Unit 1 Chapter 1

Power of Arrest Without

Warrant Under the IT Act, 2000
 Crimes of the Millennium
• Cyber Crime is the deadliest epidemic confronting our planet in this
millennium.
• A Cyber Criminal can destroy web-sites and portals by
• Hacking and planting viruses,
• Carry out online frauds by transfering funds from one corner of the
globe to another,
• Gain access to highly confidential and sensitive information,
• Cause harassment by E-Mail Threats, play tax frauds,
• Indulge in cyber pornography involving childrens.
• Some of the big web sites such as Yahoo, Buy.com, eBay, Amazon.com were choked
and shut down for hours.

• This was the cyber criminal way of celebrating the arrival of the new milennium,
through a little belated since their preparations for December 31st,1999/January 1st,
2000 (Y2K Attack).
• May 4, 2000 said "I Love You" to the internet community. The
I LOVE YOU virus comes in an email with "ILOVEYOU" in
the subject line and contains an attachment that, when opened, results
in the message being re-sent to everyone.

• The virus spread around the globe in two hours at a blinding speed.
• In December 1999, 300,000 credit Card numbers were snatched from
an online music retailer "CD Universe"
• In March,1999 the Melissa Virus caused an estimated damage of US
$80 million when it swept around the world, paralyzing E-Mail
Systems.

• The FBI (Federal Bureau of Investigation) has estimated losses of up to

US $10 billion a year, at the hands of Cyber Crime.
• Billions of dollars are being spent chasing cyber criminals, as a cost for
law enforcement and Protective technology.

• In 1999, corporate America spent US $4.4 billion on Internet Security

software including firewalls, intrusion-detection programs, and
authentication and authorization software.

• Mr. Bill Clinton, former US President, had announced a Public-Private

sector joint initiative to protect US Information infrastructure from
hackers and viruses.
• Pakistan hacked and defaced more than 40 Indian Web-Sites.
• Amongst others, the group of hackers calling itself G Force Pakistan
hacked the web-sites of the following Indian Organizations:

Indian Science Congress, Asian Age newspaper, National Research

Centre, Agricultural University of Maharashtra, Indian Institute of
Management Ahmedabad, The Gujarat Government, Centre
for Electronics Design and Technology, Indian Institute of Technology
Madras, among several others.
• The second most active group is led by somebody who called himself
Docter Nuker and claims to be the founder of Pakistan Hackerz Club.

• This group has hacked sites of Indian Parliament, Ahmedabad

Telephone Exchange and many more.
• The third most active group is called "Nightman".

• They have hacked both government owned web-sites and those set
up by Indian companies.
• Eg- Lal Bahadur Shastri National Academy of Administration, Blue
Star Infotech and Mahindra& Mahindra.
• Several Israeli web-sites also came crashing down under the alleged
attaks of Palestenian hackers.

• Other instances of cyber crime in India include the web-defacement

of Bhabha Atomic Research Centre, the theft of telephone numbers
and related information from the system of the Chief Manager of
Department of Telecom, hacking of SEBI's web-site where in a link for
pornographic site was inserted.
• Explain the power of Police Officer and other Officers.
• Explain the ingredients of Section 80.
• Explain the characteristics of cybercrimes that do not allow
immediate arrest of the accused by the law enforcement agency in
many cases.
 Section 80 of the IT ACT,2000 – A Weapon or a Farce?

• As the threat of Cyber Crime is increasing , so as to make the cyber

crime punishable , Section 80 is added in the Information Technology
Act, 2000 by the legislature.
" Section 80: The Power of Police officer and other officers
to enter, Search,etc.-"
• If person A is suspected of having committed a hacking offence from
his house.
• He went to the hotel after committing the offence.
• As hotel is a public place the accused can be arrested without
warrant.
• But if after committing the hacking offence he stays at home then
he cannot be arrested without warrant as per section 80.
• This example shows that the Section 80 is established without any
consideration of the internet and cyber criminality which is different
from traditional crimes.
• There are some characteristics of Cyber Crimes that do not allow
immediate arrest of the accused by the law enforcement agency in
many case:-
1) Geographical distance and borders are irrelevant to Cyber Crime.
Cyber Crime can be committed by sitting at one corner of the globe.
It is easy to hack victim banks computer system located at another
place by sitting at the corner and to transfer funds online by sitting at
another corner, so the Cyber Criminals are not visible , they can be any
where.
2) To commit Cyber Crime Cyber Criminals do not come face to face
with the victim as he is not physically present while committing crime.
For Example:- To rob a bank there is no need that the Cyber Criminals
should be physically present like traditional thief.

