Hacking Data Theft Attract Offences Under IPC Also, Not Just Information Technology Act

KEY TAKEAWAYS

• The advancement of information technology has created new legal issues. These issues emerge in a variety of traditional legal areas, including criminal law, intellectual property law, contract law, and tort law.

• In this current era of information technology, data is a precious asset (IT). Data is a crucial raw resource for call centers and IT firms. Data has also become a valuable tool and weapon for corporations looking to expand their market share.

• In the case of Avtar Singh vs. the State of Punjab, the Hon'ble Supreme Court (AIR 1965 SC 666). was asked if energy could be stolen. In response to the question, the Supreme Court ruled that because electricity is not a moveable item, it is not included under Section 378 IPC's definition of "theft."

However, because Section 39 of the Electricity Act made Section 378 of the IPC applicable to electricity, it became expressly encompassed in the definition of Theft.
As a result, it is critical that a provision similar to that found in the Electricity Act be included in the IT Act of 2000, extending the applicability of section 378 IPC to data theft in particular.

• In the case of Gagan Harsh Sharma v. The State of Maharashtra certain persons were accused of stealing data and software from their employer and prosecuted under Sections 408 and 420 of the IPC as well as Sections 43, 65, and 66 of the IT Act
Non-bailable offenses under Sections 408 and 420 of the IPC can only be compounded with the agreement of the court... Compoundable and bailable offenses are those under Sections 43, 65, and 66 of the IT Act. As a result, the petitioners requested that the IPC accusations against them be withdrawn and that the IT Act accusations against them be examined and pursued.
It was further contended that, if the Supreme Court's decision in Sharat Babu Digumarti was followed, the petitioners could only be tried under the IT Act, not the IPC, for crimes stemming from the same activities. The Bombay High Court supported the petitioners' arguments and ordered that the IPC charges against them be dismissed.”.

Overview

The most serious problem with data theft is its international nature; for example, systems might be accessed in the United States, data modified in China, and the consequences felt in India. Different sovereignties, jurisdictions, laws, and regulations will come into play as a result of this capacity, which is an issue in and of itself.

Furthermore, gathering evidence becomes a problem since investigating three separate nations, all of whom may not speak the same language, is nearly difficult, and our policemen' lack of technical know-how adds to the problems.

Data, in its ethereal nature, can be compared to electricity at best.

There is a lack of collaboration among different investigative agencies, as well as a shaky extradition procedure.

The most serious of all of these concerns is the lack of special laws in the country dealing with this crime; as a result, even if the perpetrator is apprehended, he may simply get away by exploiting any of our laws' multiple loopholes.

What does term ‘Cyber Crime’ mean

The term "cyber" refers to something having to do with computing, information technologies, the internet, or virtual reality. As a result, "cyber-crimes" are described as offences involving computers, information technology, the internet, and virtual reality.

Cyber-crime rules can be found in a variety of codes and even legislation drafted by different regulators The Indian Penal Code, 1860 ("IPC") and the Information Technology Act, 2000 ("IT Act") also penalise a variety of cyber-crimes, and interestingly, certain provisions of the IPC and the IT Act overlap.

In the IPC and the IT Act, there are parallel provisions

Many of the cyber-crimes that are punishable under the IPC and the IT Act have similar ingredients and even nomenclature. Listed below are a few examples:

1. Hacking and Data Theft:

• The IT Act's Sections 43 and 66 make it illegal to hack into a computer network, steal data, introduce and spread viruses through computer networks, damage computers, computer networks, or software programs, disrupt any computer, computer system, or computer network, and deny an authorised person access to a computer or computer network. The maximum penalty for the above offences is 3 (three) years in jail or a fine of Rs. 5,00,000 (Rupees five lac), or both.
• Since section 22 of the IPC specifies that the terms "movable property" are meant to cover corporeal property of any kind, excluding land and objects attached to the earth or permanently fastened to something attached to the earth, section 378 of the IPC, which deals with "theft" of movable property, would refer to the theft of any records, online or otherwise. The statutory penalty for robbery under section 378 of the IPC is three years in jail or a fine, or both.
• It may be argued that the term "corporeal," which means "actual" or "content," excludes digital assets from the scope of the IPC's section 378. The counter-argument is that the drafters wanted to protect all types of property, except land and things permanently fastened to everything fixed to the earth.
• "Whoever deceitfully or illegitimately conceals or extracts any property of himself or any other individual, or assists in the concealment or removal thereof, or dishonestly releases any demand or claim to which he is entitled, shall be punished with imprisonment of any description1 for a term which may extend to 2 (two) years, or with fine," according to Section 424 of the IPC. This clause would also be applicable to data fraud. Section 424 has a potential penalty of up to 2 (two) years in jail, a fine, or both.
• "Whoever, with intent to cause, or believing that he is likely to cause, unjust harm or injury to the public or to any individual, causes the destruction of any property, or any other alteration in any property or in the circumstance thereof, as destroys or diminishes its value or use, or affects it injuriously, commits mischief," according to Section 425 of the IPC. Damage to computer networks, as well as refusing access to a computer device, would come under the above section 425 of the IPC. The maximum penalty for mischief under section 426 of the IPC is 3 (three) months in jail, a fine, or both.

