CYBER CRIMES and INDIAN PENAL CODE

CYBER CRIMES and INDIAN PENAL CODE—

By Swanand Pandit,- email – swanand.pandit@gmail.com (all rights reserved) Feb 19,2023

The term “cyber-crimes” may not be explicitly defined in every statute or rulebook, however, many international organizations have established legal definitions and frameworks for cybercrime. These definitions typically include offenses that involve use of computer systems, networks, or other technological devices, gadgets used to steal, forge, and impersonate information by the means of hacking, phishing, identity theft, malware distribution, and denial-of-service attacks. (DOS)

Therefore, while the term “cyber-crimes” may be colloquial and not specifically defined in every jurisdiction, there are established legal definitions and frameworks for such offenses.

The cyber-crimes in India are penalized by the Indian Penal Code (IPC) and the Information Technology Act (IT Act). This is because both laws seek to address criminal activity that takes place in the digital realm, and many of the crimes they penalize involve the same or similar conduct.

Both the IPC and the IT Act penalize offenses such as hacking, phishing, and identity theft, which involve the unauthorized access to computer systems or the theft of sensitive information.

The IT Act was enacted in 2000 to address the growing threat of cyber-crime and to provide a legal framework for prosecuting offenses related to computers and digital communication. The law specifically defines offenses such as hacking, damage to computer systems, and the dissemination of viruses or malware, among others.

However, in some cases, the IT Act penalizes certain types of conduct more specifically than the IPC, while in other cases, the IPC may be used to prosecute cyber-crimes that are not specifically covered by the IT Act.

CYBER LAW WHICH ACT PARELLEL WITH IPC

Sections 43 and 66 of the Information Technology Act, 2000 (IT Act) mention a range of computer-related offenses, including hacking, data theft, spreading viruses, damaging computer networks, disrupting computer systems, denying access to authorized users, and destroying information residing in a computer.

The section 43 of the IT Act covers penalties for damage to computer systems and data theft. Under this section, the damage to a computer system, network, or data can be punished with imprisonment of up to three years or fine or both. The section also covers unauthorized access to a computer system or network, and the punishment for such offenses is imprisonment of up to two years or fine or both.

Section 66 of the IT Act addresses cyber-crimes such as hacking, spreading viruses, and disrupting computer systems. Under this section, a person who commits these offenses can be punished with imprisonment of up to three years, or fine or both.

 Section 378 of the Indian Penal Code (IPC) relates to theft of movable property, and the term “movable property” under the IPC includes all types of corporeal property, except for land and things attached to the earth or permanently fastened to anything which is attached to the earth. Theft of data, whether online or otherwise, can be considered as theft of movable property if the data can be deemed as “property” and is capable of being moved or transferred from one place to another.

The maximum punishment for theft under section 378 of the IPC is imprisonment for up to 3 years, or a fine, or both.

It is important to note that other provisions of the IPC, such as sections 379 (punishment for theft), 381 (theft by clerk or servant), and 408 (criminal breach of trust by clerk or servant), may also be applicable depending on the specific circumstances of the theft of data or other property.

Section 424 of the Indian Penal Code (IPC) relates to dishonest or fraudulent concealment or removal of property, including property of oneself or another person. The section applies to both movable and immovable property, and the term “property” is defined widely under the IPC to include any valuable security, debt, and other valuable things.

Since data can be considered a form of property and may have sensitive information, section 424 of the IPC may also apply to data theft. If a person dishonestly or fraudulently conceals or removes any data belonging to oneself or another person or assists in such concealment or removal, they may be punishable under this section.

The maximum punishment for an offense under section 424 of the IPC is imprisonment for up to 2 years, a fine, or both. It is worth noting that the Indian legal system recognizes the importance of protecting data and information in the modern digital age. Therefore, there are other laws and regulations that provide for specific offenses related to data theft, such as the Information Technology (IT) Act, 2000, and the Indian Copyright Act, 1957.

The section 66B of the Information Technology (IT) Act and Section 411 of the Indian Penal Code (IPC) cover the receipt of stolen property, including computer resources and communication devices.

Section 66B of the IT Act deals specifically with the dishonest receipt of stolen computer resources or communication devices. This section requires that the person receiving the stolen property ought to have done so dishonestly or should have reason to believe that it was stolen property. The punishment for this offense under Section 66B of the IT Act is imprisonment of up to 3 years or a fine or both.

Section 411 of the IPC also deals with the dishonest receipt of stolen property, but it is not limited to computer resources or communication devices. The section applies to all types of stolen property, and the offense requires that the person receiving the stolen property should have done so dishonestly or should have reason to believe that it was stolen property.

Section 66C of the Information Technology (IT) Act deals with identity theft and provides for punishment for fraudulently or dishonestly using the electronic signature, password, or any other unique identification feature of another person.

