Hacking, Data Theft Attract Offences Under IPC Also, Not Just Information Technology Act : Supreme Court

The Supreme Court on Tuesday remarked that in a case of hacking and data theft, in addition to penal provisions of the IT Act, offences under the IPC would also be attracted and that the IT Act would not exclude the applicability of the IPC.The vacation bench of Justices Dinesh Maheshwari and Aniruddha Bose was considering an SLP against the March order of the High Court of Punjab and Haryana dismissing the anticipatory bail plea of the petitioner (one Jagjeet Singh) in connection with an FIR under sections 406 (criminal breach of trust), 408 (criminal breach of trust by clerk or servant in respect of property entrusted to him), 379 (theft), 381 (theft by clerk or servant of property in possession of master), 120-B and 34 of the IPC and sections 43 (damage to computer, computer system, etc), 66 (computer related offences), 66-B (dishonestly receiving stolen computer resource or communication device) of the IT Act, 2000. The FIR contains allegations of theft of software, illegal copying of database and source code etc.The present case emanated out of the FIR dated 20.10.2020 registered at Punjab State Cyber Crime Police Station at the instance of one TCY Learning Solutions Pvt. Ltd., which alleged that some of its ex-employees (the co-accused) have copied/ stolen the data/ source code related to the software of the Complainant Company and transferred the same to one Exoways Web Technologies Private Limited, the company co-founded by the petitioner and in which the petitioner is a director. The petitioner had previously been the co-owner of a franchise of the complainant-company.One of the questions of law raised in the SLP was "Whether the Petitioner is entitled to the benefit of Anticipatory Bail, where his statutory right to bail is defeated by mischievously invoking non-bailable offences of the IPC?"Senior Advocate Siddharth Aggarwal, for the petitioner, advanced, "IPC has been unnecessarily invoked. When the issue is of hacking and theft of data, then it is the IT Act which is attracted and not the IPC. The gravamen of the offence in the FIR is section 43 read with section 66 of the IT Act"It had been urged that the allegations pertain to alleged theft of software and at best may amount to offences under the IT Act under its Sections 43 and 66, which are bailable offences. "However, the FIR has mischievously invoked the provisions of the IPC to deprive the Petitioner of his statutory right to bail", it had been advanced.Mr. Aggarwal indicated that it is section 43 which speaks of the offence where one, without permission of the owner or person in-charge of a computer, computer system or network, accesses such computer; or downloads, copies or extracts any data from such computer; or destroys, deletes or alters any information residing in such computer; steals, conceals, destroys or alters any computer source code; or denies access to any person authorised to access such computer, etc.Further, Section 66 prescribes that if any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable 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 High Court has failed to appreciate that the Apex Court in Sharat Babu Digumarti v. Government of NCT of Delhi [(2017) 2 SCC 18] has categorically held that where the alleged criminal acts pertain to electronic records covered by the IT Act, which is a special statute having an overriding effect, the offender gets out of the net of the IPC. Accordingly, the allegations at best may amount to offences under the IT Act, which are bailable offences and FIR could not have invoked the offences under IPC against the Petitioner", it had been submitted on behalf of the petitioner."You are saying that this is not a case of theft by agent/servant? If 381 (of the IPC) will not come in here, then I don't know what will come!", observed Justice Maheshwari."66 (of the IT Act) is 'hacking' straightaway. But the misappropriation of the hacked materials is not covered under the IT Act! So the IPC would apply", concurred Justice Bose.In the SLP, it was also urged that the High Court had failed to appreciate that the allegations in the FIR pertain to the alleged acts of the Accused No.1, 2 and 3 (one Rahul Nagpal, his wife Harpreet Kaur, and one Ramandeep Singh who is also a co-founder of and Director in Exoways Web), who are ex-employees of the Complainant Company, and that the Petitioner has been named in the FIR only on the ground of him being a Director of Exoways Web Technologies."As per the contents of the FIR, there is basic breach of trust! And you are part of the company! IPC is applicable!", noted Justice Maheshwari.Further, indicating that he has joined in and is cooperating in the investigation, the petitioner had prayed for interim relief by way of an ex-parte ad-interim protection from any coercive action and an ex-parte ad-interim stay on the High Court judgment...

Hacking, Data Theft Attract Offences Under IPC Also, Not Just Information Technology Act : Supreme Court

Mehal Jain

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