ADJUDICATION OF CYBER-CRIME & CONTRAVENTIONS: Scheme

The IT Act, 2000 provides the following authorities for justice dispensation system for
cyber crimes.
◆ Controller of Certifying Authorities (CCA)
◆ Adjudicating Officer (AO)
◆ Appellate Tribunal (AT)
◆ High Court

 Scheme of Adjudication under I.T. Act, 2000 is divided on the basis of nature of cyber- crime
or nature of ‘cyber-wrong’.
 Criminal nature of cyber-wrongs can be prosecuted under or as per the provisions of Code of
Criminal procedure and the Courts can be decided on the basis of punishment or sentencing
prescribed for the offence and accordingly the same can be decided.
 Contraventions: case can be filed before ‘Adjudicating Officer’ in the area where there is,
appointed duly by Central Government.
 Cyber Crimes: “appropriate Courts as per the Code of Criminal procedure.

CONTRAVENTIONS AND ADJUDICATION

SECTION 46: POWER OF ADJUDICATION: ADJUDICATING OFFICER

 Adjudication under I.T. Act, is a self-contained code and accordingly can have its
jurisprudence.
 This kind of adjudication is based on cause-effect-compensation approach and the idea is the
defaulter has to make good of the losses.
 Deemed to be Civil Court: By virtue of Section 46, Section 58 and Notification (Scope and
Manner of Holding Inquiry) issued by Central Government in 2003, adjudicating officer is to
act as a quasi-judicial authority with all the powers of Civil Court and is deemed to be so.
And as such, A.O. can have following powers by virtue of the same:
1. To exercise jurisdiction in respect of the contravention
2. To receive complaint from the complainant
3. To issue notices to the necessary parties and fix a date for further proceeding
4. Inquiry, Investigation or dismissal: To hold inquiry, or to dismiss the matter or to get
the matter investigated
 5. To enforce the attendance of any person
6. To call for production of documents including physical and digital evidences
 Adjudicating Officer, as per sub-section (5) of Section 46, is:
1. Deemed to be “civil court”
2. All proceedings are deemed to be “judicial proceedings”
 Powers of A.O.: As per Section 58 (2), an Adjudicating Officer shall have, for the purposes
of discharging its functions under this Act, the same powers as are vested in a civil court
under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the
following matters, namely:--
(a) summoning and enforcing the attendance of any person and
examining him on oath;
(b) requiring the discovery and production of documents or other electronic records;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses or documents;
(e) reviewing its decisions;
(f) dismissing an application for default or deciding it ex pane;
(g) any other matter which may be prescribed.

 Jurisdiction: pecuniary, subject matter and territorial:

o I.T. Act as far as contraventions and offence are concerned, is having extra-territorial
application including applicable to any foreigner who commits contravention, as per
the law and requirements laid down in the Section 1 & 75 of I.T. Act.

o By virtue of sub-section (1) of Section 46 I.T. Act, subject matter jurisdiction

is given to the special officers to try cyber wrongs which civil in nature or which does
not involve criminal element.
o By introduction of Section 46(1A), I.T. Act has limited the jurisdiction of A.O. and
introduced new concept of pecuniary jurisdiction by providing parallel jurisdiction
to the Appropriate Civil Court (High Court) to decide the such contraventions
involving claim more than 5 crore.
o A.O. is the court of first instance in case of adjudication of
“contraventions” and “failure to protect data.”
Section 57. Appeal to [Appellate Tribunal].–(1) Save as provided in sub-section (2), any
person aggrieved an order made by controller or an adjudicating officer under this Act may
prefer an appeal to a [Appellate Tribunal] having jurisdiction in the matter. (2) No appeal shall
lie to the [Appellate Tribunal] from an order made by an adjudicating officer with the consent of
the parties. (3) Every appeal under sub-section (1) shall be filed within a period of forty-five
days from the date on which a copy of the order made by the Controller or the adjudicating
officer is received by the person aggrieved and it shall be in such form and be accompanied by
such fee as may be prescribed: Provided that the [Appellate Tribunal] may entertain an appeal
after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause
for not filing it within that period. (4) On receipt of an appeal under sub-section (1), the
[Appellate Tribunal] may, after giving the parties to the appeal, an opportunity of being heard,
pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order
appealed against. (5) The [Appellate Tribunal] shall send a copy of every order made by it to the
parties to the appeal and to the concerned Controller or adjudicating officer. (6) The appeal filed
before the [Appellate Tribunal] under sub-section (1) shall be dealt with by it as expeditiously as
possible and endeavour shall be made by it to dispose of the appeal finally within six months from
the date of receipt of the appeal.