The section defines the offense of identity theft as the fraudulent or dishonest use of the electronic signature, password, or any other unique identification feature of any other person. The punishment for this offense under Section 66C of the IT Act is imprisonment of either description for a term which may extend to 3 years and a fine or both.

In addition to Section 66C of the IT Act, cheating by personation is also an offense under the Indian Penal Code (IPC). Section 416 of the IPC provides for punishment for cheating by personation, which includes pretending to be someone else or assuming a false identity to deceive another person. The maximum punishment under this section is imprisonment of up to 3 years or a fine, or both.

The section 66D of the Information Technology (IT) Act deals with cheating by personation by using a computer resource.

The section defines the offense of cheating by personation as any person who, by means of any communication device or computer resource, cheats by personation. Cheating by personation refers to pretending to be someone else or assuming a false identity to deceive another person using a computer resource.

The punishment for this offense under Section 66D of the IT Act is imprisonment of either description for a term which may extend to 3 years and a fine or both.

In addition to Section 66D of the IT Act, cheating by personation is also an offense under the Indian Penal Code (IPC). Section 416 of the IPC provides for punishment for cheating by personation, which includes pretending to be someone else or assuming a false identity to deceive another person. The maximum punishment under this section is imprisonment of up to 3 years or a fine, or both.

Section 463 of the IPC defines forgery as making a false document or electronic record with the intention of causing damage or injury to the public or any person.

Section 465 of the IPC deals with punishment for forgery and provides for imprisonment for up to two years, or a fine, or both.

Section 468 of the IPC prescribes punishment for forgery for the purpose of cheating and provides for imprisonment for up to seven years, or a fine, or both. The section also applies to cases where a forged document is used as genuine, or where a genuine document is tampered with to commit fraud.

In cases of identity theft, the perpetrator may use forged or tampered documents to obtain access to financial resources, commit fraud, or other criminal activities. In such cases, the provisions of the IPC can be applied to prosecute the offender for forgery and cheating.

Section 420 of the Indian Penal Code (IPC) deals with the offense of cheating and provides that any person who cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security shall be punished with imprisonment of either description for a term which may extend to 7 (seven) years, and shall also be liable to fine.

The section defines cheating as the fraudulent or dishonest inducement of a person to deliver any property or to do or to omit to do anything which that person is legally entitled to do or omit to do. In cases of identity theft, the perpetrator may cheat the victim by inducing them to disclose sensitive information, such as personal or financial details, and then using this information to commit fraud or other criminal activities.

Obscenity is a criminal offense in India and is regulated by various laws, including the Information Technology (IT) Act, 2000. Sections 67, 67A, and 67B of the IT Act prescribe punishment for the publication or transmission of obscene material, material containing sexually explicit acts, and material depicting children in sexually explicit acts, respectively.

Section 67 of the IT Act provides for imprisonment and a fine for publishing or transmitting obscene material in electronic form. The punishment for the first conviction is imprisonment for a term that may extend to three years, along with a fine or both. For second or subsequent convictions, the punishment is imprisonment for a term that may extend to five years, along with a fine that may extend to Rs. 10l acs.

Section 67A of the IT Act provides for imprisonment and a fine for publishing or transmitting material containing sexually explicit acts in electronic form. The punishment for the first conviction is imprisonment for a term that may extend to five years, along with a fine and the second or subsequent convictions, the punishment is imprisonment for a term that may extend to seven years, along with a fine that may extend to Rs. 10 lacs.

Section 67B of the IT Act provides for imprisonment and a fine for publishing or transmitting material depicting children in sexually explicit acts in electronic form. The punishment for the first conviction is imprisonment for a term that may extend to five years, along with a fine and the second or subsequent convictions, the punishment is imprisonment for a term that may extend to seven years, along with a fine that may extend to Rs.10 lacs.

If glanced with the IPC the provisions of sections 292 and 294 would also be applicable for offenses of the nature described under sections 67, 67A, and 67B of the IT Act.

Section 292 of the IPC provides for punishment for selling, distributing, publicly exhibiting, or possessing any obscene material, including books, pamphlets, papers, drawings, paintings, representations, figures, or any other obscene object. The punishment for a first conviction is imprisonment of either description for a term which may extend to two years, along with a fine.

