Creating An Email ID In Another Person’s Name Prima Facie Not Identity Theft U/S 66C IT Act: Allahabad High Court
|The High Court granted interim protection in a case alleging that an email account created in a third person’s name was used to send false complaints to the Lok Ayukta and other authorities.
The Allahabad High Court has prima facie held that creating an email ID in another person’s name does not attract the identity-theft offence under Section 66C of the Information Technology Act when the allegation does not involve the use of that person’s electronic signature, password or unique identification feature.
The Court stayed the impugned FIR until further orders and restrained the authorities from taking action against the petitioners pursuant to it.
The Court was hearing a criminal writ petition challenging an FIR registered for defamation under Section 356(2) of the Bharatiya Nyaya Sanhita, 2023, and identity theft under Section 66C of the Information Technology (Amendment) Act, 2008. The petitioners were accused of creating an email ID in a third person’s name and using it to send false complaints.
A Division Bench of Justice Abdul Moin and Justice Pramod Kumar Srivastava observed:
“Prima facie, the argument of Shri Ojha is found to be fallacious and misconceived, inasmuch as once the legislature in its wisdom has used the words "electronic signature", "password" or "unique identification feature" under Section 66-C of the Act, 2008 and the legislature in its wisdom has not used the words "e-mail ID”, consequently, prima facie it cannot be said that any offence under Section 66-C of the Act, 2008 has also been committed by the petitioners.”
Advocate Anuj Dayal appeared for the petitioners. Advocate Sumit Kumar Ojha appeared for the private respondent.
Background
The FIR alleged that the petitioners had created an email ID in the name of a third person and used it to send false messages and complaints to several recipients, including the Lok Ayukta. The offences invoked were defamation under Section 356(2) of the Bharatiya Nyaya Sanhita, 2023, and identity theft under Section 66C of the Information Technology (Amendment) Act, 2008.
The petitioners contended that a defamation prosecution could not be initiated through an FIR. Relying on Subramanian Swamy v. Union of India (2016), they submitted that criminal defamation proceedings had to be instituted through a complaint made by the aggrieved person and could not be initiated through an FIR or a direction under Section 156(3) of the Code of Criminal Procedure, 1973.
On the identity-theft allegation, the petitioners argued that Section 66C applied only to the fraudulent or dishonest use of another person’s electronic signature, password or unique identification feature. They submitted that the mere creation of an email ID in another person’s name did not fall within any of these categories.
The private respondent contended that knowingly creating an email ID in another individual’s name and using it to send false complaints amounted to the use of that person’s unique identification feature and consequently attracted Section 66C.
Court’s Observations
The Court examined the expressions expressly employed in Section 66C. The provision, as recorded in the order, concerns the fraudulent or dishonest use of specified identity credentials belonging to another person.
The order recorded: “So far as Section 66-C of the Act, 2008 is concerned, the contention is that the same pertains to punishment for identity theft and the Section categorically provides that whoever fraudulently or dishonestly make use of electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years etc.”
The petitioners’ case rested on the distinction between an email ID and the particular identity credentials mentioned in the provision. Their argument, as recorded by the Court, was: “However, creation of an e-mail ID would neither be the use of an electronic signature nor a password nor any unique identification, in as much as, there is no bar that an e-mail ID cannot be created in the name of a particular individual by any other individual.”
The Court prima facie accepted this statutory distinction. It found the private respondent’s argument misconceived because the legislature had expressly referred to an electronic signature, password and unique identification feature, without including an email ID within the provision.
The Court clarified the provisional nature of its assessment by repeatedly qualifying its finding as prima facie. It did not finally determine the petitioners’ challenge or conclusively rule upon the separate objection concerning the initiation of defamation proceedings.
On the strength of its prima facie examination of Section 66C, the Court observed: “Keeping in view the aforesaid discussion, primia facie a case for interference is made out.”
The Court accordingly stayed the FIR until further orders and protected the petitioners against consequential action: “Further, no action shall be taken against the petitioners by the authorities in pursuance of the impugned FIR.”
Conclusion
The High Court granted the State and the private respondent four weeks to file their counter affidavits and allowed the petitioners two weeks thereafter to file a rejoinder. Pending further consideration, it stayed the FIR registered under Section 356(2) of the Bharatiya Nyaya Sanhita, 2023, and Section 66C of the Information Technology (Amendment) Act, 2008, and directed that no action be taken against the petitioners pursuant to it.
The matter was ordered to be listed before the appropriate Bench and was not treated as tied up or part-heard.
Cause Title: Krishna Kant Pandey and Another v. State of U.P. Through Principal Secretary, Home, Lucknow and Others
Appearances
Petitioners: Advocates Anuj Dayal and Ankit Kumar Trivedi
Respondents: Government Advocate and Advocates Ashish Gautam and Sumit Kumar Ojha