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Thursday, August 28, 2014

Happy Ganesh Chaturthi

Wednesday, August 27, 2014

The Law Office Profile

Sunday, August 24, 2014

Indian Laws on Privacy of Digital Information of Users

When we log on to the Internet, innovative technologies present the assurance of an easier life, and also an apprehension of abuse by criminal minds. The statement of United Nations High commissioner for Human Rights, Navi Pillay “Internet privacy as important as human rights” and further the resolution called on the 193 UN member states as “to review their procedures, practices and legislation regarding the surveillance of communications, their interception and collection of personal data, with a view to upholding the right to privacy of all their obligations under international human rights law”, exhibits the importance of digital privacy and law.
Internet is the social behavior of global society; India is no exception to it, data protection and privacy depend on ‘The Information Technology Act 2000′, and this article cannot be completed without the reference of Art 21 and Art 19. While there is no express indication to a right to privacy into the Constitution of India, an interpretation of Supreme Court of India considered it under article 21, life with dignity, and freedom of expression under article 19.

The Information Technology Act, 2000 (IT Act, 2000)

IT Act 2000 was the first constructive attempt on data protection legislation in India; it was the result of  the United Nations General Assembly Resolution A/RES/51/162 on 30th January, 1997 regarding the Model Law on Electronic Commerce.
The prime objective of IT Act 2000 is to provide legal frame work for electronic documents, digital signature, offence and legal remedy. It has two folds, it enunciated compensation (civil liability), and punishment (criminal procedure), both in public and private domain.
The Information Technology Amendment Act 2008, initialize data protection regime in India.    it  was the off spring of data protection laws in European Union, which obligates it’s member States to prohibit to send personal data to third party unless same genesis of laws are in place.
Image Source: Judicial Learning Center

Data Protection and Privacy

Section 43A (Penalty and compensation, for damage to computer, computer system, etc) is an important provision in the act which is based out on negligence, implementing reasonable security practices and procedures, wrongful loss and wrongful gain and compensation. This section envisages civil liability in terms of penalty and compensation If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network – accesses or secures , downloads, copies or extracts, introduces or causes to be introduced a computer virus, damages or causes to be damaged, disrupts or causes disruption, destroys, deletes or alters any information or computer or computer systems.
Sections 65 is the penal provision, as tampering with computer source documents, which establishes imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both, who knowingly or intentionally conceals, destroy, or alter any computer source code used for a computer, computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force.
Section 66 is the hot cake in recent time, it deals with Computer related offences, Section 66 read with section 43 execute a criminal mandate as if any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both. The word used in the section dishonestly or fraudulently in relation to section 43 for curtaining hacking to computer or unauthorized use of protected information.
Section 72, Penalty for breach of confidentiality and privacy, – Directly demonstrate privacy protection with a penal provision. Section says “Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.”
Section 43A and Section 72A, protected the data even outside the India, but the expectation of corporate are too high, ‘The information technology amendment Act, 2008 was aimed to rectify such lacunas in our country, still much more is needed.
The Information Technology (Reasonable security practices and procedures and sensitive personal information) Rules 2011 has been notified by Ministry of Information and Technology under Section 43A to define ‘sensitive personal information’ and to stipulate ‘reasonable security practices’.

Right to Information Act 2005 (RTI Act)

RTI Act is not an erosion to right to privacy. Indeed RTI Act established a safeguard against the violation of privacy under section 8(j), which exempt from disclosure of personal information, which is not serving any public purpose. further under section 11, establish a procedure where PIO intends to disclose any information on a request made under this act, which relates to or has been applied by a third party and has been treated as confidential by that third party, and such objections in writing or oral by third party shall be kept in view while taking a decision about disclosure of information.
Does it mean the present laws related to data protection and privacy are sufficient?
The answer is not affirmative, in the light of public policy, and transparency. Although there are various amendments and judicial pronouncements to strengthen data protection, but still the existing law is not competent to cope with emerging technologies.  Issues like conflict of jurisdiction, IPR protections, domain names, still need to be addressed and the training to investigations agencies is also an important part. I can remember an interesting case where in a CD was being seized by police personal for evidence, and to preserve the CD the Investigation Officer made a hole in it and then tagged it into the file, before producing in the court of law.
About the author: Naveen Kumar Shelar is an advocate and a legal consultant, who founded the online law firm –The law office. He is an author of several academic & professional legal books and management articles, and established an NGO called “Nayaya A Voice For Justice”  to ensure that nobody is deprived of an opportunity to seek justice merely for want of funds or lack of knowledge.

