Section 80: Power of police office and other officers to enter, search, etc-Deleted.
This deletion is an absurd suggestion given by the Committee. It seems the Committee endorses the view that the IT Act is a “private issue” and the law enforcement agencies and the Courts must keep their hands off. It seems the proposed IT Act no more satisfy the traditional purpose of law making, i.e. a measure to preserve and maintain social order. The public interest is different from the private interest that seems to have favoured the Committee while suggesting the deletion of section 80.
The correct approach is to give proper “training” to the police officers and judicial officers dealing with Cyber Laws so that justice can be done to the accused, victim and the society. The power of the police officers should not be taken away.
It would serve the interest of justice if the police officers “consult” the Cyber law experts before taking an action, till they are well equipped with the Cyber Laws.
Section 80A: Compounding of Certain Offenses
(1) Notwithstanding any thing contained in the Code of Criminal Procedures, 1973, any offense punishable under this Act may either before or after the institution of any prosecution be compounded by
(a) the Controller; or
(b) the adjudicating officers appointed under section 46, where the maximum amount of fine and/or imprisonment does not exceed such limits as may be specified by the Central Government.
on payment or credit to the Central Government of such sum as the Controller or the Adjudicating officer, as the case may be, may specify.
(2) Nothing in sub-section (1) shall apply to an offence committed by a person within a period of three years from the date on which a similar offence committed by him was compounded under this section.
Explanation: For the purpose of this section any second or subsequent offence committed after the expiry of a period of three years from the date on which the offence was previously compounded, shall be deemed to be a first offence.
(3) Where any offence is compounded before the institution of any prosecution, no prosecution shall be instituted in relation to such offence, either by the Controller or by the adjudication officer or by any other person, against the offender in relation to whom the offence is so compounded.
(4) Where the composition of any offence is made after the institution of any prosecution, such composition shall be brought by the Controller or the adjudicating officer in writing, to the notice to the Court in which the prosecution is pending and on such notice of the composition of the offence being given, the person in relation to whom the offence is so compounded shall be discharged.
This again is not a good suggestion to be accepted. The reasons are numerous and some of them will be discussed here.
Firstly, the Cr.P.C has been totally excluded in this context. The Cr.P.C contains section 320 that provides for the compounding of offences contained in I.P.C. Now section 320 is divided into two parts. Section 320(1) respects the party autonomy and victimology aspects. The victim can compound the offences specified in Table-1 without the intervention and permission of the court. Section 320(2), on the other hand, allows the victim of the offence to compound the offence with the permission of the court, for the offences mentioned in Table-2. Section 320(8) provides that a compounding of an offence under section 320 will amount to “acquittal’ of the accused. Now if section 320 is “overridden” by section 80A then “all the offences” related to Cyber Crimes and Contraventions under the I.P.C and other laws for the time being in force will be made automatically compoundable too because section 80A is not subject to “Tables” unlike section 320. Thus, practically the bar of “specified compoundable offences” is not there under section 80A.
Secondly, the blanket protection of compounding the offences and contraventions either before or after the institution of any prosecution without any safeguard of “specified compoundable offences” cannot be accepted to be rationale and reasonable in any society. If “all” the offences and contraventions can be compounded then there is no need of putting these offences and contraventions in the IT Act.
Thirdly, a “bar of jurisdiction” has been created by section 80A (3) if the offence or contravention has been compounded before the institution of the prosecution. Now suppose the “privacy” of an individual has been violated and he is planning to file a complaint before the competent authority. If that privacy violation is compounded before that complaint, then he cannot file that complaint at all. The worst part about this process is that there is no need of “consulting” the “aggrieved party”.
Fourthly, an ‘obligation” has been imposed upon the courts to discharge the accused if the compounding has been done after the institution of the proceedings. Thus, no discretion whatsoever has been given to the courts.
Section 81: General Provisions
(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
(2) Nothing that is permitted under the Copyright Act 1957 and the Patents Act 1970 as amended from time to time shall render any person liable for contravention of any of the provisions of this Act.
This is a welcome provision that will go a long way in the overall economic development of the nation. This will also reduce the chances of prosecution for innocent and inadvertent IT Act violations that are permitted as per Copyright Act and Patents Act. It would be better if the protection is also extended to other IPRs as well particularly the Trade Marks Act, 1999.
Section 85: Offences by companies
(1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to punishment (if he proves-Deleted) unless it is proved that the contravention took place with (without-Deleted) his knowledge and connivance and that he failed to prevent such contravention. (or that he exercised all due diligence to prevent such contravention-Deleted).
This is a “peculiar” suggestion. It seems the Committee got confused with the “burden of proof” aspect between a “natural person” and an “artificial person”.
The law expects every person to act fairly, reasonably and diligently. That is why deviations from these standards are made punishable by the law. One cannot in the zeal of earning profit or in the sense of indifference take the law casually. There are certain well-recognised cardinal principles of criminal laws, which need to be discussed before proceeding further. These are:
(1) The ignorance of law is no excuse,
(2) The “presumption of innocence” continues until the guilt of the accused is proved,
(3) The guilt of the accused must be proved “beyond reasonable doubt”,
(4) No person is guilty of an offence unless it is accompanied by an act/ omission and the guilty intention for the same,
(5) The law may presume the guilty intention if the commission of the act is proved. This is known as “strict liability offences”, and
(6) The law may fix the liability of certain individuals on a “notional basis”. This usually happens where a company is involved in the commission of an offence or wrong. The imputation of criminal liability to certain “natural persons” is logical because a company, being an artificial person, cannot operate automatically. Thus, to conduct the affairs of the company certain natural persons are required, who alone can be saddled with the liability of the wrongs committed by the company.
Now it is logical and reasonable to fix the “burden of proof” upon the prosecution where natural persons are involved in the commission of an offence. The same yardstick and parameters cannot, however, be made applicable to an artificial person like company, though ultimately it is manned by natural persons. That is why the burden of proof is upon the company to prove its innocence. For instance, a natural person can be held liable for murder, grievous hurt, etc. If we are applying the “normal rules’ of criminal law then perhaps the Companies must also be held liable for “manslaughter”, grievous hurt, etc. That will bring absurd results. That is why a “reasonable classification’ has been made between natural and artificial persons and the same should not be mixed at any cost. If this suggestion is accepted, then we have to change all the existing laws that contain a “standard form clause” regarding the liability of the Companies. The liability clause in the IT Act is exactly same as is found in all other statutes. Even otherwise, in the ultimate analysis the prosecution has to prove the guilt of the accused beyond reasonable doubts once the preliminary burden of proof is discharged by the person managing the company. It seems the Committee has fixed the preliminary burden of proof upon the prosecution unlike other statutes where it is upon the company.
End of the series. A consolidated critical evaluation along with the recommendations will follow shortly.
Thank you
Praveen Dalal
Consultant and Advocate
Delhi High Court
Tele No: 9899169611
Mail:
pd37@rediffmail.com 
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