CHAPTER 12

OFFENCES UNDER THE ACT

The law only has
sledgehammers, when what we need
are
parking
tickets and
speeding tickets".
-Mitch Kapor, the
cyberpunk
contravention is a mere violation of law or rule of
A
may not be punishable
or
with liability a
to pay procedure. It may
only, An offence' is an act penalty (or compensation)
a
prohibited and made'punishable by fine and/or
imprisonment. Contravention is generic whereas offence is
specific.
The Cyber Offences
Cyber crime is a collective term
'cyber offences'. The word cyber'encompassing
and both 'cyber contraventions'
is with computer,
system or computer network. Thus, cyber synonymous
crime may be defined as computer
that involves a any illegal act
computer, computer system or computer network, i.e. aný
act for which illegal
knowledge of computer technology is essential for its perpetration,
investigation, or prosecution.
Ihe
mens rea in case of 'cyber crime' comprises of two elements.
ere must be
'intent to secure access to any First,
program o r data held in any
puter, Computer system or computer network. Secondly, the
AOW at
the time that he person must
commits the actus reus that the access he intends to
E 15
unauthorised. The intent does not have to be directed at
any particular
am or data or at
Or computer network. progranms or data held in any computer, computer system

F
difference between 'cyber contravention' and 'cyber offence is more
he degree and extent of criminal activity rather than anything else.
COMniPE, a mere unauthorised access to a computer, computer system or

it isaputer network mayy amount to 'cyber contravention' but for a 'cyber offence'
the
a computer,specific criminal al violation that resulted from the unauthorised access to
has to be computer system or computer network or computer resource that
aken into
consideration.

2 dee (section 2(n) of Cr.P.C.]

"Mens
rea"
is a state
1s
and [section 40 of I.P.C.
intention" andstate of mind. Under criminal law, mens rea is considered as the "guilty
CTime ho nd unless it is found that the 'accused' had the guilty intention to commit the
Direct not be held 'guilty' of committing the crime.
AIR SCW 636) orcement v. M.C.T.M. Corpn. (P.) Ltd., (1996) 2 SCC 471: AIR 1996 SC 1100: 1996
636).
159
 160 Information Technology- Law and Practice

Table 12.1: Comparison Between Cyber Contraventions and Cvh

ber Offence
Cyber Contraventions Cyber Offences
Deals primarily with unauthorised Deals with computer,
access to computer, computer or comput
system computer networkputer
system or computer network or computer resource related
computer resource serious offences
Offender to face civil prosecution Offender to face
criminal
prosecution
Offender liable to pay damages by Offender punishable with
way of compensation imprisonment term or fine or
with both
There exists a thin line of demarcation between cyber
contravention
and cyber offences. For example, one can observe on a closer reading at
sections 43(a) - (G) and sections 66, 66A-66D of the Act that there exists veryi
difference between the provisions of section 43 and sections 66, 66A-66D ofthe
Act. While the former is about 'cyber contraventions', the latter is about
'cyber
offences'. Surprisingly, whether it is section 43 or sections 66, 66A-66D - they al
refers to unauthorised access, modification, damage, disruption of
computer system or computer network or computer resource.
any compute
Table 12.2: Comparison Between Section 43 and Section 66
Section 43 Section 66
Unauthorised access to a computer, Unauthorised access with dishonest
computer system or computer or fraudulent intent to a computer
network of computer resource computer system or computer
network of computer resource
Essential Ingredient:
Essential Ingredient:
Unauthorised access without Unauthorised access to cause
any criminal intent on the Wrongful loss or wrongful gain;
0r

part of the doer

Unauthorised access with intention

to deceive the

The quasi judicial/judicial authority may have ine

carefully exaent
to
facts and circumstances of each case before
pronouncing their Ju Act

taking cognizance of either section 43 or sections 66, 66A-66D of the

case of a difficulty, it would be prudent to look into the legisla ho
behind the construction of these sections. Similarly, it is importanteifed
cyber contraventions and cyber offences under the Act must be c
accordingly and distinguished from one another for proper understa
application. t l i c e r s w u l e

