IT has in one way or the other pervaded every aspect of human activities. This revolution has changed society fundamentally. The underlying basis of a civilized society is human interaction, the modus of which has changed significantly, by new technologies. These developments have given rise to an unprecedented change, economic and social, but they also have a darker side-the birth of cyber crime. Statistics of cyber crime are shocking. It is estimated that cyber crime is growing @ 4.1 percent per week. It is estimated that in 1993, 640 criminal complaints of cyber crime ie 1.7 per day, were instituted. For the year 2000, the estimated figure stands at 2,82,000 ie 773 on an average per day. And these are the figures when no more than 10 percent of cyber crime gets reported! Billions of dollars are being spent on law enforcement against cyber crime and for effective security technology.
So as to deter cyber criminals, Section 80 has been incorporated in the IT Act, 2000 which grants wide powers of arrest without warrant to police and certain other officers. In nutshell, the following are the ingredients of sub-section (1) of section 80 of IT Act:
Ø The power to enter any public place and search and arrest without warrant any person found therein, is vested only in a police officer not below the rank of a Deputy Superintendent of Police (Called 'SDP' in short) or any other officer of the
Central Government or a State Government who is authorized by the Central Government;
Ø This power can be exercised only in a 'public place' which as per the Explanation to section 80 includes any public conveyance, any hotel, any shop or any other place intended for use by, or accessible to the public;
Ø This power to enter any public place and search and arrest without warrant any person found therein, can be exercised only on the ground that such person is reasonably suspected of having committed or of committing or of being about to commit any offence under the IT Act, 2000.
As section 80 stands, it covers the following three situations:-
v A person is alleged to have committed an offence under the IT Act in a place other than a public place, but is found in a public place at the time of arrest;
v A person is alleged to have committed an offence under the IT Act in a public place, but is found in some other public place;
v A person is alleged to have committed or is committing or is about to commit an offence under the IT Act, in a public and is found in that very public place;
Since the power of arrest without warrant can be exercised only from a public place, section 80 is reduced to a mere farce as it can be defeated with luxurious ease. For example, if a person commits hacking from his house (non public place), he can be arrested under section 80 only if he is found in a public place at the time of arrest. However, if he remains in the house, he cannot be arrested without warrant under section 80. Taking another example, if a person commits hacking from a cyber café (public place) and returns home, he cannot be arrested under section 80 from is house. Another example would expose section 80. If X from a cyber café in Chennai hacks the computer system of the Finance Ministry in Delhi, he can be arrested under section 80 only if he remains in the cyber café or is found in some other public place. If he is not found in a public place, he cannot be arrested without warrant under section 80. Section 80 is a comedy which assumes that the accused would wait in the cyber café or some other public place for being arrested without warrant, till the offence comes to light in the Finance Ministry at Delhi, at matter is reported to the police, it is then investigated, hacking is tracked to the cyber café in Chennai and then an investigative team is sent to Chennai o arrest the accused. Section 80 presumes that the accused would will slip into deep slumber or coma in the cyber café, so that he is arrested without warrant!
Alternatively, our law makers have assumed that cyber crime investigation is so efficient that the accused would be caught
within so short a time when he is in the cyber café itself from where he hacks the Finance Ministry's computer system or that the accused would be honest enough to be found in a public place. However, this hypotesis is in stark contradiction with the basic characteristic of cyber crime, namely, its' irrelevance and disregard to geographical distances and borders. A cyber criminal sitting on Jupiter may hack into my computer system in Delhi. It has been accepted globally that cyber crime investigation is not only difficult but also time consuming. Section 80, in its' present from, cannot be an effective weapon against cyber crime. It is rather a farce.
Section 80 has also created certain serious anomalies in criminal law. Criminal offences have been classified as 'cognizable' and non-cognizable'. Offences in which arrest without warrant is provided are cognizable offences and others are non-cognizable. The criminal procedure from investigation to trial in cognizable offences is significantly different from non-cognizable offences. Cognizable offences are popularly called FIR cases since it is only in such offences that an FIR can be registered. In cognizable offences, the State plays the role of prosecuting the accused. The investigation and trial are conducted by the State. On the other hand, in non-cognizable offences, the informant/complainant/victim has to file a criminal compliant before the concerned court. In non-cognizable offences, it is the complainant who prosecutes the accused. Though the court has power to direct the police to investigate a non-cognizable offence, it is rarely exercised. The substantial burden of investigation and prosecution of the accused in non-cognizable offence, is upon the complainant. The classification between cognizable and non-cognizable offences is provided in the Criminal Procedure Code, 1973. Broadly speaking, serious offences and those offences where the law makers felt that they should be investigated by the State machinery, have been classified as cognizable. Prosecution of cognizable offences is much more effective than non-cognizable offences in which the substantial burden is put on the complainant. Since the offences defined in the IT Act have not been classified therein, reference needs to be made to the Code of Criminal Procedure, 1973. The basis of this classification in the Criminal Procedure Code, 1973 is the quantum of punishment. Since power of arrest without warrant can be exercised under section 80 of IT Act, only from a public place, the classification of IT offences becomes anomalous and confusion. Reading the definition of 'cognizable offence' with section 80 of IT Act, the classification of IT offences becomes the comedy. By restricting the power of arrest without warrant only from a 'public place', it implies that when the accused would be arrested from a public place, the offence for which he is arrested would become a cognizable offence. If he is not found in a public place the same offence would become non-cognizable. This is absurd because the following confusion would arise after an offence under the IT Act is committed:
Ø Should the information/victim complain to the Police Station or file a complaint before the judicial Magistrate?
Ø If the victim/informant goes to the police station, should the police register an FIR or refer the informant/victim to a Magistrate for a complaint to be filed?
Ø Should the victim/informant or the police first ascertain whether the accused is still waiting to be arrested in a public place and then decide the course of action between the FIR and the complaint procedure?
Ø How should the case be categorized (cognizable or non-cognizable) till it is ascertained whether the accused is in a public place or not?
Ø Upon whom out of the police and the victim/informant would the onus lie to show that the accused is waiting to be arrested in a public place?
When the victim/informant goes to the police station with his complaint of having suffered an offence under the IT Act, the police may refuse to register an FIR unless it is shown that the accused is still in a public place because only then it becomes a cognizable/FIR case. So as to remove the anomaly under section 80, the restriction of its applicability only from a 'public place' should be deleted. Moreover, considering the characteristic of cyber crime, namely, its disregard for geographical borders, inherent difficulties and time consuming nature of cyber crime investigation and the invisibility of cyber criminal as a result thereof, it would be adding insult to injury upon the complainant if IT Act offences are non-cognizable. Due to the aforesaid peculiar characteristics of cyber crime, it is not possible for the complainant/victim to investigate IT offences and prosecute the accused. It is only the State machinery which can perform this duty and hence it is necessary that the IT offences are classified as 'cognizable', for which the expression 'public place' ought to be removed from section 80. Also, the complaint procedure (non-cognizable offences) is so slow that it would be ineffective against IT offences.
Vivek Sood
Author of 'Cyber Law Simplified'
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