For a long time, the law on simultaneous applicability of the Indian Penal Code (hereinafter called ‘IPC’) and Information Technology Act, 2000 (hereinafter called ‘IT Act, 2000’) was unclear as after the IT Act came into force in 2000 the debates in this regard revolved around whether these two statutes can be invoked simultaneously, or whether one takes precedence over the other, or whether the prosecuting authority can choose which statute to invoke. A significant overlap between the laws referred to in these statutes resulted in this problem.
There have been many recent judgments that raise this concern. The Hon’ble Bombay High Court in the case of Gagan Harish Sharma v. The State of Maharashtra 2019, an alleged case of a data theft where the offence of the accused falls under both the Information Technology Act and Indian Penal Code. As per the High Court, this would be a gross violation of Article 20(2) of the Constitution of India, which protects against double jeopardy. The High Court quashed the investigation into the offences of cheating, criminal breach of trust by an employee and theft punishable under IPC but allowed prosecution for an offence under the IT Act, 2000.
In its judgment, the High Court held that the special law designed to curb cybercrime that would take precedence when the actions of an accused are covered by both laws. Accordingly, Section 81 of the IT Act, 2000 has been given overriding effect to cover an act of criminality contained in the Indian Penal Code, which is a special law that must take precedence over general law.
The Bombay High Court referred the case of Sharat Babu Digumarti v. Govt. of NCT of Delhi (AIR 2017 SC) the Hon’ble Supreme Court held that when an accused’s actions breach both the IT Act, 2000 and IPC, both of which contain identical elements, a charge under the former renders a charge under the latter invalid. Section 81 of the IT Act, 2000 contains a non-obstante provision that gives an overriding effect over any other law currently in force.
INTENTION OF LEGISLATURE
The non-obstante clause in Section 81 of the IT Act, 2000 is a clear indication that the legislature intends to de-emphasize the IPC in favour of the IT Act as the primary code on electronic offences. The second important position of this legal soundness is that there are significant differences between the IPC and the IT Act in terms of the extent of punishments and other provisions. As an example, under Section 420 of the IPC, cheating is not bailable, compoundable, and carries a maximum penalty of seven years and a fine. In comparison, Sections 65 and 66 of the IT Act allow bail, compoundable, and a maximum sentence of just three years. An interpretation of the IT Act that favours the accused is clear on this point.
SUGGESTION AND CONCLUSION
Article 14 of the Constitution of India is violated by the different punishment, bail, and compounding standards in the IT Act. As a result, the difference between those who use electronic devices to commit an offence and those who do not use them is unreasonable and unfair. To rectify such unfair distinctions, suitable amendments could be made to the IPC or the IT Act to harmonize the punishments. The legislature can also opt to expand only the IPC so that requisite amendments can be made to the IPC and to include even electronic-based crimes.
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