3) To investigate Cyber Crime, it is very difficult to collect evidence. It is

a very time-consuming process. To find out the Cyber Criminal is a
cumbersome job in most of the cases.
4) Cyber Crime investigation process is time consuming, but
commission of cybercrime is very efficient it will take few seconds
to plant virus into a computer System or perform online fraud for eg "I
Love You" virus which is spread within 2 hours all over the globe.
• Section 80 is not effectively permitted to cyber cafes.
• Cyber Cafes are run by businessmen for a profit and not by detectives
and police officers.
• It is not possible for any cybercafé management to watch and
monitor every click in the café performed by its user.
• A cybercafé must grant privacy and to its customers and satisfy them
otherwise, it would be force to shut down its business.
• While granting privacy to the user , it is next to impossible for the
cybercafé management to know whether the user is hacking a
computer system or has secured access to protected systems such as
defence system of the country.
• At the most cybercafés may be able to maintain certain records as to
the identity of the user from time to time.
• However, that does not help section 80 because cybercriminal would
not wait in the café to be arrested till, they have been
identified through investigation by DSP.
• So then logic of restricting the arrest of the accused without warrant
from only public place is refused to obey undisputed characteristics of
cyber criminality.

• So , it may happen that the criminal at one place but before taking
the warrant he might escape, it shows that the Section 80 is Farce.
Forgetting the line between Cognizable and
Non-Cognizable offences
• The accused arrested from the public place without warrant but there
is still confusion in law and for exposing the same it is necessary to
understand the basics of criminal procedure under our law.
• There are two types of Offences:-
1) Cognizable Offence
2) Non-Cognizable Offence
 Cognizable Offences
• An offence is in which an accused is arrested without a warrant is
called cognizable offence.

• In cognizable offences the police officers have the power

to arrest an accused without warrant.

• In cognizable offences First Information Report (FIR) is registered.

• When a cognizable offense is committed the victim, or the informant
first approach the concern Police Station within whose jurisdiction
the offence has been committed and give the information of the
offence.
• Section 154 of code of criminal procedure contains the procedure for
registration of an FIR. It is as Follow
A) Section 154: Information in Cognizable Cases
B) Section 157: Procedure of Investigation
• In cognizable cases, the investigating police officer has the power to
initiate and proceed with the investigation without a judicial order.
• The investigating officer, also called "IO" in common parlance, has the
power during investigation, to require the attendance of persons who
appear to be acquainted with the facts and circumstances of the case,
for recording their statements.
• After completing the investigation, the police is required to file a
Charge Sheet/Challan/Police Report against the accused before
the criminal court.
• After the Charge-Sheet has been filed, comes the stage for framing of
charges against the accused followed by prosecution evidence,
defence evidence, final arguments and judgement.
Write the examples of Cognizable Offences?
Non-Cognizable Offences
• As compared to this, FIR Procedure is very effective.

• The court in complaint cases has the discretion to postpone

the process and may direct an investigation to be made by the
police for the purposes of deciding whether or not there is sufficient
ground for proceeding against the accused.
• The classification of Cognizable & Non-Cognizable based upon the
seriousness of the offence and necessity.
• The reason being, it would not be possible for
the police to investigate every offence.
• Cognizable offences are generally serious offences as compared
to Non-Cognizable Offences.
Also, After an offence under the IT Act is committed, the following
confusion would arise:
• Should the informant/victim complain to the Police Station or file a
complaint before the judicial Magistrate?
• 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?
Example of Non-Cognizable Offences?
Necessity of Arrest without
Warrant from any Place,
Public or Otherwise
• The nature of cyber criminality is such that the duty of investigation
and prosecution of offences under the IT Act,2000 can be performed
effectively only by the State Machinery through the Police, and it is
necessary to vest the power of arrest without Warrant in the
specified Police Officer and Government Officer as in Section 80,
irrespective of the whereabout of the accused (Public Place or not)
Arrest for "About to Commit" An Offence
Under the IT Act :A Tribute to Draco
• Section 80 of the IT Act,2000, seeks to penalize citizens "About to
Commit" any offence under the Act.

• Section 216A Penalizes "about to commit "robbery or dacoity with

rigorous imprisonment for a term which may extend to seven years.

• The word "about" according to Black's Law Dictionary means:

a) Near in time, quantity, number, quality, or degree;
b) Substantially, approximately
• "about to commit" are used in section 80, they imply a preparation to
commit any offence under the IT Act,2000. This component is wide
open for misuse or is ex-facie draconian.

• Example of misconstruction of these "about to commit" are as

follow:
1. if a person is visiting a website which is giving the information about
how to hack a website, that person can be arrested on the allegation
committing hacking under section 66 , although he is viewing for fun.
2. If a person is visiting a Porn Website & sending mail to his friend
about the website, he can be arrested under section 67 for transmitting
the obscene material.

