IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 04.04.2014 Coram THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI Crl.R.C.No.1190 of 2012 and M.P.No.1 of 2012 A.Shankar .Petitioner versus The Deputy Superintendent of Police Cyber Crime Cell, Crime Branch CID Guindy, Chennai 600 032.Respondent Prayer:- Criminal Revision filed under Section 397 r/w 401 Cr.P.C.to call for the records pertaining to the impugned order dated 17.8.2012 made in Crl.M.P.No.157/2012 in SC.No.192/2009 passed by the XV Additional Sessions Judge in-charge of XIX Additional Sessions Judge, Chennai-1 and to quash the same.
For Petitioner : Mr.P.Vijendran For Respondent : Mr.C.Iyyapparaj, GA(Crl.Side) ORDER
This criminal revision is filed against the order made in Crl.MP.157/2012 in SC.No.192/2009, in and under which, the petition filed by the petitioner/accused for altering the charges framed by the respondent in accordance with the provisions of the Information Technology Act, 2008 was dismissed.
2.Few facts, which are relevant for consideration herein are as follows: On 14.4.2008, the English daily Deccan Chronicle published the transcripts of the conversation between the former Director of Vigilance and Anti corruption by name S.K.Upadhyay IPS and the former Chief Secretary to Government of Tamil Nadu L.K.Tripathy IAS.
The audio conversation was relayed on the same day night.
Following the same, the Tamil Nadu Government constituted a Commission of Inquiry headed by the retired Judge Justice P.Shanmugam, who after investigation, submitted his report recommending criminal and departmental action against the petitioner herein, who was then serving as Special Assistant of Confidential Section in DVAC office, Chennai and departmental action against then S.K.Upadhyay IPS and Vijayarajan, Legal Adviser, S.Prabakaran, Sub Inspector of Police and Hariharasudhan, Police Constable.
The commission also recommended criminal action against four journalists.
However, the Government of Tamil Nadu decided to ignore the recommendations against the journalists and to accept the remaining recommendations.
Accordingly, complaint was lodged by then Home Secretary S.Malathi IAS to Crime Branch CID, who on the basis of the complaint, registered the case in Crime No.2/2008 under Section 5 of the Official Secrets Act and Sections 43 and 66 of the Information Technology Act and sections 378, 463, 470 and 505 IPC.
3.The complaint was investigated into and CBCID personnel, after completion of investigation, filed charge sheet against the accused for the offences under sections 66, 70 and 72 of the Information Technology Act, 2000 (hereinafter shortly referred to as old Act) on 12.11.2008.
Simultaneously, departmental disciplinary proceedings was initiated and the same was subsequently stayed on the writ jurisdiction at the instance of the petitioner herein.
The petitioner was, in the mean while dismissed from service contrary to the order of the High court in W.A.No.32 of 2010 dated 8.11.2010 and the dismissal order was subsequently withdrawn, due to filing of Contempt Petition No.326 of 2011 by the petitioner.
The Division Bench of this court held that the dismissal of the petitioner from service was wholly illegal and without jurisdiction.
The department also preferred review against the said order and the review was dismissed.
While doing so, our High court ordered conduct of trial in the criminal case at the earliest possible time preferably on day today basis.
In pursuance of the same, the trial is conducted.
In the midst of trial, the petitioner preferred the petition under section 216 Cr.P.C to amend the charges, which was by the impugned order, dismissed by the trial court.
Hence, this criminal revision came to be filed by the petitioner before this court.
4.Heard the rival submissions made on both sides.
5.The reading of the petition in Crl.MP.No.157/2012 arising out of which is the present criminal revision is one for altering the charges, based on the relevant provisions of the Amended Information Technology Act, 2008.
The charges are no doubt framed under sections 66, 70 and 72 of the Information Technology Act 2000.
Originally, the charges framed against the petitioner are as follows: (i)That on 1.4.2008 and 2.4.2008 at the room of Legal Advisor's of Directorate of Vigilance and Anti Corruption (V&AC).Chennai located in the ground floor of the Newly Constructed Building-21 (NCB-21) P.S.Kumarasamy Raja Salai, Raja Annamalaipuram, Chennai-28 in which the office of the Director, V&AC is located in the fiRs.floor, the petitioner/accused being a Special Assistant of Confidential Section in DVAC office, Chennai functioning at NCB-23 building, with intent to cause damage to the office of the DVAC, which has not considered his appointment to the Secretariat as Assistant Section Officer (ASO) without the permission of the owner of the computer i.e., witness Tr.N.Vijayarajan, Legal Advisor, unauthorisedly accessed into the computer of Legal Advisor through his pen drive named as SUJATHA and accessed the folder Director's back up 2 which was for the exclusive use of Tr.S.K.Upadhyay, Director Vigilance and Anti -corruption and illegally downloaded the audio file CS209.2007, hence the accused have committed an offence under section 66 of the Information Technology Act.