In this context, it is
important to note that the Adjudicating Of thereby

passing judgments have also been referring to section 66 as well and,

exceeding their subject matter jurisdiction. For example in M/s. Preventroe
 2nces under th Act
161
Dr.
v. Dr.
! v.,
Ltd. Rishi
Dixit,' the Ld.
Adjudicating officer held "the respondents
Pot.
1uilty of data thett,
of data under sectiOn 43(b) ot the IT Act read with sections
66 of the said Act".
and
43(),
43)
Tahle 12.3: Cyber Contraventions and Cyber Offences Under the Act
Cyber Contraventions under the Act
Cyber Offences under the Act
with unauthorised
Deals primarily Deals with computer, computer
access to computer, computer system or
system computer network or
or computer network or
computer resource related
computer resource
serious offences
Sections 43(a) to (j), 43A, 44 45 Sections 65-74
May result in civil prosecution
May result in criminal prosecution
Judicial proceedings before the Judicial proceedings to be held
Adjudicating Officer before the appropriate 'Court as
per the nature of offence, whether
cognizable or non-cognizable
Provision of appeal. Provision of appeal.
Provisions of the Limitation Act, 1963 Period of limitation for taking
apply to an appeal made to the Cyber cognizance of certain offences?
Appellate Tribunal shall be as specified in
Sections 468-473 of the Cr.P.C.
-

Compounding of contraventions Compounding of offences to a

limited extent (Section 77A)
Power to investigate any contravention Power to investigate any offence
lies with the Controller or any officer lies with the police officer not
authorised by him below the rank of Inspector
Offender liable to pay damages by Offender punishable with
way of penalty and compensation imprisonment term or fine or with
to the person so affected. both
As evident from the aforesaid table, the differences between the 'cyber
contraventions' and 'cyber offences' are clear and distinct. A comparative study
0T Section 4 and section 65-74 suggests that the victim has a legal right to initiate
both civil and criminal proceedings against any offender under the Act.
In order to complement the understanding of the cyber offences under the
ACt, it is important that the criminal law of India, which has been codified in
the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 should
De taken into consideration. The Penal Code deals specifically with offences
wh the Criminal Procedure Code is all about criminal procedures. While the

Complaint No. 17 of 2013. Decided on 20-1-2014

2. See [Sections 468-473 of Cr.P.C.].
limitation shall be-
5 468(2) of Cr.P.C., the period of
per section
with fine
dSIX months, if the offence is punishable only term not
for a exceeding one
one year, if the offence is punishable with imprisonment
year;
with imprisonment
for a term exceeding one

Yree years, if the offence is punishable

year but not exceeding three years.
 Law and Practice
Information Technology
-

162
Penal Code is the substantive law, the Criminal Procedure Code is tho
the adjecfive
law.
The object of the Code of Criminal Procedure, 1973 is to provide s
machi
for the punishment of offenders against the substantive criminal law, for
for r y
example
the Indian Penal Code, 1860. The Code of Criminal Procedure also
also
machinery for punishment of offences under other Acts. provides
The First Schedule of the Code of Criminal Procedure, 1973 provides
alia the Classification of Offences (1-Oftences under
the Indian Penal Code ainter
I1-Classification of offences against other laws). The table below sho
Classification of offences against other laws: the
Table 12.4: Classification of Offences Against Other Laws [Cr.P.C.
Offence Cognizable' or Non-
Bailable or By what Court
cognizable2 Non-bailable3 triable
If punishable with
Cognizable Non-bailable Court of Session
death, imprisonment
for life, or
imprisonment for
more than 7 years
If punishable with
imprisonment for
Cognizable Non-bailable Magistrate of the
3 years and first clasSS
upwards but not
more than 7 years
If punishable with
imprisonment for Non-cognizable Bailable Any Magistrate
less than 3
or with fine
years
only
Based on the aforesaid Classification of
given out in the offences against other laws,
Chapter XI of the Act has been tne
as
Act, as
section 77B off the
the table below:cognizable/non-cognizable, bailable /non-bailable
classified subject to
and by what Court e in

Table 12.5: Classification of

Section Offences Under
Offence Information Technolog Act
Cognizable/ Bailable/ By what

Tampering with Non-cognizable |

Section 65 Non-bailable Courttriable?

computer sourceCognizable Bailable Magistrate

documents of the first
1.
Section 2(c) of Cr.P.C. class
means a case in "cognizable offence" means an
any otter law forwhich, a police officer may, offenceifor which, and "cognizableca
Section 2(0 of time being in in
Schedule or
u n d e r