• Preparation means arranging the measures for committing the

offence. Where attempt is to commit the offence. The attempt is a
direct while preparation is not a direct move. So, the person should
be convicted of attempt to commit.
• Sir James Stephen in his "Digest of Criminal Law" defined attempt as
"An Act done with intent to commit that crime and form part of
series of Acts which will constitute its actual Commission. If it was not
interrupted."
• In a case where a truck was carrying paddy to Delhi from Punjab
allegedly in contravention of the Punjab Paddy (Export Control) Order,
the truck was stopped by a Sub-Inspector of the Food and Supplies
Department at samalkha which is 32 miles from Delhi.

• Prosecution was launched against the accused.

• It was held that since it was quite possible that the accused might
have been warned that they were having no licence to carry the
paddy and they might have changed their mind at any place between
Samalkha barrier and Delhi Border and not have proceeded in their
journey, the offence of attempt had not been committed.

• It was held that the acts of the accused only amounted to

preparation.
Checks and Balances against Arbitrary Arrests
• The debate on section 80, would be incomplete without trashing out
the issue as to whether the checks against arbitrary arrests are
reasonable.
The safeguards provided by the legislature in section 80 are:-
a) The power of Arrest without Warrant, has been vested in a high-
ranking Police Officer, i.e not below the rank of Deputy
Superintendent of Police or any other officer authorized by the central
Government.)

b) The basis on which you are arresting a suspicion must be

reasonable against the accused of having committed or of committing
or of being about to commit any offence under the IT Act, 2000.
• The power of arrest is given to high rank Police Officer that are not
below the DSP is merely presumptuous and not meritorious
(not recommendable) in nature.
• It is observed that Police Officer not below the DSP would fairly use
the power of arrest without warrant.
• It is also said that the DSP of inspector from the same Police Force
share the same morals and that it makes no difference.
• So, it is not fair to compare a DSP with inspector.
• The grant power of arrest to a high rank officer enhances the
credibility when compared to exercise of same power by a
sub inspector (SI) or any other junior Officer.
• Other distinctive characteristics of cyber criminality is technology.
Cyber Crime is progressing. Even a high rank police officer , such as a
DSP cannot keep pace with the technology race.
• The law of IT must mandate that the Police Officer (not below a DSP),
or any other authorized Government Officer , must be assisted by an
expert from the field of Information Technology.
• Investigative skills of a high-ranking police officer (not below DSP)
coupled with the technological expertise of an IT Professional would
be an ideal combination to effectively investigate crimes under the IT
Act and to prevent arbitrary arrests of innocents as well.
• The invisibility of cybercrime and the criminal, enhances the
risk of innocents falling into the net of the DSP.
• An IT hand in Cyber Crime investigation would also act as a check on
the potential of misuse of the power to arrest without warrant.
• IT lawmakers have not listed out many Cyber Crimes in IT Act 2000.
Cyber Crimes like online Frauds and E-Mail abuse are within the
domain of the Indian Penal Code 1860 which would continue to be
investigated by lower ranked police officer.

• The power of investigation vested in a Police Officer not below the

rank of a DSP is only with respect to the offences under the IT Act.
• Find out cybercrime which are not covered under the IT Act and then
suitable amendments should be carried out in the law to bring them
under one umbrella.

• The Police should recruit IT Officer instead of giving training to the

existing police officers on Information Technology.
• Another attack done by the critics against section 80 is against the
word "reasonable is suspected". The critics think that it is loose,
subjective and hence it is exposed for misuse.
• The critics think that it may be possible that the investigating police
officer may misuse this word.
• It may be possible that due to lack of understanding of the
advanced technology the police officer is not able
to entertain reasonable suspicion so it is advised to take the IT Expert
help.
Arrest But No Punishment!
• Section 80 covers three grounds of arrest for offences under
the Act when it says "… reasonably suspected of:-
1) having committed or
2) of committing or
3) of being about to commit
• The words " having committed " are referred to situation where the
offence has been concluded.
• The words "of committing" are referred to situation where a person is
caught in the process of commission of an offence which has not
yet concluded.
• The words "about to commit" are referred to a stage of preparation.
This is a stage before second category that is of committing
• Instead of creating these three categories, sub-section(1) of section
80 should have used the words "reasonably suspected of being
concerned".

• This would have covered the situations of attempt as well as the

commission of the offence, and also the abettors and conspirators.

• As section 80 stands today, abettors and conspirators cannot be

arrested without warrant even from a Public Place.
• Moreover , there should be provisions inserted in the IT Act, 2000 for
punishing abetment and conspiracy.

• If any event happened and the grounds of arrest are "of

committing" and "of being about to commit" then it is not harmful
with other provisions of IT ACT,2000.
Example:- A Person is about to commit hacking of a computer
system or is committing it . That person can get arrested under section
80 but he cannot be punished under Section 66 for the offence of
hacking a computer system because it does not cover either of
committing or of being about to commit within its boundary.
• Some provision should be done in IT Act for these grounds. The
Provision of Section 151 of Criminal Procedure Code should be
incorporated in IT Act.