SYMBIOSIS INTERNATIONAL UNIVERSITY

SYMBIOSIS LAW SCHOOL

PUNE

INFORMATION TECHNOLOGY LAW

IIIrd Internal

PROBLEM SOLVING

SUPALLAB CHAKRABORTY
IVth year
B.B.A, LL.B Div C
13010124203
 TABLE OF INDEX

TABLE OF INDEX .............................................................................................................................. 1

TABLE OF AUTHORITIES ................................................................................................................... 3

PROBLEM 1 ILLEGAL ACCESS AND IDENTITY THEFT ...................................................................... 5

PROBLEM 2 TAMPERING WITH SOURCE CODE ............................................................................... 8

PROBLEM 3 THEFT OF INTERNET HOURS ..................................................................................... 11

PROBLEM 4 ALTERATION & DIMINISHING OF COMPUTER RESOURCES......................................... 13

 TABLE OF AUTHORITIES
Indian Cases

A. Shankar S/o. K. Achimuthu v. State rep. by Cyber Crime Cell Crime Branch CID,
MANU/TN/3055/2010 ............................................................................................................ 3, 5
Abhinav Gupta v. State of Haryana, 2008 Cr LJ 4536 ................................................................... 4
Anvar P.V v. P.K.Basheer, 119(2015)CLT177 ............................................................................ 10
Ashish Arora v. State of Kerala, 2014CriLJ1189 .......................................................................... 4
C. Venkatachalam vs Ajitkumar C. Shah & Ors, (2011) 9 SCC 707 ............................................. 9
Dewsoft Overseas Pvt. Ltd. v. CST, [2008]16STT376 ................................................................. 3
JCB India Ltd. vs I.P. Address :122.163.98.166, MANU/DE/2584/2008 ...................................... 6
Manoj Oswal v. The State of Maharashtra and Sakal Papers Pvt. Ltd., 2013 (4) BomCR 760 (Cri)
pp. 31 ........................................................................................................................................... 2
Rajkot Municipal Corp. v. Manjullben Jayantilal Nakum, (1997) 9 SCC 552 ......................... 6, 10
Ramswarnagao v. State, 1996 CrLJ 856 ................................................................................. 3, 6, 8
Routermania v. ITO, [2007] 16 SOT 384 ................................................................................... 2, 7
S. Sekar v. The Principal General Manager (Telecom), MANU/TN/9663/2007 ....................... 5, 7
Syed Asifuddin And Ors. v. The State Of Andhra Pradesh, 2006 (1) ALD Cri 96 .................... 6, 7
Tamil Nadu Kalyam Mandapam v. CCE, Chennai, 2006 (3) STR - 260 (S.C.) ............................. 3
Tata Consultancy Services v. State of Andhra Pradesh, AIR2005SC371 ...................................... 4
Vimla v. Delhi Administration, AIR 1963 SC 1572 ............................................................. 3, 9, 10
Avtar Singh v. State of Punjab, AIR 1965 SC 666 ......................................................................... 8
Kundan Singh vs The State, I(2016)CCR1(Del.), pp 28 ................................................................ 3
Shashank Shekhar Mishra v. Ajay Gupta, ILR(2011)Supp.(4)Delhi612 ....................................... 2

Foreign Cases

United States v. Mohrbacher, 182 F.3d 1041, 1048 (9th Cir. 1999) ............................................. 3

Statutes

Section 11, Information Technology Act, 2000.............................................................................. 2

Section 2(1)(a), Information Technology Act, 2000 ...................................................................... 2
Section 43(h), Information Technology Act, 2000 ......................................................................... 8
Section 43(j)(iv) Definition of Damage, Information Technology Act, 2000 ....................... 5, 11
Section 65, Information Technology Act, 2000........................................................................ 6, 11
Section 88 of Indian Evidence Act, 1873 ....................................................................................... 2

Other Authorities

Aiyar P. Ramanatha, The Law Lexicon- The encyclopedia of law dictionary, Edited by Y.V.
Chandrachd CJI. 2012 reprint, 5th Edn. ....................................................................................... 3
Diane Rowland and Elizabeth Macdonald,Information Technology Law; Canandish Publishing
Limited; (1997) ..................................................................................................................... 6, 11
 PROBLEM 1 ILLEGAL ACCESS AND IDENTITY THEFT

Mr. A accessed the information on the paid website by using his friend, Mr. Bs password
who is a paid member of the said website, without his friends permission.