2. Receiving stolen property:

• Under Section 66B of the IT Act, dishonestly receiving any stolen computer device or communication system is punishable. The person possessing the stolen property may have done so dishonestly or have cause to suspect it was stolen property, according to this clause. Under Section 66B of the IT Act, this crime is punishable by imprisonment for up to 3 (three) years or a fine of up to Rs. 1,00,000 (Rupees one lac), or both.
• Section 411 of the IPC, which is almost equivalent to section 66B of the IT Act, also prescribes penalties for dishonestly obtaining stolen goods. The penalty under section 411 of the IPC is either incarceration of some kind for a period of up to 3 (three) years, or a fine, or both. Please note that the only distinction between the recommended penalties is that the IPC does not have a maximum fine limit.

3. Identity theft and cheating by personation-

• It is punishable under Section 66C of the IT Act, which states that anyone who dishonestly or deceitfully makes use of another person's electronic signature, password, or other unique identification feature shall be punished with imprisonment of any description for a term that may extend to 3 (three) years, and shall also be fined (Rupees one lac).
• Section 66D of the IT Act defines "cheating by personation by using computer resource" as any person who cheats by personation by means of any communication system or computer resource, shall be sentenced by imprisonment for a period of up to 3 (three) years and a fine of Rs. 1,000,000.
• Section 419 of the IPC further establishes a penalty for 'cheating by personation,' stating that someone who cheats by personation will be prosecuted with either imprisonment of either description for a period up to 3 (three) years, a fine, or both. A individual is said to be guilty of 'cheating by personation' if he or she cheats by claiming to be someone else, or by deliberately substituting one person for another, or by posing himself or herself as someone other than who he or she is.
• Forgery for the purpose of cheating is punishable under Section 468 of the IPC, which stipulates a punishment of imprisonment of any description for a period up to 7 (seven) years and a fine. The creation of a false document or part thereof with the intent to cause harm or injury to the public or to any individual, or to justify any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with the intent to commit fraud or that fraud may be committed, is classified as forgery in section 463 of the IPC.
• The only difference between the penalties prescribed under sections 66C and 66D of the IT Act and section 419 of the IPC is that the IPC does not have an overall fine limit. The penalty under section 468, on the other hand, is much harsher, with a maximum sentence of 7 (seven) years in jail. Furthermore, although the IT Act allows for both a fine and incarceration, the IPC uses the term 'or' to indicate that the crime will be punishable with either imprisonment or a fine.

4. Obscenity:

• Sections 67, 67A, and 67B of the IT Act, respectively, prescribe penalties for posting or distributing indecent content, material including sexually explicit acts, and material involving children in sexually explicit acts in electronic form.On the first conviction for an offence under section 67 of the IT Act, the punishment is imprisonment of either description for a term of up to 3 (three) years, to be followed by a fine of up to Rs. 5,00,000 (Rupees five lac), and on the second or subsequent convictions, imprisonment of either description for a term of up to 5 (five) years, to be followed by a fine of up to Rs. 5,00,000 (Rupees five lac) (Rupees ten lac).On first conviction for an offence under sections 67A and 67B of the IT Act, the punishment is imprisonment of either description for a term that may extend to 5 (five) years, to be accompanied by a fine of up to Rs. 10,00,000 (Rupees ten lac), and on second or subsequent conviction, imprisonment of either description for a term that may extend to 7 (seven) years (Rupees ten lac).
• Sections 292 and 294 of the IPC will also apply to offences of the kind defined in sections 67, 67A, and 67B of the IT Act. Section 292 of the IPC provides, Any person who, among other things, sells, distributes, publicly exhibits, or in any other way puts into circulation or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure, or any other obscene object whatsoever is punishable on a first conviction with imprisonment of either description for a term that may extend to two years (Rupees five thousand), in the case of a second or subsequent occurrence, with imprisonment of any description for a period up to 5 (five) years, to be followed by a fine of up to Rs. 5,000. (Rupees five thousand).
• Section 294 of the IPC states that anyone who does any obscene act in a public place, or sings, narrates, or utters any obscene poem, ballad, or words in or near a public area, to the detriment of others, shall be punished with imprisonment of any description for a period that may stretch to 3 (three) months, or with fine, or both.

CONCLUSION

The overlap between the IPC and the IT Act will also result in an odd scenario where certain offences are bailable under the IPC but not the IT Act, and vice versa, and certain offences are compoundable under the IPC but not the IT Act, and vice versa. For example, in the case of hacking and data stealing, offences under sections 43 and 66 of the IT Act are both bailable and compoundable, while offences under section 378 of the IPC are neither bailable nor compoundable. Furthermore, the offence of receiving stolen property under section 66B of the IT Act is bailable, while the offence of receiving stolen property under section 411 of the IPC is not. Likewise, in the case of identity fraud and deception by personation, the crimes under sections 66C and 66D of the IT Act are compoundable and bailable, whereas the offences under sections 463, 465, and 468 of the IPC are non-compoundable and non-bailable. Eventually, the offences under sections 67, 67A, and 67B of the IT Act are non-bailable, whereas the offences under sections 292 and 294 of the IPC are. The Bombay High Court addressed this issue in Gagan Harsh Sharma v. The State of Maharashtra, where non-bailable offences under sections 408 and 420 of the IPC that cannot be compounded except with the consent of the court clashed with bailable and compoundable offences under sections 43, 65, and 66 of the IT Act.