Some major defects in the Information and Communication Technology (ICT) Act. 2006

(PART 2) Provisions related to Cyber Tribunal

Sec.75: The procedure to be followed by the session judge. –
(1) The session court will follow the section 23 of the Code of Criminal Procedure while judges judging the crimes under this Act.
(2) Whatever there may be in the Code of Criminal Procedure, without the report of any official having the status not less than a sub-inspector and any approval of any official appointed by the controller for the purpose any session court as its original jurisdiction, will not take any case to judge.

Comment: As said in section 69, autonomous power to sub-inspector.

Sec.76: The power of investigation of crime etc. –
(1) Whatever may be in the Code of Criminal Procedure, controller or any other authority having authority from the controller or any police official having the rank not less than sub-inspector, will investigate the crimes under the Act.
(2) The crimes under this Act shall be considered as non-cognizable.

Reason for amendment of this provision:
As to the section, offences will be non-cognizable. For this the law enforcers could not take steps against such offences because of the clause. For crimes such as online dissemination of pornographic contents or online sexual harassment, some offences under the act should be made cognizable. The Criminal Investigation Department at a conference of the police in May 2010 gave a brief presentation on the elimination of drawbacks in the act in fighting cyber crimes. High officials who attended the conference agreed on the issues.
Sec.77: Confession. –
(1) Any computer, computer system, floppies, computer disks, tapes, drives or any other accessories related therein respect of which any provision of this Act, rules, regulations made there under has been or is being contravened, or in respect of which any offence has been committed, shall be liable to confiscation by an order of the court trying an offence or contravention.
(2) If the court has been satisfied that the person in whose possession, power or control any such computer, computer system, floppies, compact disks, tape drives or any other accessories relating thereto is found not responsible for the contravention of the provisions of this Act, rules, orders or regulations made there under, the confiscation will not take effect.
(3) Any legal computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, is found with the confiscated computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, the legal ones will also be confiscated.
(4) Whatever may be in this section, if at the time of doing crime under sub-section (1) of the section, any computer or any related things of any government or registered government officials is used, then those will not be confiscated.

Comment:
As to sub-section (3) of the section, legal computer, computer system, floppies, compact disks, tape drives or any other accessories which found with the confiscated computer, computer system, floppies, compact disks, tape drives etc will also be confiscated. It should have mentioned the reason for confiscating legal ones.

Sec.79: Network service providers not to be liable in certain cases. – For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, or rules and regulations made there under, for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he has exercised all due diligence to prevent the commission of such offence or contravention.
Explanation: For the purpose of this section-
(a) “Network Service provider” means an intermidiary’
(b) “Third party information” means any information dealt with by a network service provider with his capacity as an intermediary.

Comment:
Network service providers may not be held liable for any faults or crimes committed by the computer uses but legal liability may arise to a third party when crime information stored in their service are not regularly reported to the national security authority.

Sec.80: Power to arrest in public places. - In the work of investigation under this Act Controller, any authorized person or any police officer, not below the rank of an inspector of police, may enter any public place and search and arrest without warrant any person found there in who is reasonably suspected having committed or of committing or of being about to commit any offence under this Act by stating the reasons of searching in a written form.

Reason for amendment of this provision:
As to the section any suspected person can be arrested by inspector of police but the bail process provided by sec. 76 is not so easy. So this may cause harassment to people who are not guilty and they may be wrongly be poisoned.
Beside as to the section Controller, Police officer may enter into any public place for investigation, but what will happen in private place? This has to be clarified.

Sec.81: The process of searching etc: - If there is nothing contradictory in the Act every investigation, notice, search, arrest or confiscation under this Act will follow the Code of Criminal Procedure.

Reason for amendment of this provision:
There are certain proceedings in Code of Criminal Procedure which are contradictory to this Act. What will happen in such situation has to be clarified.