Cr.P.C. force, arrest accordance with the Fi

cognizable case" without warrant.
3.
warrant. "non-cognizable
means a case in
which,
offence" means an offence for which, a "no

a
police officer has no
a r r e s t without

Section 2(a) of
the Cr.P.C. "bailable
First Schedule, authoority
"non-bailable offence" which
or offence"
is made means an
ailablein

means any other bailable by any offence

ce which is shown
as being in for
a n d

offence. other law for tin

 CHAPTER 13
OFFENCE-TAMPERING WITH COMPUTER
OFFE

SOURCE DOCUMENTS
"Jdeas are nobody's property; they belong to whoever
expresses them best".
-Emilio Cecchi, Taccuini
A cOmputer program is a collection of detailed and explicit set of instructions.
can be written in a number of
These
instructi
different languages.
Concept Note

Computer Programming
Programming is a way of sending instructions to the computer. These
instructions are relayed to the
computer by using programming languages'.
These languages are: (a) Machine languages, (6)
Assembly
(0 Higher-level languages. These languages have evolved over languages
time. and,
Table 13.1: Computer
Machine Language
Languages
Assembly Language Higher-level Language
iTst-generation Second generation Third/Fourth/Fifth
anguage
Diticult to understand language
Easier to understand
generation languages
Much easier to
understand
tis a
machine code
onsisting entirely of English-like
abbreviations replacing
Language syntax is
much closer to human
and 1s of the strings of Os and 1s,
number system. creating source files language
ne
a
onlylanguagethat Needs translator
Computer understands programs Needs translator
called assemblers (or programs called
compilers) to translate assemblers (or
urce files (or commands) compilers) to translate
into machine language source files (or
commands) into
machine language

167
 Law and Practice
168
Information Technology-
is a complex process of buildino
The programming thus, olocks o
systems. It steps to create individus? locks,
involves five
information

Analysis, (6) Systems Design, (c) Development,

(d) orograms
(a) Needs
and (e) Maintenance.
lementation
These five steps represent "life cycle" of a program. It all bepine
identification and understanding of a need or a problem of the end
is followed by the design phase to 'articulate' the logical steps in solvin.sers. t
proposed problem using techniques like flow charts, circles and messaoa
and pseudo codes. The next step (development) involves writing the instructiom
to the computer, called source code, as well as testin8 those statements after ther
tions
are written. It is the most time consuming phase ot the entire "ife cycle" as i
they
includes writing code, compiling correcting and rewriting. Once, the program
is tested successfully without 'syntax' and logical' errors, it is installed on the
hardware for use (implementation). The work of the programmer continues as
the installed program may require fixing of new errors (bugs), addition, deletion
or modification of certain functionalities (maintenance).
The computer program whether written in machine language, assembly
language or high-level language is known as the source code. When the soure
code is translated by an assembler or a compiler into machine language, it s
known as object code. Thus, the object code is
represented by strings ot
and ls of the binary number system or hexadecimal notation of the electrical
charges. The object code cannot be seen, touched or heard, but there can be no
doubt that it exists. In cases where the
program is written in machine langua8
only, the program's source code and object code are the same. When comput
programs are exploited commercially, what the end user gets is the object code
The end user either
digitally downloads it from the Internet or physically 10au
it from the
optical storage devices, like CDs, DVDs etc. The end user does
generally have access to the source code and as there are difficulties regar
retranslation, it is notpossible to re-construct the source code from bject
theh-level
unless ou
code a
decompilation program is used to retrieve the original ng
language source code.
Source code represents the proprietary intellect of
Information Technology Act, 2000 protects this
a
programttm
for
of computer code.
source proprietary intellect ue

Section 65. Tampering with computer source d o c u m e n t s-

.Whoever

knowingly or
intentionally conceals, destroys or alters o
or
r intentionally

knowingly causes another to conceal, destroy or alter any compu

o u r c e

code used for uter

a computer,
network, when the computercomputer program, computer system or com aintained

by law for the time being insource code is required to be kept or "aeme
force, shall be with imprison
up to three years, or with fine which
may extend up
punishable rupee