Monday, August 18, 2014

Court’s territorial jurisdiction concerning criminal complaints filed under Chapter XVII of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’)

Court’s territorial jurisdiction concerning criminal complaints filed under Chapter XVII of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’)

An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank.
(ii) Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section  138.
(iii) The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if 
(a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue.  

(b) If the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque and 

(c) If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice.
(iv) The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act. 

(v) The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the Court till such time cause of action in terms of clause (c) of proviso accrues to the complainant. 

(vi) Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured. 

(vii) The general rule stipulated under Section 177 of Cr.P.C applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whos jurisdiction the dishonour takes place except in situations where
the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof

A Magistrate not become functus officio to proceed on a Protest Complaint just because he accepted a refer report from the police on the same matter

Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant?

Magistrate  had  not become  “functus officio” and was denuded of all power to proceed in the  matter. 

Supreme four of  India In Rakesh and another vs. State of UP the Supreme Court [Crl. Appeal 1412/2014]

(Arising out of SLP(CRL.) No.3308 of 2013)



1. Leave granted.

2. Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant? The above question having been answered in the affirmative by the Allahabad High Court, this appeal has been filed by the accused.

3. The bare facts that would be required to be noticed are as follows :

Respondent No.2 herein lodged an FIR which was registered as Crime Case No.480 of 2000 under Section 364 of the Indian Penal Code at the Police Station Gosai Ganj District Sultanpur against the appellants and two other accused persons. On completion of investigation, the investigating officer submitted a final report to the court that no case is made out against the appellants and the other two accused and that they have been falsely implicated in the case. By order dated 26th November, 2002, the learned Magistrate accepted the final report but simultaneously directed that the case be proceeded with as a complaint case. The statements under Sections 200 and 202 of the Code of Criminal Procedure (Cr.P.C.) were recorded and the accused were summoned by the learned trial court to face the trial. Against the aforesaid orders passed by the learned Magistrate, the present appellants moved the High Court of  Allahabad raising the question noticed earlier. The High Court having answered the said question in the affirmative, this appeal has been filed. 

4. We have heard learned counsel for the parties. 

5. In Bhuneshwar Prasad Sinha vs. State of Bihar 1 , the very same question came up for consideration before the Patna High Court. The High Court answered the question in the negative by holding – 

“In that case it has been held by the 
Supreme Court that if the Magistrate agrees 
with the opinion of the police he may accept 
the final report and close the proceedings. It 
will be deemed that the proceedings against 
the accused persons in respect of the facts
constituting the offence have been closed by 
the Magistrate in a Judicial-Proceeding. If it is 
so, such proceeding can only beset aside in 
revision by the higher authority unless and 
until the order is not set aside, the Magistrate 
is not entitled to take cognizance on the 
basis of the complaint petition or protest
petition in respect of the same facts 
constituting the offence as mentioned in the 
final form. In the present case, it is clear from 
the order dated 6th Dec. 1978, that the final 
form was accepted by the court earlier. If it is 
so, then the Magistrate was not justified in 
taking cognizance in respect of the same 
facts constituting the offence which were 
mentioned in the final form. In order to check
1 [1981 Crl.LJ 795] 
the litigation, it is necessary that when a 
judicial order is passed by accepting the final 
form such order should not be set aside by  
the Magistrate by taking cognizance on the 
basis of the complaint petition.” 
6. In the appeal filed against the aforesaid order of the 
Patna High Court, this Court, however, held that – 
“The High Court was clearly in error in 
thinking that the Magistrate could not take 
cognizance of a case upon complaint because 
he had earlier refused to take cognizance of
the case on a police report. The order of the 
High Court is set aside. The matter is 
remitted to the Chief Judicial Magistrate, 
Patna for disposal according to law. If the  
accused have any further objections to raise,
they may do so before the Chief Judicial 

The decision of this Court is reported in Gopal Vijay 
Verma vs. Bhuneshwar Prasad Sinha & Ors. 2 .

7. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma (supra), notice must be had of the decision of this Court in H.S. Bains vs. 2 1982 (3) SCC 510 State (Union Territory of Chandigarh) 3 wherein it was
held that after receipt of the police report under Section 173, the Magistrate has three options –
“(1) he may decide that there is no sufficient 
ground for proceeding further and drop 
(2) he may take cognizance of the offence
under Section 190 (1)(b) on the basis of the
police report and issue process; this he may
do without being bound in any manner by the
conclusion arrived at by the police in their
(3) he may take cognizance of the offence
under Section 190(1)(a) on the basis of the
original complaint and proceed to examine
upon oath the complainant and his witnesses
under Section 200. If he adopts the third
alternative, he may hold or direct an inquiry
under Section 202 if he thinks fit. Thereafter
he may dismiss the complaint or issue
process, as the case may be.”

8. The second and third options available to the Magistrate as laid down in H.S. Bains (supra) has been referred to and relied upon in subsequent decisions of this Court to approve the action of the Magistrate in accepting the final report and at the same time in proceeding to treat 3 [1980 Crl. LJ 1308],  either the police report or the initial complaint as the basis for further action/enquiry in the matter of the allegations levelled therein. Reference in this regard may be made to the decision of this Court in Gangadhar Janardan Mhatre vs. State of Maharashtra & Ors.4. The following view may be specifically noted –

“…………….The Magistrate can ignore the
conclusion arrived at by the investigating
officer and independently apply his mind to
the facts emerging from the investigation and
take cognizance of the case, if he thinks fit,
exercise his powers under Section 190(1)(b)
and direct the issue of process to the
accused. The Magistrate is not bound in such
a situation to follow the procedure laid down
in Sections 200 and 202 of the Code for
taking cognizance of a case under Section
190(1)(a) though it is open to him to act
under Section 200 or Section 202 also. [See
India Carat (P) Ltd. v. State of Karnataka]”
(Para 6)

9. The view expressed by this Court in Gopal Vijay Verma (supra) has been followed in Mahesh Chand vs. B.Janardhan Reddy & Anr. 5 and also in a somewhat recent pronouncement in Kishore Kumar Gyanchandani vs. 4 [2004 (7) SCC 768] (para 9)
5 [2003 (1) SCC 734] (para 12) 6 G.D.Mehrotra & Anr.6. The clear exposition of law in para 12 of Mahesh Chand (supra) which is extracted below would leave no manner of doubt that the answer to the question posed by the High Court is correct.

“There cannot be any doubt or dispute that
only because the Magistrate has accepted a
final report, the same by itself would not
stand in his way to take cognizance of the
offence on a protest/complaint petition; but
the question which is required to be posed
and answered would be as to under what
circumstances the said power can be

10. In the present case, the contention advanced on behalf of the accused pertained to the question of jurisdiction alone; it was urged that having accepted the final report the learned Magistrate had become “functus officio” and was denuded of all power to proceed in the matter. The above stand taken and the answer provided by the High Court would not require us to consider the circumstances in which the exercise of power was made. 6 [2011 (15) SCC 513]7

11. In Kishore Kumar (supra) the question has been gone into again and reliance has been placed on Gopal Vijay Verma (supra) to reiterate the same conclusion.

12. In view of the above, it has to be held that this appeal is
without any merit or substance. It is accordingly dismissed.
[Sudhansu Jyoti Mukhopadhaya]
[Ranjan Gogoi]
New Delhi;
August 13, 2014.