Classification of offences under the Information Technology Law

This post was written by Neeraj Aarora on January 31, 2009
Posted Under: Cyber Offenses / Contravention,IT Amendment Act

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NEERAJ AARORA, AICWA, LLB, Law PGD (Cyber), CFE (USA)

Classification of offences under the Information Technology Law

Whether an offence other than those prescribed under the Indian Penal Code i.e. special acts is cognizable/bailable or otherwise has to be decided in accordance with the specific provision, if any, under the special act in question. In absence of the specific provision, one has to look upon the First Schedule appended to the Code of Criminal Procedure (Cr.P.C.). Part-II classifies the offences against other laws, which are laws other than the various categories of crimes enumerated in the Indian Penal Code, 1860 (for short ‘the IPC’). This Part-II classifies the offences under various special enactments into three distinct categories as mentioned below:

OFFENCE Cognizable or non cognizable Bailable or Non-bailable By what Court Triable
If punishable with death , imprisonment for life or imprisonment for more than 7 years Cognizable Non-Bailable Court of Session
If punishable with imprisonment for 3 years and upwards but more than 7 years Ditto Ditto Magistrate of 1st Class
If punishable with imprisonment for less than 3 years or with fine only Non-Cognizable Bailable Any Magistrate

Classification of offences under the existing Information Technology Act, 2000

Under the existing IT Act, 2000, whether the offence under the IT Act is cognizable/bailable or otherwise was decided in accordance with Section 2 (a) & 2 (c) read with 1st Schedule of the Cr.P.C. because there was no specific provision under the existing IT Act, 2000 classifying the offences as cognizable/bailable or otherwise. Thus, the offences under the existing IT Act, 2000 can be classified as follows:

OFFENCE Punishment Cognizable or non cognizable Bailable or Non-bailable
Section 65: Tampering with computer source documents Imprisonment upto three years and/or Fine upto Rs. 2 Lakhs Cognizable Non bailable
Section 66: Hacking with Computer system -do- -do- -do-
Section 67: Publishing obscene information in electronic form First Conviction: Imprisonment upto five years and Fine upto Rs. 1 Lakhs Second or subsequent Conviction :Imprisonment upto Ten years and Fine upto Rs. 2 Lakhs -do- -do-
Section 68 (2): Failure to comply with the order/direction of controller Imprisonment for a term not exceeding three years or to a fine not exceeding two lakh rupees or to both -do- -do-
Section 69 (3): Failure to extend facilities to decrypt information to controller or any agency of government Imprisonment for a term which may extend to seven years -do- -do-
Section 70 : Unauthorized access to protected system Imprisonment up to 10 years and fine -do- -do-
Section 71: Penalty for misrepresentation Imprisonment up to 2 years and/or fine upto Rs. 1 Lakhs Non Cognizable Bailable
Section 72: Breach of Confidentiality & privacy -do- -do- -do-
Section 73: Publishing false Digital Signature Certificate -do- -do- -do-
Section 74: Publication for fraudulent purpose -do- -do- -do-

Classification of offences under the Information Technology (Amendment) Bill, 2006

Section 77-B has been inserted under the proposed amendment bill as per which the offence punishable with imprisonment of three years and above shall be cognizable and the offence punishable with imprisonment of three years shall be bailable. The text of inserted Section 77-B is as follows:

“S-77B Offences with three years imprisonment to be cognizable

(1) Notwithstanding anything contained in Criminal Procedure Code 1973, the offence punishable with imprisonment of three years and above shall be cognizable and the offence punishable with imprisonment of three years shall be bailable.”

The operation of 1st Schedule of the Cr.P.C. has been made inapplicable by insertion of this section. However, with the insertion of this section, the offences can be categorized as under:

OFFENCE Cognizable or non cognizable Bailable or Non-bailable
The offence punishable with imprisonment less than 3 years Non cognizable Bailable
The offence punishable with imprisonment of three years Cognizable Bailable
The offence punishable with imprisonment of more than three years Cognizable Non-Bailable

Thus, as per the scheme of the newly inserted Section 77-B, the offences under the amendment bill can be classified as follows:

