The electronic communications has changed the way the world communicates and also the communication habit. The communication via SMS or electronic email manifests the freedom of speech and expression guaranteed by our constitution to every citizen [Article 19 (1) (a)], however, the freedom is not absolute, it is a qualified right, as constitution also sets significant limitations on that freedom, as the state may by law effect such reasonable restrictions as it deems necessary or expedient in the interest of the security of the state, the sovereignty and integrity of India, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Due to the misuse of the modern communication device and increased incidents of sending hate messages, threatening SMS, threatening Email to politicians, VIPs in politically charged environment, the legislature introduced Section 66A Information Technology (Amendment) Act, 2008 notified w.e.f. 27th October, 2009 which reads as follows:-
“66A. Punishment for sending offensive messages through communication service, etc.- Any person who sends, by means of a computer resource or a communication device,–
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.
‘Explanation.– For the purpose of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.”
Thus, the legislative intent was to make act of sending SMS, emails, or posting of any messages via communication device or computer resource which is grossly offensive or of menacing character or any information which the sender knows to be false but posted for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity etc. or disguised or anonymous emails or fake emails to cause annoyance.
“Grossly offensive or menacing character”: However, when an information or message shall be termed as grossly offensive or having menacing character has not been defined or explained in the Section 66A IT Act which leaves room for controversy. Interestingly, the Section 66A IT Act is deeply influenced and probably originated from Section 127 of the Communication Act 2003, an UK Legislation.
The wordings of Section 127 of the Communication Act, 2003 are as follows:-
“127 Improper use of public electronic communications network
(1) A person is guilty of an offence if he–
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he–
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).”
Thus, the Communications Act 2003 section 127 covers the sending of grossly offending or menacing messages via public electronic communications network. Section 127(1)(a) relates to a message etc that is grossly offensive or of an indecent, obscene or menacing character and should be used for indecent phone calls and emails. Section 127(2) targets false messages and persistent misuse intended to cause annoyance, inconvenience or needless anxiety. The judgment of DPP v. Collins ( EWHC 1308 (Admin)), an UK High Court decision sheds some light to what is “Menacing Character”, in which it observed that “A menacing message, fairly plainly, is a message which conveys a threat – in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen. Here the intended or likely effect on the recipient must ordinarily be a central factor in deciding whether the charge is made out. Obscenity and indecency, too, are generally in the eye of the beholder; but the law has historically treated them as a matter of objective fact to be determined by contemporary standards of decency.”
Further, House of Lords has clarified what makes a message sent by means of a public electronic communications network “grossly offensive” and therefore capable of amounting to a crime under the Communications Act 2003 (“Act”) in Director of Public Prosecutions (Appellant) v. Collins (Respondent) on appeal from  EWHC 1308 (Admin). Their Lordship held that “to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances.
Usages and sensitivities may change over time. Language otherwise insulting may be used in an unpejorative, even affectionate, way, or may be adopted as a badge of honour (“Old Contemptibles”). There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.”
The instances/cases of offending emails, SMS
* A blogger who “let off steam” about the way he was treated by police was convicted of posting a grossly offensive and menacing message. Gavin Brent, 24, from Holywell, Flintshire, was fined £150 with £364 costs by magistrates at Mold. The court heard Brent had been charged with theft offences – which have yet to be dealt with – and posted a message about a police officer’s new-born baby. Magistrates said any reasonable person would find the comments menacing.
* A man was found guilty for tweeting airport bomb threat. His tweet, “Robin Hood airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!!” The tweeter Paul Chambers was actually just kidding. However, the police arrested him and he was charged with sending by a public communications network a message that was grossly offensive or of an indecent, obscene or menacing character contrary to Section 127 of the Communications Act 2003. A district judge at Doncaster Magistrates Court ruled that the Tweet was ”of a menacing nature in the context of the times in which we live”. Chambers has been ordered to pay a £385 fine, a £15 victims surcharge and £600 costs.
* A man from South Yorkshire who sent offensive, threatening and abusive emails directed at children’s social workers in East Sussex was convicted. The accused sent number of very disturbing, obscene and threatening emails in the Children’s Services department. On the complaint of Children’s service department, the police investigated and the man behind the messages was traced and charged with offences under section 127 of the Communications Act.
The threatening emails and SMS were hitherto covered under Section 506 Indian Penal Code. However, with the insertion of Section 66A IT Act, in force w.e.f. 27th October, 2009, these offending emails, SMS are covered under IT Act.
