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Anjali Sharma (Student)     10 August 2009

I am a law student..... Urgent doubt regarding IT act 2000

Dear learned Advocate friends,

I am a third year law student at Patna. I am aspiring to become a good cyber crime lawyer. 

Tomorrow I have to make a seminar presentation regarding the Information Technology Act. If possible can you give the following answers?

1. From When Information Technology Amendment Act 2008, is functional in India.

2. If new cyber crime cases are booked, should it be booked under IT act 2000 or IT amendment act 2008?

3. Is IT amendment act 2008, retrospective. ( Suppose a cyber crime case is booked in 2003 under section 67 of IT act 2000, now say for example if it is coming to High court for Bail cancellation for the accused, Should the High court take into consideration of the IT amendment act 2008, which reduced the punishment for section 67 to three years maximum (from five years) and made offences punishable with 3 years punishment as bailable?)

Can you please help me with this. Thanks in advance.

Regards,

k.Anjali Sharma

some relevant cases in internet.

https://www.dubbagol.com/News/Municipal_Councillor_-ex_caught_clicking_obscene_women_photos/

"Sayyed has been booked under Section 66 E (C) of Information Technology (Amendment) Act, 2000.

https://www.outlookindia.com/article.aspx?239075

"Now, it is learnt that the government is reducing penalties further and making it a bailable offence. Currently, the punishments range from 3-10 years and are non-bailable. That could be inviting trouble."

https://timesofindia.indiatimes.com/NEWS/India/Email-to-Prez-lands-boy-in-soup/articleshow/4839941.cms

"Delhi Police arrested Avinash and released him on bail as the offence is bailable. "

https://www.hindustantimes.com/StoryPage/StoryPage.aspx?id=528c482a-5240-422a-8aea-82de3d00d6a1

"Bajaj said in his petition that since section 67 of the Act does not define the term obscenity" -----so is there a chance for a judgement that section 67 be scrapped altogether since obscenity is not defined



Learning

 15 Replies

Pradeep (Advocate)     10 August 2009

Hi Anjali,

I would like to answer your issue no. 3.

 

Though indian constitution prohibits the retrospective application of criminal laws, if it is beneficial to the accused, then same can be valid. refer Article 20(1) of indian constitution, and exemptions for the same, also refer to the beneficiary rule of statutory interpretation. below link also could be helpful.

https://www.legalserviceindia.com/article/l293-Ex-Post-Facto-Laws-and-Indian-Legal-Scenario.html

 

rajesh (law officer)     10 August 2009

the amendment act 2008 has not been notified till the date of its taking effect is notified by govt. in official gazette the amendment act will not take effect (see section 1(2) of the amendment act published in official gazette on 5.2.09) till such notified date is decided and publ;ished IT act 2000 shall govern the field

 

in view of above rest of queries  are of academic interest however to clarify even after amendment new cases will be booked under IT Act 2000 ( as amended from time to time) being the original act and shall have prospective effect unless otherwise so provided in the amendment act itslef.

TamilSelvam K (Advocate)     10 August 2009

 Dear Friends,

The information Technology Amendment Act 2008 has been notified on 5 Feb 2009 and had been updated in mit.gov.in website. The Amended Act is now in force in India from 5 Feb  2009. 

In this news TOI article,

https://timesofindia.indiatimes.com/articleshow/4839534.cms

the Gujarat Police had arrested him only under the Section 66 E (C) of Information Technology (Amendment) Act.

So there is no doubt the Amended law is enforced already.

Nipul Jain (Lawyer)     10 August 2009

I am 100 percent sure that the IT Amendment Act 2008 is notified and is in enforcement now. See this page https://electronicaudit.in/about.php where it says "These auditing are absolutely essential since this has become the mandatory requirement of law after the passing of the Information Technology (Amendment) Act 2008 which was notified on February 5, 2009."

Adv. Prashant Mali [MSc(CS),LL (CyberLaw IPR Consumer software piracy hacking data theft EOW financial crimes trade mark copyright IPR)     10 August 2009

1. The  IT Amendment Act 2008 has been notified on 5 Feb 2009 , I have uploaded for everyobody's usage

2. new cyber crime cases are already booked under  IT amendment act 2008

3. IT amendment act 2008 is prospective and offences punishable from 5 feb 2009 under it only

As some Good news are carried in amendments some bad are like The Compensation limit is Removed from 1 Crore rupees and now it depends upon the Court & Judge to decide..Very risky

Thanks

PRashant Mali

IT SEcurity & CyberLaw Consultant

Adv. Prashant Mali [MSc(CS),LL (CyberLaw IPR Consumer software piracy hacking data theft EOW financial crimes trade mark copyright IPR)     10 August 2009

Some of the changes which should be noted

Section 2(ha) added to define "Communication Device"

Cellphones, PDAs etc are specifically brought under ITA 2000 though these were considered part of the definition of "Computer". The use of the term "any other device used to communicate, send or transmit" extends the definition to ATMs or Credit Card swiping devices etc.