Section 58. Procedure and powers of the Appellate Tribunal].–(1) The [Appellate Tribunal]
shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908)
but shall be guided by the principles of natural justice and, subject to the other provisions of this
Act and of any rules, the 1 [Appellate Tribunal] shall have powers to regulate its own procedure
including the place at which it shall have its sittings. (2) The 1 [Appellate Tribunal] shall have,
for the purposes of discharging its functions under this Act, the same powers as are vested in a
civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of
the following matters, namely:– (a) summoning and enforcing the attendance of any person and
examining him on oath; (b) requiring the discovery and production of documents or other
electronic records; (c) receiving evidence on affidavits; (d) issuing commissions for the
examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application
for default or deciding it ex parte; (g) any other matter which may be prescribed. (3) Every
proceeding before the 1 [Appellate Tribunal] shall be deemed to be a judicial proceeding within
the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal
Code (45 of 1860) and the 1 [Appellate Tribunal] shall be deemed to be a civil court for the
purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
Section 61: Civil court not to have jurisdiction.–No court shall have jurisdiction to entertain
any suit or proceeding in respect of any matter which an adjudicating officer appointed under
this Act or the 1 [Appellate Tribunal] constituted under this Act is empowered by or under this
Act to determine and no injunction shall be granted by any court or other authority in respect of
any action taken or to be taken in pursuance of any power conferred by or under this Act.

Section 62: Appeal to High Court.–Any person aggrieved by any decision or order of the
[Appellate Tribunal] may file an appeal to the High Court within sixty days from the date of
communication of the decision or order of the [Appellate Tribunal] to him on any question of
fact or law arising out of such order: Provided that the High Court may, if it is satisfied that
the appellant was prevented by sufficient cause from filing the appeal within the said period,
allow it to be filed within a further period not exceeding sixty days.

CONTRAVENTION

1. Controller/Adjudication Officer- Aggrieved- 45 Days- (+With cause) Appellate tribunal

2. Appellate Tribunal- 60 Days ( With cause) Appeal High court

ADJUDICATION OF CYBER CRIMES

Jurisdiction of Criminal courts to try Cyber Crimes:

 Chapter II of Schedule I
 Section 26 of Code of Criminal Procedure
 I.T Act is silent
 Chapter I of Schedule I is specifically for offences defined under IPC
 Classification under I.T. Act is based on:
1. Nature of offences
2. Sentencing/punishment prescribed
 First conviction: 05 Judicial Magistrate
Sr. # Transmission etc. of
Cyber obscene
Crime yrs. &Punishment
fine First Class Court
Criminal
09 material containing SEXUALLY Second/subsequent
Tampering with Computer Source Judicial Magistrate
EXPLICIT ACT ETC. (Section 03 years 7oryrs.fine
conviction: & or First Class
01 Code (Section 65)
67A) both
fine
Cracking (Computer Related 03 years
First conviction: 05 or Judicial Magistrate
or fine
02 Offences): (Section
Transmission etc. of66)
material both& fine
yrs. First
First Class
Class
10 Punishment for dishonestlyin
DEPICTING CHILDREN Second/subsequent Judicial Magistrate
03 receiving stolen computer
Sexually explicit resource
act etc. (Section & or First Class
03 years 7oryrs.fine
conviction:
or communication device (Section fine
both
67B)
66B)
Judicial Magistrate
04 Identity theft (Section 66C) 03 years and fine First Class
Cheating by personation in Judicial Magistrate
05 cyberspace (Section 66D) 03 years and fine First Class
03 years or fine or Judicial Magistrate
06 Violation of privacy (Section 66E) both First Class
07 Cyber Terrorism (Section 66F) Imprisonment for Life Sessions Court
08 Transmission etc. of obscene First conviction: 03 Judicial Magistrate
material (Section 67) yrs. & fine First Class
Second/subsequent
conviction: 5 yrs. &
fine

