and on that basis shall either by order dismiss the report of the matter, or shall determine to hear the matter. (h) If any person or persons fails, neglects or refuses to appear, or present himself as required by sub-rule (d) before the Crl.Misc.Petition No.68896-M of 2006 -10- .... Adjudicating Officer, the Adjudicating Officer shall proceed with the inquiry in the absence of such person or persons after recording the reasons for doing so. (i) At any time or on receipt of a report of contravention from an aggrieved person, or by a Government agency or suo-moto, the Adjudicating Officer, may get the matter or the report investigated from an officer in the Office of Controller or CERT-IND or from the concerned Deputy Superintendent of Police, to ascertain more facts and whether prima facie there is a case for adjudicating on the matter or not. (j) The Adjudicating Officer, shall fix a date and time for production of documents or evidence and for this purpose may also rely on electronic records or communications and as far as may be, shall use or make available the infrastructure for promoting on-line settlement of enquiry or disputes or for taking evidence including the services of an adjudicating officer or infrastructure in another State. (k) As far as possible, every application shall be heard and decided in four months and the whole matter in six months. (l) Adjudicating Officer, when convinced that the scope of the case extends to the Offence (s) (under Chapter XI of I.T.Act) instead of contravention, needing appropriate punishment instead of mere financial penalty, should transfer the case to the Crl.Misc.Petition No.68896-M of 2006 -11- .... Magistrate having jurisdiction to try the case, through Presiding Officer.” Chapter-XI deals with the offences under the Act and the power to investigate the same. Section 78, which provides for the power to investigate the offences, is reproduced below:- “78. Power to investigate offences.- Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), a police officer not below the rank of Deputy Superintendent of Police shall investigate any offence under this Act.” A cumulative reading of the above extracted provisions of law reveals that if a person is aggrieved of the contravention of any provision of the Act, which has been done by any person or by a Government agency or even if the adjudicating officer forms such an opinion, then it is the adjudicating officer, who may resort to the following options:- (i) to get the matter or report investigated from an officer of the office of Controller or CERT-IND; and (ii) to get the matter investigated from the concerned Deputy Superintendent of Police to ascertain more facts and to see whether there is a prima facie case which requires adjudication or not. Similarly, when the adjudicating officer is convinced that the scope of the case extends to the offence(s) under Chapter XI of the Act instead of a contravention, which needs appropriate punishment and not Crl.Misc.Petition No.68896-M of 2006 -12- .... merely the imposition of a financial penalty, then in such an eventuality, he shall refer the matter to the Magistrate having jurisdiction to try the case. To understand the matter further, the offences under Chapter- XI of the Act which are broadly three in nature and content, are detailed below:- (i) Tampering with computer source documents – Section 65; (ii) Hacking with computer system – Section 66; and (iii) Publishing of information which is obscene in electronic form – Section 67. The aforesaid offences, if established, invite sentence of imprisonment or fine or both. It is relevant to state here that the allegations against the petitioners herein as made in the complaint by the respondent are that they had resorted to the commission of offence under Section 66 of the Act, i.e., hacking with computer system. That section is as under:- “66.Hacking with Computer System.- (1) Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking. (2) Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend Crl.Misc.Petition No.68896-M of 2006 -13- .... upto two lakh rupees, or with both.” Chapter-IX of the Act, on the other hand, provides for penalties and adjudication. Sections 43, 44 and 45 contained therein deal with the imposition of penalty for certain acts and omissions, which, on being established, can lead to the payment of damages by way of compensation not exceeding one crore rupees to the person so affected or imposition of penalty ranging between five thousand rupees for every day and one lakh & fifty thousand rupees for each failure. As noticed herein above, Section 46, which is contained in Chapter-IX of the Act, provides for adjudication of the contravention so complained of and appointment of the adjudicating officers. Thus, there are two types of offences mentioned in the Act, i.e, the one incorporated in Chapter-IX and the second in Chapter-XI. The framers of the Act were, therefore, clear in their mind that certain offences shall not invite the penal consequences and shall only invite monetary, compensatory mechanism, while the more serious offences as enumerated under Sections 65 to 67 shall invite both the penal consequences and fine. To establish whether the offences under Sections 65 to 67 of the Act have been committed or not, it is the Deputy Superintendent of Police, who can look into the matter when a complaint is submitted to him or where the adjudicating officer refers a matter to him under the provisions of Rule 4(i) of the Rules. Crl.Misc.Petition No.68896-M of 2006 -14- .... Secondly, if the adjudicating officer comes to the conclusion that a violation of any provision of law contained in Chapter-XI of the Act has taken place and the matter needs appropriate punishment instead of mere financial penalty, he will transfer the case to the Magistrate having jurisdiction to try such case. On the basis of the above discussion, it is amply clear that the learned Judicial Magistrate had no power to embark upon the summoning of the petitioners on the complaint filed by the respondent. It could have only been the adjudicating officer, who could have looked into the allegations as contained in the complaint to come to a conclusion and resort to a process as contemplated under Rule 4(i), but, concededly, the order of summoning could not have been passed. Accordingly, it is held that summoning order dated 31.1.2005 (Annexure P2) is held to be without jurisdiction and is liable to be set aside. As a consequence thereof, order dated 7.10.2006 (Annexure P5) also goes. In so far as the other contentions of the learned counsel for the petitioners are concerned, this Court is of the opinion that it would be premature to comment upon the same as it is in the domain of the adjudicating officer to look into the complaint of the respondent and follow the procedure of law by resorting to the provisions of Clause (i) or Clause (l) of Rule 4 of the Rules. However, the submission of the learned counsel for the petitioners that the complaint is belated as it was preferred after almost Crl.Misc.Petition No.68896-M of 2006 -15- .... eleven months of the alleged commission of the violation of the provisions of the Act is seemingly attractive. The only allegation is that some E-mails written by the respondent were used to procure the benefit of pre-arrest bail by petitioner nos. 2 to 4, which was granted on 9.11.2002 after due notice to her and she had hotly contested those proceedings, but the complaint was filed belatedly. However, since the order of summoning has been held to be without jurisdiction, nothing much needs to be said about the delay in the filing of complaint at this stage. For the reasons stated above, this petition is accepted in the following terms:- “The summoning order dated 31.1.2005 (Annexure P2) and revisional order dated 7.10.2006 (Annexure P5) are set aside and it is held that the respondent's complaint dated 11.9.2003 (Annexure P1) under the provisions of the Act was not maintainable before the learned Judicial Magistrate.” March 11,2008 ( Mahesh Grover ) “SCM” Judge