rupees
or

with both. to two laKt *

1. It is also known the

as
'Systems Development Life Cycle' (SDLC).
 with Computer Source Documents 169
Offence-Tampering
planation.-For
the purposes of this section, "computer source code"
of programs, computer commands, design and layout and
e1isting
means t h e
of computer resource in any form.
rogram analysis
nalysis
P r o s
Comment
.ordings of the aforesaid section tend to create the notion of 'property
The
outlining
the necessary ingredients related to the tampering with computer
arce documents. It protects the entire "life cycle" of computer programs, as
hile
note above.
in the concept
outlined
are:
essential ingredients
The
intention to conceal, destroy or alter any source
(a) knowledge or

computer, computer progranm, computer systenm

or
code used for a

computer network;
or conversion to one's own use, or use in
(b) its misappropriation
violation of a legal of any legál contract.
direction or

the meaning of "computer s o u r c e code" quite

The Explanation makes
of programs, computer commands,
Comprehensive as it includes the listing
of computer r e s o u r c e in any form.
design and layout and program analysis
in the Act incorporates the entire
The term "computer s o u r c e code" as defined
includes conmputer commands/programming
gamut of programming process. It flow charts/
(machine, assembly and higher-level), design prototypes,
codes and layout of the necessary hardware,
diagrams, technical documentation, design the Act
it is important to know that
program-testing details etc. Furthermore,
no mention whether the source code
exists in tangible (on paper) or
makes s o u r c e code
(electrical impulses) form. The Act accepts the computer
ntangible of the Explanation,
tangible and intangible form. Importantly, by virtue
Doth the software program's "object
e term "computer source code" also includes
code" as well.
is to protect the 'intellectual property
ne idea behind the aforesaid section an to extend the protection to
e d in the computer p r o e r a m s . It is attempt
source documents (codes) beyond what
is available under Copyright
arer
laws. The aoresaid
aforesa added dimension to
the copyright
section provides an
Violation
lation.
Astfuddin v.
wherein
State of Andhra Pradesh, electronic 32-bit
1Tata Indicom
number
emplove
employees were for manipulation
of the
Reliance
were arrested
ESN) rammed into cell phones that w e r e exclusively
franchised to

Infocomm. The hand:

Was technologica andsets, which w e r e given
to Reliance
only
Infocomm subscribers

work with the

Reliance
locked so that it
would
8ically

Uses of Copyright
New Technological
"eport of the United States Commission on in any of several
Works, 1979, National written
tates Nano program
code is a computer code is the version
'A source An object

Programming
Program
languages
es
emp
ages employed by computer
code language
programmers.
or
is c o n v e r t e d
translated into the
machine

lan the source

2 0 0 g e of th wich it is to be
used.

Cr LJ e computer with which 96.

ALD (CRL)
4314: 2005 CLC 1685: 2006 (1)
 170 Information Technology -Lawand Practice
Infocomm services. However, it came to the light during investigation.
that
supplied handsets could be unlocked
for the Tata Indicom service as well. the
The High Court opined that every handset carries unique set of number
Electronic Serial Number (ESN) and System Identification Code (SID) Te
is a unique 32-bit number programmed into the phone when it is manufach ESN
by the instrument manufacturer, whereas SID, is a unique 5-digit numbert
actured
is assigned to each telecom carrier by the licensor, 1.e., the Government ofIndia
SID is programmed into a phone when one purchases a service plan and has
the phone activated. Accordingly, ESN and SID come within the definition d
"computer source code" under section 65 of the Information Technology Act
Justice V.v.S. Rao held:
"Therefore, prima facie, when the ESN is altered, the offence under
section 65 of I.T. Act is attracted because every service provider like
second respondent has to maintain its own SID code and also gives a
customer specific number to each instrument used to avail the services
provided. The submission that as there is no law which requires a
be made
Computer source code to be maintained, an offence cannot
the
out, is devoid of any merit. The disjunctive word "or" is used by
Legislature between the phrases "when the computer source code 5
for the
required to be kept" and the other phrase "maintained by law
time being in force" and, therefore, both the situations are different".
a
It is an interesting judgment as it not only articulated what constitutes
"computer source code", but also emphasized the fact that a cell phone i5 a
computer!
This section proposes punishment with imprisonment up to three yeat,
With fine, which may extend up to two lakh rupees, or with both. It could
in
argued that the fine amount has been kept so infinitesimally low that it wouu
eless,
ever the victim's economic losses in real terms. Neverte
compensate
no way
the offence under the section has been made cognizable but bailable.