CYBER CRIMES UNDER I.T. ACT:

1. Tampering with Computer Source Code (Section 65)

 Bailable
 Cognizable

2. Hacking (Computer Related Offences): (Section 66)

 Bailable
 Cognizable

3. Punishment for dishonestly receiving stolen computer

resource or communication device (Section 66B)

 Bailable
 Cognizable

4. Identity theft (Section 66C)

 Bailable
 Cognizable

5. Personation in cyberspace (Section 66D)

 Bailable
  Cognizable

6. Violation of privacy (Section 66E)

 Bailable
 Cognizable

7. Cyber Terrorism (Section 66F)

 Non-bailable
 Cognizable

8. Obscenity in electronic form: (Section 67-67B)

i. Transmission etc. of obscene MATERIAL (Section 67)

 Bailable as well as non-bailable (on 2nd conviction)

 Cognizable
ii. Transmission etc. of obscene material containing SEXUALLY
EXPLICIT ACT ETC. (Section 67A)

 Non-bailable
 Cognizable
iii. Transmission etc. of material DEPICTING CHILDREN in
Sexually explicit act etc. (Section 67B)

 Non-bailable
 Cognizable

COGNIZANCE, BAIL & INVESTIGATION OF CYBER-CRIME:

 Section 156 of Code of Criminal Procedure confers power on Police Officer to investigate
cognizable offences.

 FIR and complaint before Magistrate are the two different modes of initiation action for
offences or initiating ‘criminal prosecution’.

Section 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 Inspector shall investigate any offence under this
Act.
 Section 77B: Offences with three years imprisonment to be bailable Notwithstanding
anything contained in the Code of Criminal Procedure, 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.

Section 80 Power of police officer and other officers to enter, search, etc
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
any police officer, not below the rank of an Inspector, or any other officer of the Central
Government or a State Government authorised by the Central Government in this behalf
may enter any public place and search and arrest without warrant any person found
therein who is reasonably suspected of having committed or of committing or of being
about to commit any offence under this Act.
Explanation.-For the purposes of this sub-section, the expression "public place" includes
any public conveyance, any hotel, any shop or any other place intended for use by, or
accessible to the public.
Where any person is arrested under sub-section (1) by an officer other than a police officer,
such officer shall, without unnecessary delay, take or send the person arrested before a
magistrate having jurisdiction in the case or before the officer-in-charge of a police station.
The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, subject to the
provisions of this section, apply, so far as may be, in relation to any entry, search or arrest,
made under this section.

 INVESTIGATION of cyber-crime (as opposed to contravention) regardless of what is

there in Code of Criminal Procedure is with the Police Officer not below the rank of
Inspector, under this Act. So any ‘Police Officer’ not below the rank of ‘Inspector’, could
conduct the investigation of cyber-crime under Information Technology Act, 2000.

 But if the case is registered under Code of Criminal Procedure, then the power of
investigation shall lie before appropriate police officer as per the provisions of Code of
Criminal Procedure and not as per this Act.

Section 81. Act to have overriding effect.–The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any other law for the time being in
force. [Provided that nothing contained in this Act shall restrict any person from exercising any
right conferred under the Copyright Act, 1957 (14 of 1957) or the Patents Act, 1970 (39 of 1970