S(46) : The powers of the Adjudicator limited for claims upto RS 5 crores. Civil Court's authority introduced for claims beyond Rs 5 crores

66F: Cyber Terrorism

Provides Life Sentence, This is the first time ever any wher cyber terrorism is defined

New Section 67B introduced to cover Child Pornography with stringent punishment. Imprisonment 5 or 7 years and fine RS 5 or 10 lakhs for first and subsequent instances respectively. Also covers "grooming" and self abuse

**** S(78)Power to investigate any cognizable offence vested with Inspectors instead of DSPs

84 B  introduced to make "abetment" punishable as the offence itself

84 C: introduced to make an "attempt to commit an offence" punishable with half of the punishment meant for

 

rajesh (law officer)     12 August 2009

mr. mali kindly see the gazette notofication dated 5.2.09  especially section 1(2) u will get the answer whether act has been notified or not

Prajin Pawar (owner)     13 August 2009

Mr. Phrashanth Maali, I think Mr. Rajesh is correct in his saying that IT Act has not yet been amended. It is not yet notified. I am in internet service provider business for last 5 years. I know these things pakka. Mr. Maali, I see in your photo that you have nothing outside your head. Now I feel that you have nothing inside your head too. (just kidding) . Please dont misguide the members of this reputable website.

Adv. Prashant Mali [MSc(CS),LL (CyberLaw IPR Consumer software piracy hacking data theft EOW financial crimes trade mark copyright IPR)     13 August 2009

Arey Cybercafe does not mean Internet Service Provider, .  when i saw such stupid language i thaught i woul see ur profile u dont what ISP means . please learn first

and please check www.mit.gov.in

Abhimanyu (student)     31 August 2009

Well guys m doing a moot where the section 66 of the IT act in dispute... well actually the whole story is as some people kw that 2008 amendment was just done but not notified..

but now the truth is that Mr. Mali is right, it is very well true the amendment are in action and everything is done now by the 2008 amendment and not 2000...

 

n also Mr. Prajin who do u think u r?? we all are either an authority, a law student or a lawyer... u have no authority to jst comment what ever the hell u think u may or maynot think is right.. u run ur business then its good for u.. dont u dare try and redicule sm1 with a half wit brain of urs .. learn the law n then fcking comment on it...

 

and guys do check out the site

https://www.mit.gov.in/default.aspx?id=321

this is the exact link that u will find handy...

 

cheers all..

Mr_chamku (HR)     24 September 2009

Hello Abhimanyu & Prashant Mali

As Per Your Profile & information I found that you guys are good but please read again the refernces Given by you https://www.mit.gov.in/default.aspx?id=321 

Page 3 H (w)  inmediatery  

Which clearly mentions that Cybercafe & ISP are equvailent

I am not so good in law english but i think they are same please both read again & clear Us out.

 

cheers

A Mishra (Director)     24 September 2009

Dear Anjali,

I'm sorry to give a late reply since I became a member recently,nonetheless the wrong information given here has forced me to post answer to your querry.

  1. IT Amendment Act 2008 not yet functional,as it is not yet notified.
  2. In view of answer 1 above,new cyber crime cases will have to be registered under the 2000 Act.
  3. Now the answer to the riddle of whether the Amended Act has come into force.It appears that people here have not read conjointly Section ( 1 ) (2) of 2008 Act which says that the Amended Act shall come into force on such date which the Central Govt. may by Notification in the Official Gazette appoint.Now this Section has to be read with Section 5(1) of The General Clauses Act,1897.Since the 2008 Act itself talks about a specific/appointed date,therefore the Act shall not come into force from the date when Presidential assent is received. Last but not the least,the 5.2.2009 notification says" That the following Act of Parliament received the assent of the President on the 5th February,2009, and is hereby published for general information".The said notification nowhere mentions the "appointed day".Furthermore,there is more 'non-sequitor', in as much as no notification or Government website can override a statutory provision,which in present case happens to be Section (1) (2) of the IT Amendment Act 2008.

Abhimanyu (student)     24 September 2009

ohho.. itni confusion.. yeah the said thing is not yet notified but in force.. aree bare act change ho gyi hain... n Mr. mishra notification s hv come out.. i hf d copy of d notification gazi pdf file... will try to upload it whn i get d tym..

A Mishra (Director)     24 September 2009

Hi Abhimanyu,

How can any act despite not being notified be in force.This is against all cannons of jurisprudence. Change of bare act in a book or police following the wrong law will not change the position that 2000 Act is holding the field .If anyone takes action under 2008 Act it can be set aside in the constitutional courts.Show me the appointed date in the Gazette Notification and I'll stand corrected.Think like a Constitutional lawyer and look for hard facts!


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