The Allahabad High Court (Lucknow Bench) has prima facie observed that merely creating an email ID in another person's name does not constitute an offence under Section 66-C of the Information Technology Act, 2008, which deals with the punishment for 'identity theft'.

Section 66-C IT Act provides punishment where a person fraudulently or dishonestly makes use of the electronic signature, password, or any other unique identification feature of another person.

A Bench of Justice Abdul Moin and Justice Pramod Kumar Srivastava noted that the provision specifically refers to an "electronic signature", "password" or "unique identification feature", but does not use the words "e-mail ID".

The bench made the observation while hearing a writ petition challenging an FIR lodged against the petitioners under Section 356(2) BNS and Section 66-C of the IT Act.

The FIR alleged that the petitioners had created an e-mail ID in the name of a third person and used the same to send fake complaints to various persons.

The petitioners argued that the creation of an e-mail ID would not constitute the use of an electronic signature, a password, or any unique identification feature, particularly since there is no bar on one individual creating an e-mail ID in another person's name.

Opposing the petition, counsel for respondent no.4 argued that the petitioners had knowingly created an e-mail ID in another person's name and were using it to send fake messages and complaints, including to the Lok Ayukta.

It was argued that such conduct would amount to using the "unique identification feature" of a third person and would therefore constitute an offence under Section 66-C of the IT Act.

The High Court, however, found this argument prima facie “fallacious and misconceived.”

The Bench observed that once the legislature, in its wisdom, had used the words "electronic signature", "password" or "unique identification feature" under Section 66-C, and had not used the words "e-mail ID", it could not, prima facie, be said that an offence under Section 66-C had been committed merely on the allegations before the Court.

In view of this, the Court found that prima facie a case for interference was made out.

Accordingly, it stayed the impugned FIR and directed that no action shall be taken against the petitioners by the authorities in pursuance of the impugned FIR until further orders.

On the separate allegation of criminal defamation, the petitioners relied on the Supreme Court's judgment in Subramanian Swamy v. Union of India, arguing that criminal defamation proceedings cannot be initiated through an FIR and must be instituted by way of a complaint by the aggrieved person.

The order records this submission but does not finally decide the issue at this stage.

The matter was directed to be listed before the appropriate Bench after the respondents file their counter-affidavits.

Counsel for Petitioner(s): Anuj Dayal, Ankit Kumar Trivedi

Counsel for Respondent(s): G.A., Ashish Gautam, Sumit Kumar Ojha

Case title - Krishna Kant Pandey And Another vs. State Of U.P. Thru Prin. Secy. Home Lko And Others

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