The kind of problem posed here in the above mentioned issue will entitle Mr. B to both civil and
penal remedy under the Information Technology Act, 2000 (hereinafter referred to as the Act).
Therefore we will be initially dealing with the civil remedy under Section 43 of the Act [1.1] and
then after that with the penal provisions contained in the Act and the parent statute of Indian
Penal Code, 1860 [1.2].

[1.1] Civil remedy available under Section 43 of the Act

Mr. A in the present case can be charged under Section 43 of the Act; which states that if any
person without permission of the owner or any other person who is in charge of a computer
network, either accesses or secures access to such computer network [Section 43(a)]; or
downloads computer data base or information from such computer network [Section 43(b)] shall
be liable to pay damages in the form of compensation.

(a) Whether there was unwarranted access to computer network

Access as has been defined in the act as gaining entry into, instructing or communicating with
the logical, arithmetical or memory function resources of a computer, computer system or
computer network.1

Mr. A gained access to the account of Mr. B in a website which falls within the definition2 of a
computer network3, which unlike other informative websites can be accessed only by a login
password. The login password authenticates that the person to whom the unique identity is
connoted4 is the one who has access to the information, data or interactivity of the website. 5 In
this case the login password belonged to Mr. B since its access was restricted by payment and

1
Section 2(1)(a), Information Technology Act, 2000
2
Routermania v. ITO, [2007] 16 SOT 384
3
Manoj Oswal v. The State of Maharashtra and Sakal Papers Pvt. Ltd., 2013 (4) BomCR 760 (Cri) pp. 31
4
Section 11, Information Technology Act, 2000; Section 88 of Indian Evidence Act, 1873
5
Shashank Shekhar Mishra v. Ajay Gupta, ILR(2011)Supp.(4)Delhi612
authenticated by a password. Mr. A had only but wrongfully gained access to the said website
and therefore liable to pay damages in the form of compensation as per Section 43 (a) of the Act
to Mr. B.6

(b) Whether there was download from the computer network

Download means to receive information, typically a file, from another computer to yours via a
modem.7 Webpage being collection of information which are made to appear through a web
server8 are automatically means the information is being downloaded into the computer system.
If someone accesses a computer system of another person taking advantage of the persons
absence will trigger the offense under the section of 43 (b) of the Act as per the ruling of
Shankar v. State.9

[1.2] Penal provisions of the act and Indian Penal Code that will be attracted

It is a known fact that pecuniary interests are involved in a paid website because the information
access and database retrieval in such interactive website10 work only on payment basis.11 The
provision under Section 66 would be attracted also because the acts under Section 43 of the act
were attempted dishonestly and fraudulently. The act of Mr. A caused a wrongful gain to himself
and wrongful loss to Mr. B thus satisfying the elements of acting dishonestly.12 The reason it can
be stated that Mr. A also acted fraudulently because there was an injury to the victim Mr. B. This
is the kind of injury wherein the deceived may or may not suffer losses but the deceiver
wrongfully entails himself to certain economic benefit or losses.13 Therefore under this section
itself the deceiver can be sentenced for three years imprisonment and fine of five lakh rupees.