* Threatening Email to Naveen Patnaik, Chief Minister of Orissa: The news report shows that various threatening emails have been sent to the Chief Minister, Orissa Mr. Naveen Patnaik. A person was arrested and the investigation revealed that though the e-mail was sent in the name of one Prakash Behera alias Babuli Behera, the police nabbed his cousin Pratap Behera (35) of Astarang in Puri who confessed to the crime during interrogation. The investigation revealed that the Prakash Behera has no knowledge of Internet. The investigation revealed that Pratap’s family had some land dispute with Prakash’s family and to settle a score Pratap created an e-mail ID in the name of Prakash and sent the mail to the Chief Minister. The case was registered u/s 66A IT Act, r/w 506 IPC.
* Man arrested for making hoax call: A 25-year-old man was arrested on 9TH May, 2010 for making an anonymous call warning that Delhi Chief Minister Sheila Dikshit’s life was in danger. Veer Singh, a resident of Farsh Vihar in east Delhi, allegedly made the call Thursday to implicate a man who was harassing him to repay his dues. He had stolen a mobile phone from Narela in outer Delhi to make the call to the police control room and then called up the other man. Veer Singh thought the police would track down the other person and arrest him in connection with the death threat to the Delhi chief minister.
* Threatening SMS sent to Shashi Tharoor, Ex-Union Minister for State and other Parliamentarians: The accused person “A” was having animosity towards other person “B” in a love triangle, and the A in order to frame B, impersonated himself as B and send threatening SMSs to parliamentarians. The various FIRs were registered u/s 66A IT Act, r/w 506, 507, 509 IPC was registered in various police stations in Delhi, Haryana and Himanchal Pradesh.
The aforesaid incidents revealed that the offending SMS, emails were generally send by the accused persons via electronic medium be it mobile phone or computer network to implicate others. Thus, the alleged act of sending SMS via mobile phone or offending or threatening Email involving criminal intimidation including danger and obstruction are squarely covered under Section 66 A of Information Technology Act, 2000 and there is no application of Section 506 IPC to the alleged act. It would be pertinent to mention here that the bail of the accused person who sent threatening email to CM Naveen Patnaik was denied because of the applicability of Section 506 IPC which in State of Orissa is non bailable. However, the invoking of Section 506/507 IPC to the alleged act is not correct by virtue of Section 81 of the Information Technology Act, 2000 which gives an overriding effect to the provisions of the IT Act over the other Acts including the Indian Penal Code. It clearly states that, “the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.” Thus, this section of the Information Technology Act 2000 if read with Section 66A makes the legislative mandate very clear & loud that in matters pertaining to threat or criminal intimidation via a computer resource or communication device, the IT Act 2000 would have an overriding effect over other law including the Indian Penal Code in view of the clear mandate of Section 81 IT Act. The Section 81
IT Act, is reproduced below:-
“81. Act to have overriding effect.
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 or the Patents Act, 1970.”
Even otherwise, Hon’ble Apex Court in case titled as Suresh Nanda Vs. C.B.I. in Criminal Appeal No. 179 of 2008 in SLP (Crl.) No. 3408 of 2007 held that the Special Act prevails over General Acts. The author has successfully represented the accused persons in the Shashi Tharoor SMS case and secured their bail by successfully arguing that in view of the specific provisions in the I.T. Acts, 2000, which are bailable in nature, the same would have the overriding effect by virtue of non obstante clause in Section 81 IT Act and the other offences of the IPC have been added by the prosecution merely for the purpose of making the offence non bailable in nature and they are not applicable. The author argued in length and stated vehemently before the Session Court that as the result of the investigation done by the Delhi Police which clearly reveals that the alleged act of threatening, criminal intimidation and endanger was with the sole intention to harass the other person involved in love triangle and clearly, there was no intention to execute the threat or commit extortion which is one of the essential ingredients to bring home the offences mentioned under Section 506 IPC. Even otherwise the offence u/s 506 IPC in Delhi is bailable. Further, no overt act has been alleged to be done by the accused persons which show any intention to execute the threat or extortion.
* Practicing as an advocate in Delhi Courts dealing with cases specially relating to Criminal Law, Cyber Law etc.
* Providing consultancy on the matter relating to the detection, prevention of offence relating to cyber law, collection of digital evidence for legal purposes, remedial measures and filing & followup of cases in the court and other legal forum.
* Conducting arbitral proceedings in MCX Exchange and other matters.