Section 294 of the IPC provides for punishment for obscene acts and songs in public places. The punishment for the first conviction is imprisonment of either description for a term which may extend to three months, or with fine, or with both. For second or subsequent convictions, the punishment is imprisonment of either description for a term which may extend to six months, or with fine, or with both. Therefore, it is important to note that not only publishing or transmitting obscene material in electronic form is an offense under the IT Act, but possessing or selling any obscene material, including books, drawings, or paintings, is also an offense under the IPC

SECTIONS OF THE CYBER CRIMES NOT COVERED IN IPC

Section 43(h) of the IT Act deals with unauthorized access to computer systems, and it provides that any person who causes damage to a computer, computer system, or computer network by introducing a virus or other contaminants would be liable to pay damages by way of compensation to the person so affected. In addition, section 66 of the IT Act provides that any person who causes unauthorized access to a computer or computer network would be liable to be punished with imprisonment for a term which may extend to three years, or with a fine or both

In the case mentioned, where a person tampers with the computer system of an electricity supplier and causes their neighbor to pay for their electricity consumption, this would fall under the purview of section 43(h) of the IT Act. The act of charging services to the account of another person by tampering with or manipulating a computer system is an offense under this section, for which there is no equivalent provision in the IPC.

It is important to note that with the increasing use of technology and electronic transactions, it is necessary to have provisions in place to prevent and punish cyber crimes. The IT Act provides for such provisions, and it is essential to be aware of them to ensure that one’s actions are in compliance with the law.

Section 65 of the IT Act deals with tampering with computer source documents, which includes computer source code, listings of programs, and other computer resource information. The section provides that any person who knowingly or intentionally conceals, destroys, or alters such computer source code, which is required to be kept or maintained by law, shall be punishable with imprisonment for up to 3 (three) years or with a fine which may extend to Rs. 3,00,000 (Rupees three lakhs) or with both.

It is important to note that computer source code is critical for the functioning of computer systems and networks, and tampering with it can have severe consequences. Section 65 of the IT Act aims to prevent such tampering and provides for punishment for those who do so. The provision serves as a deterrent for individuals who may attempt to tamper with computer source code, thereby helping to maintain the integrity of computer systems and networks.

Section 66E of the IT Act deals with the violation of privacy and provides for punishment for intentionally or knowingly capturing, publishing or transmitting the image of a private area of any person without his or her consent under circumstances violating their privacy. The term “private area” is defined as the naked or undergarment-clad genitals, pubic area, buttocks or female breast.

The provision aims to protect the privacy of individuals and prevent the misuse of technology to capture and publish images without their consent. Such acts can be extremely invasive and can have serious consequences for the victim, including embarrassment, social stigma, and even harm to their reputation.

Section 66E of the IT Act provides for punishment for those who engage in such activities, including imprisonment for up to 3 (three) years or with a fine not exceeding Rs. 2,00,000 (Rupees two lakhs) or with both. The provision serves as a deterrent for individuals who may attempt to violate the privacy of others through the misuse of technology.

Section 67C of the IT Act imposes an obligation on intermediaries to preserve and retain certain information as specified by the Central Government for a specific duration, in a particular manner and format. If an intermediary fails to comply with this requirement intentionally or knowingly, they can be punished with imprisonment for a term which may extend to 3 years and also be liable to a fine. It is important for intermediaries to adhere to these provisions to ensure the safety and security of electronic data and prevent the misuse of personal information.

Section 66F of the Information Technology Act in India defines cyber terrorism as an offense and prescribes punishment for the same. The section outlines several actions that can be considered cyber terrorism, such as denying access to an authorized person to a computer resource, attempting to penetrate or access a computer resource without authorization or exceeding authorized access, introducing a computer contaminant, and causing or likely to cause harm to individuals or property or disrupting essential supplies or services that affect the community or critical information infrastructure. The act specifies that anyone found guilty of cyber terrorism is liable to imprisonment for life.

STALKING-

The legislature has recognized the seriousness of the offence of stalking and has made it punishable under section 354D of the Indian Penal Code (IPC). This section covers stalking with or without a cyber-component. If a man repeatedly follows a woman, contacts her, or attempts to contact her to initiate personal interaction, despite a clear indication of disinterest from the woman, it is considered stalking. Similarly, monitoring a woman’s use of electronic communication, such as the internet or email, can also amount to stalking. The law provides certain exemptions and defenses for this offense, regardless of whether it is cyberstalking or not. The punishment for stalking under section 354D of the IPC is the same, irrespective of whether the stalking has a “cyber” component or not.

SUMMARY–

Cybercrime in India is punishable under both the Information Technology Act (IT Act) and the Indian Penal Code (IPC). The IT Act deals specifically with cybercrime and provides for punishment for various offenses related to computer systems, networks, and data. The IPC, on the other hand, provides for general criminal offenses that can be applied to both offline and online activities.

As cybercrime can take many forms, it is essential to consider all the relevant provisions under both the IT Act and the IPC to ensure that the accused is punished as per the law. Cybercrime cases often require specialized knowledge and expertise in cybercrime law and criminology to effectively investigate and prosecute.

Hence, it is advisable to consult an expert lawyer who has knowledge and experience in cybercrime cases to ensure that the legal proceedings are conducted appropriately, and the accused is punished in accordance with the law.