6
Kundan Singh vs The State, I(2016)CCR1(Del.), pp 28
7
United States v. Mohrbacher, 182 F.3d 1041, 1048 (9th Cir. 1999)
8
Aiyar P. Ramanatha, The Law Lexicon- The encyclopedia of law dictionary, Edited by Y.V. Chandrachd CJI.
2012 reprint, 5th Edn.
9
A. Shankar S/o. K. Achimuthu v. State rep. by Cyber Crime Cell Crime Branch CID, MANU/TN/3055/2010
10
Tamil Nadu Kalyam Mandapam v. CCE, Chennai, 2006 (3) STR - 260 (S.C.)
11
Dewsoft Overseas Pvt. Ltd. v. CST, [2008]16STT376
12
Ramswarnagao v. State, 1996 CrLJ 856
13
Vimla v. Delhi Administration, AIR 1963 SC 1572
The provision of Section 66C of the Act will also get attracted because for the purpose of Section
66 the element of dishonestly and fraudulently have already been satisfied. 14 The act of using of
password (unique identity of Mr. B) was performed combined with these elements thus
constituting offense under Section 66C of the Act.15

Since the word property has wide connotation, internet would also be covered within the ambit
of that term.16 Therefore the act would also attract provisions of criminal trespass under Section
441 of the Indian Penal Code. The elements of the offense committed satisfy that of Section 441
i.e. firstly the complainant was in possession of property and secondly the accused entered into
the property unlawfully.

14
Ibid 1.2 (para 1)
15
Ashish Arora v. State of Kerala, 2014CriLJ1189; Abhinav Gupta v. State of Haryana, 2008 Cr LJ 4536
16
Tata Consultancy Services v. State of Andhra Pradesh, AIR2005SC371
 PROBLEM 2 TAMPERING WITH SOURCE CODE

Mr. S is a student of one employee in an educational institute. He enters in to the Computer

Lab of the institute without the permission of the Lab Instructor and changes the setting
and location of the files kept on one computer.

The kind of problem posed here in the above mentioned issue will entitle the institute to both
civil and penal remedy under the Information Technology Act, 2000 (hereinafter referred to as
the Act). Therefore we will be initially dealing with the civil remedy under Section 43 (i) of the
Act [2.1] and then after that with the penal provisions contained in the Act and the parent statute
of Indian Penal Code, 1860 [2.2].

[2.1] Remedy under Section 43 (d) & (i)

If any person without permission of the owner or any other person who is in charge of a
computer, computer system damages or causes to be damaged any computer, computer system or
computer network, data, computer data base or any other programmes residing in such computer,
computer system or computer network [Section 43 (d)] and destroys, deletes or alters any
information residing in a computer resource or diminishes its value or utility or affects it
injuriously by any means [Section 43(i)]

Computer database" means a representation of information, knowledge, facts, concepts or

instructions in text, image, audio, video that are being prepared or have been prepared in a
formalised manner or have been produced by a computer, computer system or computer network
and are intended for use in a computer, computer system or computer network. Therefore it is
evident from the fact that the files accessed17 and manipulated are a part of computer database
and therefore were damaged18 on alteration.19 Section 43 (i) would also get attracted because
such alteration of data in computer resources may lead to diminish in the value of the computer

17
A. Shankar S/o. K. Achimuthu v. State rep. by Cyber Crime Cell Crime Branch CID, MANU/TN/3055/2010
18
Section 43(j)(iv) Definition of Damage, Information Technology Act, 2000
19
S. Sekar v. The Principal General Manager (Telecom), MANU/TN/9663/2007
system20 and Mr. S would be liable to pay damages to the institution i.e. owner of the computer
resources.21

[2.2] Penal provisions of the act and Indian Penal Code that will be attracted

The provision under Section 66 would be attracted also because the acts under Section 43 of the
act were attempted dishonestly. The act of Mr. A caused a wrongful loss to Mr. B thus satisfying
the elements of acting dishonestly.22 Whoever with the intent to cause or knowing that he is
likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters
any information residing in a computer resource or diminishes its value or utility or affects it
injuriously by any means, commits the offense of hacking and thus will be liable under Section
66 of the Act for three years of imprisonment and upto five lakh rupees fine.23

Section 65 of the Act states that whoever knowingly or intentionally conceals, destroys or alters
or intentionally or knowingly causes another to conceal, 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,
shall be punishable with imprisonment up to three years, or with fine which may extend up to
two lakh rupees, or with both.24