(ii)the petitioner/accused by downloading the audio conversation CS209.2007 between Tr.S.K.Upadhyay IPS and Chief Secretary kept for the exclusive use of S.K.Upadhyay, IPC, Director, Vigilance and Anti-Corruption dishonestly from the computer have committed an offence under Section 70 of the Information Technology act.
(iii)the petitioner/accused by being instrumental for the publication of the conversation between Tr.S.K.Upadhyay IPS and Chief Secretary in the Deccan Chronicle on 14.4.2008 and for telecast of the same on 14.4.2008 at 8 pm and 10 pm in Makkal TV and Jaya TV and diminished the value of information, utility and affected it injuriously and thus have committed an offence under section 72 of the Information Technology Act.
6.The petitioner sought for the alteration of the charges on the following grounds: (i)regarding the fiRs.charge under section 66 of the old Act, the same relates to the act of Hacking.
Section 66 of the old Act defines Hacking with computer system, which reads as follows: (1)Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking.
(2)Whoever commits hacking shall be punished with imprisonment up to three years or with fine, which may extend upto two lakh rupees or with both.
The Information Technology Act 2000 has been amended by the Parliament with effect from 27.10.2009 by way of the Information Technology (Amendment) Act, 2008, in and under which, the word ''hacking'' has been removed in the amended Act, 2008 and Section 66 has been replaced as follows: 66.Computer related offences: If any person, dishonestly or fraudulently, does any act referred to in Section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine, which may extend to five lakh rupees or with both.
Explanation: For the purposes of this section - (a)the word dishonestly shall have the meaning assigned to it in section 24 of the Indian Penal Code (45 of 1860).(b)the word fraudulently shall have the meaning assigned to it in section 25 of the Indian Penal Code (45 of 1860). It is sought to be argued on the side of the petitioner that under the Amended Act, the word hacking has been removed and unauthorised access into the computer system amounts to an offence under the New Act only if the act was done dishonestly and fraudulently.
Whereas, dishonest and fraudulent intention are absent in the present case, as such, unless and otherwise the charge is altered, the proceedings initiated under the Old Act cannot be allowed to go on.
7.Insofar as the second charge under section 70 of the Old Act is concerned, Section 70 deals with protected system, which is under the old Act and Amended act, as follows: (1)The appropriate Government may, by notification in the Official Gazette, declare any computer resource which directly or indirectly affects the facility of Critical Information Infrastructure, to be a protected system.
Explanation- For the purposes of this section, Critical Information Infrastructure means the computer resource, the incapacitation or destruction of which, shall have debilitating impact on national security, economy, public health or safety.) (2)The appropriate Government may, by order in writing, authorise the persons who are authorised to access protected systems notified under sub section (1).(3)Any person who secures access or attempts to secure access to a protected system in contravention of the provisions of this section shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Under Amended Act 2008, in addition to above three clauses of section 70 of the Old Act, clause (4) has been added, which is extracted hereunder: 4.The Central Government shall prescribe the information security practices and procedures for such protected system. It is argued by the learned counsel for the petitioner that under the New Act, 2008 the computer of Legal Adviser in the Directorate of Vigilance and Anti Corruption from which the petitioner was alleged to have accessed information, could not be termed as a computer possessing, Critical Information Infrastructure, the incapacitation or destruction of which shall have debilitating impact on national security, economy, public health or safety, as such, in the absence of one such infrastructure, the same warrants alteration of charge, as per the New Act.
8.Regarding third charge under section 72, it is submitted by the learned counsel for the petitioner that as per the evidence of PW42/K.Natarajan, former Director of Vigilance and Anti Corruption, no sanction was obtained to prosecute the petitioner under Section 72 of the Act.
In the absence of due sanction, the court has no jurisdiction to prosecute the accused for the above stated offence.
9.It is also sought to be argued on the side of the petitioner herein that though the unauthorised act in respect of which charges are framed, are relating to the period during which the old Act was in force, the charges are framed only after New Act came into force i.e.on 12.11.2008, as such, the charge ought to have been framed under New Act to enable the petitioner to get the benefit of the amendment.
The learned counsel for the petitioner has also relied on the following authorities in support of his contention that pending proceedings will be governed by the Amended Act, as the amendment effects implied repeal of the State Amendment Act and operates retrospectively:(i)(1983) 1 SCC177(T.Barai v.
Henry Ah Hoe and another) (ii) (1999) 9 SCC312(State through CBI, Delhi v.
Gian Singh) (iii)(2000) 2 SCC536(Kolhapur Canesugar Works Ltd and another v.
Union of India and otheRs.(iv)(2006) 6 SCC289(Vijay v.
