Analysis: State of Maharashtra v. Vishal Bhogade and Sandesh Dere [R C.C. No. 2095/2013]

Facts:

• Dr. Sanjay Tungar working in the Cyber Crime Cell which comes under Commissioner office, Pune received an E-mail on the mail ID of the Pune Commissioner.
• The subject matter of the same was “In Ganesh festival bomb blast”.
• Further the mail contains the message as “Mission Ganesh attack. If you want to stop try but don’t cry”.
• The mail due to its objectionable nature prompted actions and hence sent to the cybercrime cell for further investigation.
• Preliminary investigation by Dr Sanjay Tungar reveals the source of the mail i.e. Raje Computers located in Rajgurunagar, Pune through the information obtained by Yahoo Company and BSNL.
• On reaching the aforesaid location, it comes to the knowledge that the internet connection is in the name of the accused Vishal Bhogade while the cafe is run by Sandesh Dere.
• The cyber cafe (Raje Computers) was not registered. Necessary records were not maintained. I.D proof was not obtained from users and hence, police could not reach to the main culprit.
• Consequently, an FIR was lodged by Dr Sanjay Tungar and police inspector Smt. Alfonso recorded   the statement   of   witnesses, seized   hard disk, conducted spot panchanama and filed a charge sheet.
• In the charge sheet that was filed the accused was liable under the following offences: Section 43(g), 66 and 67C(2) of IT Act, 2000 and Section 188 of IPC, 1860.[1]

Issues

• Whether the accused dishonestly or fraudulently assists to unknown person to facilitate access to a computer network in contravention of the act, rules or regulations made thereunder.
• Whether the accused on the aforementioned time and date an order promulgated by the public servant.
• Whether the accused contravene the IT Act, 2000 (guidelines for Cybercafe) rules, 2011; (Sec. 67­C (2).

Holding

The honourable judicial magistrate first class court, Pune acquitted the accused under section 43(g), 66 of Information Technology Act and section 188 of Indian Penal Code but held them criminally liable under Section 67C(2) of the Information Technology Act and convicted them for imprisonment for fifteen days and a fine of rupees ten thousand each as they violated the rules and regulations.

Arguments Advanced

• The accused under the present case were charged under sections 43(g) which pertains to assisting any person to facilitate access to the computer system in contravention to the Information technology Act, 2000. In the present case, there seemed to be no damage to the computer or the computer system per se and hence the charge levied against the accused stands dismissed.
• Further, section 66 of the IT Act was also applied which is the penal section to 43(g), describing about the quantum of punishment extending up to three whole years and fine which may extend up to five lakhs rupees. Now, since the section 43(g) is no longer applicable, consequently the section 66 also fails.
• Section 188 of the Indian Penal Code was pressed against the accused. Since there exists a special act for the same and no act of non-compliance were noticed by either the informant Dr Sanjay Tungar or police inspector Alfonso, the charges were dropped.
• Finally, the charges under the section 67C (2) which pertains to Preservation and retention of information by intermediaries which in this case happens to be the cybercafe ‘Raje Computers’ failed to do so. The failure to keep a record of the users or non obtaining of ID proofs of the users or failing to procure any evidence of the possible culprit dismisses the other possible theories such as Email spoofing. Since the acts committed by the accused were in contravention to the provisions mentioned under the IT Act, 2000 the charges were pressed against them.

Dicta

The court in the present case recognised the nexus between the world of cybercrimes and its possible implication in the real world. The cybercrime poses a huge threat before the world community and especially before India in the 21st century. Cyber terrorism such as in the present case; possible bombings at religious gatherings cannot be overlooked. Such acts form the basis for the intention of these rules and regulations. In context with the aforementioned case, the cybercafe failed to maintain a record of the users and if a proper record is not maintained the culprit may escape from clutches of the police.

Rationale

While upholding the provisions mentioned under the Information Technology Act, 2000, the court in its judgement decided that the accused failed to comply with the provisions which include intermediary (in this case, the cyber cafe, Raje Computers) shall preserve and retain information which is of utmost importance in light of the present situation in the country wherein the cyber crimes lead to acts of terrorism. The court recognises and establishes the legitimacy and intention behind the rules and regulations of the Act and therefore violations of the same by the accused by not maintaining a record of the users (as per rule 4 and 5) holds them criminally liable.

Reference:

[1] How to ascertain liability of Cyber Cafe Owner Liability (S67C) in case of cyber crime? (2015). Retrieved from https://www.lawweb.in/2015/08/cyber-cafe-owner-liability-s67c-case-of.html .

P.S the facts in the brief are taken from the aforementioned source.