Source code has been given multiple definition and interpretation under the act and case laws. As
per the definition under section 65 source code means the listing of programmes, computer
commands, design and layout and programme analysis of computer resource in any form.25
Computer source code or source code, or just source or code may be defined as a series of
statements written in some human readable computer programming language constituting several
text files but the source code may be printed in a book or recorded on a tape without a file
system, and this source code is a piece of computer software.26 Thus, source code is always

20
Syed Asifuddin And Ors. v. The State Of Andhra Pradesh, 2006 (1) ALD Cri 96
21
Rajkot Municipal Corp. v. Manjullben Jayantilal Nakum, (1997) 9 SCC 552
22
Ramswarnagao v. State, 1996 CrLJ 856
23
JCB India Ltd. vs I.P. Address :122.163.98.166, MANU/DE/2584/2008
24
Section 65, Information Technology Act, 2000
25
Section 65, Information Technology Act, 2000
26
Diane Rowland and Elizabeth Macdonald,Information Technology Law; Canandish Publishing Limited; (1997)
closely guarded by the computer companies, which develop different function specific computer
programmes capable of handling various types of functions depending on the need.

Like in the case of Syed Asifuddin And Ors. v. The State Of Andhra Pradesh27 it was stated that
if someone manipulates and alters ESN, otherwise belonging to Samsung/LG handsets
exclusively used by them, become usable by other service providers like TATA Indicom.
Therefore, prima facie, when the ESN is altered, the offence under Section 65 of I.T. Act is
attracted because of breach of source document. Thus even in this case the student is liable to be
charged under Section 65 of the Act.28

Since the word property has wide connotation, computer system would also be covered within
the ambit of that term.29 Therefore the act would also attract provisions of criminal trespass
under Section 441 of the Indian Penal Code. The elements of the offense committed satisfy that
of Section 441 i.e. firstly the complainant was in possession of property and secondly the accused
entered into the property unlawfully.

27
S. Sekar v. The Principal General Manager (Telecom), MANU/TN/9663/2007
28
Syed Asifuddin And Ors. v. The State Of Andhra Pradesh, 2006 (1) ALD Cri 96
29
Routermania v. ITO, [2007] 16 SOT 384
 PROBLEM 3 THEFT OF INTERNET HOURS

Zoomnet is an Internet Service Provider. It provides services of internet. One consumer is

having a plan for 6 GB and up to 6 months. But the ISP demands full payment on the
expiry of 4 months saying that all 6GB package is exhausted. In reality, the consumer has
used only 5.2 GB out of the package.

The present case is pertaining to the issue of theft of internet hours i.e. is the use by an
unauthorised person, of the Internet hours paid for by another person. The person who gets
access to someone elses ISP user ID and password, either by hacking or by gaining access to it
by illegal means, uses it to access the Internet without the other persons knowledge. Applying
the nature of the offense to the civil remedies provided under the Act, Section 43(h) would be
best suited for the above mentioned issue.

Section 43 (h) states that if any person without permission of the owner or any other person who
is in charge of a computer, computer system or computer network charges the services availed of
by a person to the account of another person by tampering with or manipulating any computer,
computer system or computer network; destroys, deletes or alters any information residing in a
computer resource or diminishes its value or utility or affects it injuriously by any means; he
shall be liable to pay damages by way of compensation to the person so affected.30

Moreover Section 378 of Indian Penal Code, 1860 would also get attracted. Even if internet
hours is not a movable property for the purpose of legal fiction created under Section 43(h) of
the act internet hours will be treated as movable property.31 Therefore it satisfies all the elements
of theft under Section 378 i.e. a movable property i.e. the internet, dishonestly taken out of the
possession of the owner (i.e. consumer).

