non bailable offences(cyber crimes) under cyber law(it act,2000) - prashant mali

8/11/2019 Non Bailable Offences(Cyber Crimes) Under Cyber Law(IT Act,2000) - Prashant Mali

1/6

Cyber Law(IT Act,200) Series

[email protected] @CyberMahaGuru

NON BAILABLE OFFENCES( Cyber Crimes) UNDER The IT Act, 2000 (Cyber Law)

By Prashant Mali, Cyber Law & Cyber Security Expert

What is a Non Bailable Offence in India ?

An offence can be classified as a Bailable or a Non-Bailable offence. Normally abailable offence is an offence which is less severe and for which the accused has a rightto be released on bail. While a non-bailable offence is a serious offence and for thesame accused doesnt have bail as a right. Section 2(a) of Criminal Procedure Code,1973 (CRPC) defines Bailable Offence as well as Non-Bailable Offence as follows -Section 2(a) - Bailable offence" means an offence which is shown as bailable in theFirst Schedule, or which is made bailable by any other law for the time being in force:and "non-bailable offence" means any other offence.Supreme Court, in the case of Gudikanti Narasimhulu & Ors vs Public Prosecutor,High Court Of AP decided on 6th December, 1977, has given a set of considerationsthat must be given while giving bail in case of non-bailable offences. These are -

1. the nature of the crime2. the nature of the charge, the evidence, and possible punishment3. the possibility of interference with justice4. the antecedents of the applicant5. furtherance of the interest of justice6. the intermediate acquittal of the accused7. socio-geographical circumstances8. prospective misconduct of the accused9. the period already spent in prison10. protective and curative conditions on which bail might be granted.

What is a Non Bailable Offences Under The IT Act, 2000 in India ?

Sec.77Bof the IT Act 2000states that, notwithstanding anything contained in the code

of criminal procedure,1973(2 0f 1974),the offence punishable imprisonment of three

years and above shall be cognizable and the offence punishable with imprisonment of

three yearsshall be bailable.

According to first scheduleof code of criminal procedure 1973:

Offence punishable with death, imprisonment for life, or imprisonment for

more than seven years is non bailable.

Offence punishable with three years and upwards but nor more than seven

years is non bailable.


2/6



So considering above two provisions following offences fall under the category of non

bailable offences

1. Section 66F. Cyber terrorism

(1) whoever,-

(A) With intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or

any section of the people by

(i) Denying or cause the denial of access to any person authorised to access computer resource; or

(ii) Attempting to penetrate or access a computer resource without authorisation or exceeding authorised

access; or

(iii) Introducing or causing to introduce any Computer Contaminant, and by means of such conduct causes or

is likely to cause death or injuries to persons or damage to or destruction of property or disrupts or knowing

that it is likely to cause damage or disruption of supplies or services essential to the life of the community or

adversely affect the critical information infrastructure specified under section 70, or

(B) knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding

authorised access, and by means of such conduct obtains access to information, data or computer database

that is restricted for reasons of the security of the State or foreign relations; or any restricted information, data

or computer database, with reasons to believe that such information, data or computer database so obtained

may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the

security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to

contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of

individuals or otherwise, commits the offence of cyber terrorism.

(2) Whoever commits or conspires to commit cyber terrorism shall be punishable with imprisonment which

may extend to imprisonment for life

Reason: Person committing cyber terrorism shall be punishable with imprisonment which may extend to

imprisonment for life.

2. Sect ion 67. Punishm ent for pub l ishing o r transm it t ing obs cene material inelectronic form

Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material

which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt

persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained

or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which

may extend to three years and with fine which may extend to five lakh rupees and in the event of a second or

subsequent conviction with imprisonment of either description for a term which may extend to five years andalso with fine which may extend to ten lakh rupees.

Reason: In the event of second or subsequent conviction person is punished with imprisonment of

description for a term which may extend to five yearsand also with fine which may extend to ten lakh

rupees.


3/6



3. Sect ion 67A. Publ ishing or transmit t ing o f mater ial containing expl ic i t act,

etc in electronic form

Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material

which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either

description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in

the event of second or subsequent conviction with imprisonment of either description for a term which may

extend to seven years and also with fine which may extend to ten lakh rupees.

Reason: Person committing above act shall be punished on first conviction with imprisonment of either

description for a term which may extend to five yearsand with fine which may extend to ten lack rupees

and in the event of second or subsequent conviction with imprisonment of either description for a term

which may extend to seven yearsand also with fine which may extend to ten lack rupees.

4. Sect ion 67B. Publ ishing or transmit t ing o f mater ial depict ing chi ldren in

sexual ly expl ic i t act, etc in electronic form

Whoever,-

(a) Publishes or transmits or causes to be published or transmitted material in any electronic form which

depicts children engaged in sexually explicit act or conduct; or

(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or

distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner;

or

(c) Cultivates, entices or induces children to online relationship with one or more children for and on sexually

explicit act or in a manner that may offend a reasonable adult on the computer resource; or

(d) Facilitates abusing children online; or

(e) Records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,

shall be punished on first conviction with imprisonment of either description for a term which may extend to fiveyears and with a fine which may extend to ten lakh rupees and in the event of second or subsequent

conviction with imprisonment of either description for a term which may extend to seven years and also with

fine which may extend to ten lakh rupees:

Provided that the provisions of section 67, section 67-A and this section does not extend to any book,

pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-

(i) The publication of which is proved to be justified as being for the public good on the ground that such

book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest of

science, literature, art or learning or other objects of general concern; or

(ii) Which is kept or used for bonafide heritage or religious purposes.

