Amrik Singh Juneja v State of Punjab and another

Punjab And Haryana High Court

 14 February 2013

CRM-M No. 23026 of 2012 (O & M)

The Judgment was delivered by : Sabina, J.

1. Petitioner has filed this petition for quashing of FIR No. 130 dated 10.6.2010 (Annexure P1) registered at Police Station Civil Lines, Patiala, District Patiala for offences under Sections 66, 43 of the Information Technology Act, 2000 as well as subsequent proceedings arising therefrom including order dated 10.7.2012 (Annexure P4) passed by the Court of learned Judicial Magistrate Ist class Patiala whereby application for dropping the proceedings filed by the petitioner has been dismissed. 2. Learned counsel for the petitioner has submitted that the letter in dispute had been,allegedly, written by the petitioner on 29.2.2008. The matter was reported to the Police on 14.3.2008,whereas, offence with regard to hacking of a computer was inserted in the Act with effect from 27.10.2009. The act committed u/s. 43 of the Act became punishable u/s. 66 of the Act with effect from 27.10.2009 by virtue of Act 10 of 2009. Thus, at the time when the petitioner had, allegedly, issued the letter in question, no offence could be said to have been committed by the petitioner under the Act. FIR in question was registered on 10.6.2010. Petitioner is the father-in-law of respondent No.2. Respondent No.2 and daughter of petitioner No.3 are having matrimonial litigation and the present FIR , in fact, is the outcome of the said matrimonial dispute. The matter was duly investigated by the Police and the Superintendent of Police after inquiry had opined that the allegations levelled by respondent No.2 in the application were not proved. The Senior Superintendent of Police had forwarded the said inquiry report,Annexure P2, vide Annexure P3 to the Inspector General of Police for further necessary action with the recommendation that no offence could be said to have been committed by the petitioner. 3. Learned State counsel, on the other hand, has opposed the petition. 4. None has appeared on behalf of respondent No.2. Admittedly, now challan has been presented against the petitioner. Petitioner moved an application before the trial Court for dropping the proceedings against him. Vide order dated 10.7.2012, the Magistrate dismissed the said application. 5. S. 43 of the Act reads as under:- 43.[ Penalty and compensation] for damage to computer, computer system, etc.- If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network,- (a) accesses or secures access to such computer, computer system or computer network [or computer resource]; (b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium; (c)introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network; (d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network; (e) disrupts or causes disruption of any computer, computer system or computer network; (f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means; (g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder; (h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network, [(i)destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means] 1.(j) steal, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage;] 2. [he shall be liable to pay damages by way of compensation to the person so affected]. Explanation.- For the purposes of this section,-Explanation.- For the purposes of this section,- (i)"computer contaminant'' means any set of computer instructions that are designed- (a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or (b) by any means to usurp the normal operation of the computer, computer system, or computer network; (ii) '' computer data base'' means a representation of information,knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network; (iii) '' computer virus'' means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed or some other event takes place in that computer resource; (iv) '' damage'' means to destroy, alter, delete, add, modify or rearrange any computer resource by any means. 3(v)"computer source code" means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.]" 6. S. 66 prior to the amendment provided that whoever with intend 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 and whoever commits hacking shall be punished with imprisonment upto three years, or with fine which may extend upto two lakh rupees, or with both. Vide Act 10 of 2009, S. 66 of the Act was amended and the said amendment came into force with effect from 27.10.2009. 7. S. 66 and 66(a),after amendment, reads as under:- "[66.Computer related offences.-If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both. Explanation.- For the purposes of this section,- (a) the word "dishonestly" shall have the meaning assigned to it in s. 24 of the Indian Penal Code (45 of 1860); (b) the word "fraudulently" shall have the meaning assigned to it in s. 25 of the Indian Penal Code (45 of 1860). 66A.Punishment for sending offensive messages through communication service, etc.- Any person who sends, by means of a computer resource or a communication device,- (a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages' shall be punishable with imprisonment for a term which may extend to three years and with fine. Explanation.-For the purpose of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message." 7. Thus, in view of the amendment in S. 66 of the Act, if any person does any act referred to in S. 43 of the Act shall be punishable with imprisonment which may extend to three years or fine which may be extended to Rs 5,00,000/- or with both. In the present case, the act in question had, allegedly, been done by the petitioner on 29.2.2008. At that time, the amendment in S. 66 of the Act had not come into force and thus, at that time, petitioner was not liable for punishment under Sections 66,66-A of the Act. The complainant, if aggrieved, could have claimed damages u/s. 43 of the Act. In these circumstances, the petitioner cannot be criminally prosecuted after the amendment had come into force as at the relevant time, no offence was allegedly committed by the petitioner, as the same was not punishable at that time under Sections 66,66 Aof the Act. Hence, continuation of criminal proceedings aganist the petitioner would be nothing but an abuse of process of law. 8. Accordingly, this petition is allowed. FIR No. 130 dated 10.6.2010 (Annexure P1) registered at Police Station Civil Lines, Patiala, District Patiala for offences under Sections 66, 43 of the Act, as well as subsequent proceedings arising therefrom including order dated 10.7.2012 (Annexure P4) are quashed. Petition allowed