The provision under Section 66 would be attracted also because the acts under Section 43 of the
act were attempted dishonestly and fraudulently. The Internet Service Provider i.e. Zoomnet
caused a wrongful gain to himself and wrongful loss to the Consumer thus satisfying the

30
Section 43(h), Information Technology Act, 2000
31
Avtar Singh v. State of Punjab, AIR 1965 SC 666
elements of acting dishonestly.32 The reason it can be stated that Zoomnet also acted fraudulently
because there was an injury to the consumers. Injury has been defined as wherein the deceived
had to suffer losses and the deceiver wrongfully entails himself to certain economic benefit or
profits.33 Therefore under this section itself the Zoomnet can be sentenced for three years
imprisonment and fine of five lakh rupees.

As per the preamble of the Consumer Protection Act, 1986 the consumer has the Right to be
informed about the quality, quantity, standard and price of goods or services so as to protect the
consumer against unfair trade practices. The fact that the provider himself is manipulating the
quantity of service provided it would attract Section 6 of the the Consumer Protection Act,
1986.34

32
Ramswarnagao v. State, 1996 CrLJ 856
33
Vimla v. Delhi Administration, AIR 1963 SC 1572
34
C. Venkatachalam vs Ajitkumar C. Shah & Ors, (2011) 9 SCC 707
 PROBLEM 4 ALTERATION & DIMINISHING OF COMPUTER RESOURCES

Mr. A compresses C Drive on the laptop of his boss Mr. P without his permission? What
action Mr. P can take against Mr. A?

Using the compressed attribute is one way to compress a file down to a smaller size to save
on hard drive space, and can be applied in a few different ways. Turning on the compressed file
attribute for a file will reduce the size of the file but will still allow Windows to use it just like it
would any other file. When a compressed file is opened, Windows decompresses it for you
automatically. When it closes, it gets compressed again. This happens over and over as many
times as you open and close a compressed file.

For a typical case like this with no permanent damages to the computer civil provision of Section
43(i) and Section 43(j) of the Act would get attracted. Section 43 (i) would also get attracted if
such alteration of any information residing in a computer resource or diminishes its value or
utility or affects it injuriously by any means [4.1] and 43(j) would get attracted if any person has
stolen, concealed, or destroyed or altered or causes any person to steal, conceal, destroy or alter
any computer source code used for a computer resource with an intention to cause damage.[4.2]

[4.1] Damages under Section 43(i) of the Act

Computer resource means computer, computer system, computer network, data, computer data
base or software therefore the C drive would be considered a part of the computer resource.35
The actions of the Mr. A diminish the value and utility of the drive and the computer system and
the same was done injuriously.

Injuriously has not been defined in Indian Penal Code but discussed in context of fraudulently
wherein it has been stated that even if the deceived have also suffered losses and the deceiver
wrongfully entails himself to certain economic benefits.36 Thus Mr. A is liable to pay damages to
Mr. P in the form of compensation.37

35
Anvar P.V v. P.K.Basheer, 119(2015)CLT177
36
Vimla v. Delhi Administration, AIR 1963 SC 1572
37
Rajkot Municipal Corp. v. Manjullben Jayantilal Nakum, (1997) 9 SCC 552
[4.2] Alteration of source code to cause damages

Source code has been given multiple definition and interpretation under the act and case laws. As
per the definition under section 65 source code means the listing of programmes, computer
commands, design and layout and programme analysis of computer resource in any form.38
Computer source code or source code, or just source or code may be defined as a series of
statements written in some human readable computer programming language constituting several
text files but the source code may be printed in a book or recorded on a tape without a file
system, and this source code is a piece of computer software.39

Causing damage to the source code includes alteration of the same as per the definition of
damages.40 Thus alteration of the C-drive by compressing the same does amount to causing of
damages and therefore Mr. A would be liable to pay compensation to Mr. P for compressing and
altering his computers source code.

38
Section 65, Information Technology Act, 2000
39
Diane Rowland and Elizabeth Macdonald,Information Technology Law; Canandish Publishing Limited; (1997)
40
Section 43(j)(iv) Definition of Damage, Information Technology Act, 2000