Explanation:For the purposes of this section, "children" means a person who has not completed the age of

18 years.

Reason: Person committing above act shall be punished on first conviction with imprisonment of either

description for a term which may extend to five yearsand with fine which may extend to ten lack rupees

and in the event of second or subsequent conviction with imprisonment of either description for a term

which may extend to seven yearsand also with fine which may extend to ten lack rupees.


4/6



5. Sect ion 69. Power to issue direct ions for intercept ion o r mon i tor ing or

decrypt ion of any informat ion through any compu ter resource

(1) Where the central Government or a State Government or any of its officer specially authorised by the

Central Government or the State Government, as the case may be, in this behalf may, if satisfied that it is

necessary or expedient so to do in the interest of the sovereignty or integrity of India, defense of India,

security of the State, friendly relations with foreign States or public order or for preventing incitement to the

commission of any cognizable offence relating to above or for investigation of any offence, it may, subject to

the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the

appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or

decrypted any information generated, transmitted, received or stored in any computer resource.

(2) The Procedure and safeguards subject to which such interception or monitoring or decryption may be

carried out, shall be such as may be prescribed.

(3) The subscriber or intermediary or any person in charge of the computer resource shall, when called

upon by any agency which has been directed under sub section (1), extend all facilities and technical

assistance to -(a)provide access to or secure access to the computer resource generating, transmitting, receiving or

storing such information; or

(b)intercept, monitor, or decrypt the information, as the case may be; or

(c)provide information stored in computer resource.

(4) The subscriber or intermediary or any person who fails to assist the agency referred to in sub-section (3)

shall be punished with imprisonmentfor a term which may extend to seven years and shall also be liable to fine.

Reason: Punishment under this section is imprisonment for seven years.

6. Sect ion 69A. Power to issue direct ions for block ing for p ubl ic access ofany informat ion through any c omputer resource

(1) Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied

that it is necessary or expedient so to do in the interest of sovereignty and integrity of India, defense of India,

security of the State, friendly relations with foreign states or public order or for preventing incitement to the

commission of any cognizable offence relating to above, it may subject to the provisions of sub-sections (2),

for reasons to be recorded in writing, by order direct any agency of the Government or intermediary to block

access by the public or cause to be blocked for access by public any information generated, transmitted,

received, stored or hosted in any computer resource.

(2) The procedure and safeguards subject to which such blocking for access by the public may be carried

out shall be such as may be prescribed.

(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished

with an imprisonment for a term which may extend to seven years and also be liable to fine.

Reason: Punishment under this section is imprisonment for seven years so it is Non Bailable Offence.


5/6



How The Bailable Offences Under The IT Act, 2000 Can Become Non-Bailable

With The Insertion Of Provisions Under The IPC ,1860

In case of following crimes if provisions of The IT Act, 2000 are combined with certainprovision of Indian penal code then bailable offence will become non bailable.

A. Data theft

The IT Act Sections: 43(b) read with 66 | IPC sections: 379,420

Under The IT Act, 2000 the offence is bailable, but if the offence is charged with

sec.379 & sec.420 of Indian penal code then it would become Non-bailable.

B. Hacking

The IT Act sections: 43(a) read with 66C |IPC sections: 379

Under The IT Act, 2000 the offence is bailable, but if the offence is charged with

sec.379 of Indian penal code then it would become Non-bailable.

C. Softw are piracy

The IT Act sections: 43(b) read with 66 | IPC sections: 120B, 420, 468 & 471 | The

copyright Act sections: 63

Under The IT Act, 2000 the offence is bailable, but if offence is charged with sections

120B,420,468 & 471 of Indian penal code then it would become Non-bailable.

D. Credit card fraud

The IT Act sections: 43(a), 43(b) read with 66 | IPC sections: 420,467,468 & 471

Under The IT Act, 2000 the offence is bailable but if charged with sections 420,467,468

& 471 of Indian penal code then it would become Non-bailable offence.


6/6



E. Dishonest ly receiv ing stolen computer resourc e or communicat ion device

The IT Act sections: 66B | IPC sections: 413,414

Under The IT Act, 2000 the offence is bailable, but if charged with sec.413 & sec.414 of

Indian penal code then it would become Non-bailable offence.

F. Web defacement

The IT Act sections: 65 |IPC sections: 463,464,468 & 469

Under The IT Act ,2000 the offence is bailable but if charged with sections 462,464,468


G. Phishing

The IT Act sections: 43 read with 66D |IPC sections: 379,420

Under The IT Act, 2000 the offence should be bailable, but if charged with sections 379


H. Cyber extor t ion

Cyber extortion is a crime involving an attack or threat of attack against an enterprise

using computer coupled with a demand for money to avert or stop attack.

Example- Denial of service (Dos) attack.

IPC sections: 383,384

Under Sec.383 & sec.384 of Indian penal code extortion is a Non-bailable offence.

Conclusion :

In general parlance people feel all offences are Non-Bailable under The IT Act, 2000

(Cyber Law of India). But this article shows which section under The IT Act,2000 are

Non-Bailable and Which an Investigating Officer(IO) can make it Non-Bailable using his

discretion. In my practice I have observed many a time Investigating Officer adds a Non

Bailable section purposefully so that the accused is punished with police custody or

magistrate custody in the pretext of investigation yet incomplete. One should

understand Non Bailable offence does not means that the accused would be denied a

bail, it means the Bail is not a matter of right here and can be denied by lower courts but

the same would be granted by Higher Courts.

non bailable offences(cyber crimes) under cyber law(it act,2000) - prashant mali

Documents