State of Maharashtra and otheRs.(v)CDJ2008SC1750(the Superintendent, Narcotic Control Bureau v.
Parash Singh) and (vi)Indian Kanoon-http://indiankanoon.org/doc/762707/ (the Government of Tamil Nadu rep.
by its Chief Secretary v.
Union of India and otheRs.(Division Bench of our High Court).10.The relief sought for herein is seriously opposed by the prosecution by relying on the decision of the larger Bench of the Supreme Court, consisting of three judges reported in (2002) 9 SCC639(Jagan M.Seshadri v.
State of TN) and the judgment of this court in 1992 (2) MWN (Crl.) Madras (State rep.
by Deputy Superintendent of Police, CBCID, Madras v.
S.Thirunavukarasu).11.The trial court dismissed the petition mainly on the ground that the Information Technology Act is prospective in nature and not retrospective and there is no ground made out, from the evidence and other materials adduced on the side of the petitioner for altering the charges and as the act constituting the offences punishable under Sections 66, 70 and 72 of IT Act 2000 are arising out of the single incident of publication of transcript of audio conversation in electronic media, the sanction obtained for one offence is sufficient for other offences and the charges can be framed only on the basis of the Act in force on the date of the alleged occurrence.
While doing so, the trial court has given liberty to the petitioner to raise his objection at appropriate stage, after completion of the evidence.
This court is inclined to accept the grounds on which the impugned order came to be passed by the trial court.
12.Though in all the judgments cited on the side of the petitioner, the Hon'ble Apex court and our High court were of the view that pending proceedings will be governed under the amended Act, the same do not relate to alteration of charges.
Whereas, our High court in para 16 of the judgment cited on the respondent's side clearly observed that launching of prosecution under the Old Act is legally permissible even subsequent to its repeal, as respects offences which were committed during the period when the Old Act was in force and no matter when prosecution was launched as there was no period of limitation prescribed therefor.
13.The Hon'ble Supreme Court in (2002) 9 SCC case cited on the respondent's side, under identical circumstances held that the accused should have been charged under old Act.
In that case, the appellant/individual was a Superintendent of Police and FIR was lodged by the department against the appellant on 18.6.1986 alleging commission of an offence under Section 5(1)(d) and (e) r/w 5(2) of the Prevention of Corruption Act, 1947 by acquiring assets disproportionate to his known source of income during the period 1977-84.
On appreciation of evidence, the trial court acquitted him.
However, allowing the State's appeal, the High Court held that since charge was framed after 9.9.1988, though with regard to offence allegedly committed by the appellant during the check period 1977-84, the appellant should have been deemed to be charged under Section 13(1)(e) r/w 13(2) of the 1988 Act and not under Section 5(1)(e) of the 1947 Act.
Aggrieved against the same, the appellant /individual approached the Apex Court.
The Apex Court allowed the appeal by rejecting the contention raised before the High court.
It is held therein that the application of Section 13 of the 1988 Act to the fact situation of the present case would offend Section 6(b) and (e) of the General Clauses Act, which inter alia provides that repeal shall not (i)affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder or (ii)affect any investigation, legal proceedings or remedy in respect of any such rights, privilege, obligation, penalty, forfeiture or punishment.
Section 13, both in the matter of punishment as also by the addition of the Explanation to Section 13(1)(e) is materially different from Section 5 of the 1947 Act.
The reading of para 8 of the decision of the Apex Court would reveal that the learned senior counsel representing the State therein fairly conceded that such view of the High Court that charge should have been framed under Section 13(1)(e) read with Section 13(2) of the 1988 Act was incorrect.
14.In my considered view, the present case is squarely covered under the legal principles as stated above.
In the event of the charges being amended under the new Act, the same is hit by section 6 of General Clauses Act.
Further, the petitioner has already moved this Court for quashing the charge no.2 on more or less similar ground and the same was dismissed on the ground that the trial is in advanced stage and the same is also to be taken note of.
As a matter of fact, the trial court has dismissed the petition by giving liberty to the petitioner to raise all these objections at appropriate stage.
Hence, this Court finds no error or infirmity in the order so passed by the trial court, warranting interference by this court.
15.In the result, the criminal revision stands dismissed.
Consequently, connected Miscellaneous Petition is also dismissed.
rk 04.04.2014 Index:Yes/No Internet:Yes/No K.B.K.VASUKI, J.
rk To 1.The Deputy Superintendent of Police Cyber Crime Cell, Crime Branch CID Guindy, Chennai 600 032.
2.The XV Additional Sessions Judge in-charge of XIX Additional Sessions Judge, Chennai-1.
3.The Public Prosecutor, High court, Madras-104.
Crl.R.C.No.1190 of 2012 04.04.2014