OFFENCE Punishment Cognizable or non cognizable Bailable or Non-bailable
Section 65: Tampering with computer source documents Imprisonment upto three years and/or Fine upto Rs. 2 Lakhs Cognizable Bailable
Section 66: Hacking with Computer system (if done dishonestly or fraudulently) Imprisonment upto three years and/or Fine upto Rs. 5 Lakhs -do- -do-
Section 66A: Punishment for sending offensive messages through communication service, etc Imprisonment for a term which may extend to three years and with fine -do- -do-
Section 66B: Punishment for dishonestly receiving stolen computer resource or communication device Imprisonment upto three years and/or Fine upto Rs. 1 Lakhs -do- -do-
Section 66C: Punishment for identity theft Imprisonment upto three years and Fine upto Rs. 1 Lakhs -do- -do-
Section 66D: Punishment for cheating by personation by using computer resource -do- -do- -do-
Section 66E: Punishment for violation of privacy Imprisonment upto three years and/or Fine upto Rs. 2 Lakhs -do- -do-
Section 66F: Punishment for cyber terrorism May extend to Life imprisonment -do- Non bailable
Section 67: Publishing obscene information in electronic form First Conviction: Imprisonment upto three years and Fine upto Rs. 5 Lakhs Second or subsequent Conviction :

Imprisonment upto five years and Fine upto Rs. 10 Lakhs

-do- Bailable in case of first conviction only. Second or subsequent conviction shall be non bailable
Section 67A: Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form First Conviction: Imprisonment upto Five years and Fine upto Rs. 10 Lakhs Second or subsequent Conviction :

Imprisonment upto Seven years and Fine upto Rs. 10 Lakhs

-do- Non-bailable in both first and second conviction
Section 67B: Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form -do- -do- -do-
Section 67C (2): Deliberate Failure by the intermediary to preserve and retain information as specified by the Central Government Imprisonment upto three years and Fine -do- Bailable
Section 68 (2): Deliberate Failure to comply with the order/direction of controller Imprisonment for a term not exceeding two years or to a fine not exceeding one lakh rupees or to both Non cognizable -do-
Section 69 (4): Failure to extend facilities to decrypt information to govt. notified agency Imprisonment for a term which may extend to seven years and fine Cognizable Non bailable
Section 69A (3): Punishment for failure by the intermediary to comply with the order of the notified agency to block websites etc. -do- -do- -do-
Section 69B (4): Deliberate failure by the intermediary to provide the notified agency with the technical assistance or online access to the computer resource Imprisonment for a term which may extend to three years and fine Non Cognizable bailable
Section 70: Unauthorized access to protected system directly or indirectly affects the facility of Critical Information Infrastructure Imprisonment up to 10 years and fine Cognizable Non bailable
Section 72A: Punishment for Disclosure of information in breach of lawful contract Imprisonment for a term upto three years or to a fine upto Rs. 5 Lakhs or to both -do- Bailable

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Reader Comments

Good informative piece of article. It seems that most of the offences after the amendment would become bailable.

#1 
Written By K. Rajagopalan on February 2nd, 2009 @ 10:02 AM

It is not understandable why the government is giving a free hand to commit cyber crime. India would soon become a favorite spot to committ cyber crime.

#2 
Written By Rajshekhar on February 9th, 2009 @ 8:55 AM

The so called expert committee to review the IT Act consisted of many persons representing varying vested interest. They do not have any idea of ground realities and current situation. They instead of making the law more stringent, diluted most of the penal provisions by making them bailable. Now, the cyber criminal would commit the cyber crime without fear of law with impunity and the police have to mandatorily release him on bail. Where the police can seek custodial interrogation of the accused/thief who has committed theft of bicycles, but it can not do so in the case of hacker who may have committed online data theft involving crores of rupees.
You can send the detailed facts of your query at: Cyber.nk@gmail.com

#3 
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#8 
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#9 
Written By mens soccer shoes on July 17th, 2011 @ 8:35 AM

since section 77-B states ” Notwithstanding anything contained in Criminal Procedure Code 1973, the offence punishable with imprisonment of three years and above shall be cognizable and the offence punishable with imprisonment of three years shall be bailable.”

Now since 66-A says imprisonment upto three years and fine, hence don’t you feel that the offence becomes non-cognizable as per provisions provided under 77-B. Also you yourself have stated that section 69-B, which has the same provisions of punishment as section 66-A is non-cognizable.

Kindly clarify.

Regards,

#10 
Written By Manish on September 10th, 2012 @ 8:50 PM

Nice pice of information, but unfortunately we have no cyber tribunals as of now courts as well as police is not aware of the procdures under IT act 2000.

Abhishek Bhatnagar
Advocate
Cyber Law Consultant & Cyber Forensics Experts.
C/0 CYBERONICS INDIA

#11 
Written By ABHISHEK BHATNAGAR on March 14th, 2013 @ 8:11 AM

thanks for the information. Its really helpful.

#12 
Written By girish nagori on September 20th, 2013 @ 3:18 PM

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#13 
Written By farsana on April 5th, 2014 @ 10:08 PM

Nice ,sharing knowledge is good.

#14 
Written By babita on May 21st, 2014 @ 2:01 PM

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