Learn to file complaint before Adjudicating Officer?

Author’s Note

We’ve written this blog for you to have an understanding of some very important practical concepts.

In this blog, we explain how you can file a complaint to the Police and to the Adjudicating Officer.

We’ve also talked a little about the Section 43(d) of the IT Act, 2000. While discussing Section 43(d) the chief focus of this blog on physical damage done to computers. Section 43(d) is used only for illustration purposes. Read in detail about Section 43(d) IT Act here – What do when your friend breaks your phone and won’t pay up?

Table of Contents

1. Introduction to IT Act
2. What is Section 43(d) of the IT Act, 2000?
3. How to file a complaint before an Adjudicating Officer?
4. PROFORMA FOR COMPLAINT TO ADJUDICATING OFFICER UNDER INFORMATION TECHNOLOGY ACT, 2000
5. TABLE OF FEE

Introduction to IT Act 

Information Technology Act, 2000 is the most fundamental law in India dealing cybercrimes and electronic commerce.

The IT Act provides a legal framework for electronic governance by giving recognition to electronic records and digital signatures. It also defines cybercrimes and prescribes penalties for them.

What is Section 43(d) of the IT Act, 2000?

Section 43 deals with a lot of offenses, however, in this blog we are going to stick only to the damage done under Section 43(d). 

Section 43(d) of the Information and Technology Act, 2000 describes the provision in the most general terms, which extends its ambit from damage caused to the computer, its network, program, or any stored piece of information on the computer.

To elaborate upon ‘damage’ caused; the explanation describes it as to destroy, alter, delete, add, modify or rearrange any computer resource by any means. It includes damage to both hardware and/or software either done physically or through the virtual medium.

The language of this section ‘damages or causes to be damaged’, helps in expanding its scope, as it does not only make punishable the damage if caused to the system’s hardware or software but extends to any attempt also being made in that direction.

Illustration: Sameer picks up Pooja’s laptop intending to steal it. He then accidentally drops it on the floor, thereby destroying it. Sameer has damaged Pooja’s laptop.

To cause means to make something happen. The cause can be direct or indirect.

Section 43 of the Information and Technology Act, 2000 is a reality check which functions to monitor the evils of electronic advancements. It is a very powerful section which has been at the center of many judicial controversies, and the legislative detailing.

While setting out the prohibited acts, before the 2008 amendment there could be a compensation award of up to Rupees 10,00,000/-. The same cap was removed after the 2008 Amendment.

In order to convict a person for an offense under Section 43, the following must be proved by the prosecution:

1. the act or acts by the accused must be unauthorized, i.e., without the permission of the owner or any person who is at that moment in charge of the computer system or computer network; and
2. the act or acts so done must result in damage to the computer system or the computer network.

IT Act, 2000 is not the only enactment casing cyber-crime. The Indian Penal Code, 1860 (IPC) could also be termed in to begin prosecution against cyber-crimes or to complement the provisions of the IT Act. For example, offenses like hacking, data theft, virus attacks, denial of service attacks, illegal tampering with source codes together with ransomware attacks could be prosecuted under S.66 r/w S.43 of the IT Act. Cases of forging a credit or debit card or even cloning a mobile SIM with dishonest or fraudulent intent to root wrongful loss or wrongful gain could be prosecuted under IPC provisions (S.463 to S.471 IPC, as applicable).  Sections 463 to 471 of the IPC deal with criminal laws pertaining to forgery.

Should you report to Police or Adjudicating Officer?

You have 2 options here – you can either report it to the police or put the matter before an adjudicating officer.

You may, now, ask what is the difference between the two? And whether you can exercise both the remedies at the same time or even after exhausting the other?

The difference between the two is that you can report it to the police if you want to get the accused penalized under the IPC, however, you would want to take the matter before an Adjudicating Officer when you would want to recover compensation for the damage caused to you by the accused.

Now, as a young lawyer or as a person from a non-legal background you would naturally want to know how you can file a complaint or lodge an FIR against such an offence?

There are majorly two methods to take the matter to the police.

1. You can write a letter attested by the Complainant addressed to the DCP Office having jurisdiction of your area. Don’t forget to keep a copy of the registered speed post receipt safely with you.

Alternatively, you can, simply, walk to the reception of the DCP Office having jurisdiction of your area, with two copies of the complaint attested by the Complainant. Be sure to get one copy stamped and signed by the DCP authority where you would submit the complaint.

NOTE: In the complaint mentioned above, you must not forget to request the DCP to lodge an FIR based on the facts mentioned in the complaint.

2. You can lodge an FIR in the Police Station of the appropriate jurisdiction.

NOTE: Make sure that you approach the DCP Office or Police Station of the correct jurisdiction. You can easily find out on the internet the address of the DCP Office and Police Station having jurisdiction of your area.

How to file a complaint before an Adjudicating Officer?

You need to go through the IT Act Notification No. 240 by the Ministry of Communication and Information Technology to know who is an Adjudicating Officer?

This notification, basically, tells you that the Adjudicating Officer in your State/ Union Territory is the Secretary to the Department of Information and Technology (DoIT) of your State or Union Territory.

Thus, you need to send your complaint to the Secretary of the DoIT of your State or Union Territory. You can easily find the address of you the Secretary on the official website of DoIT of your area.

Remember, to address the Secretary as “Adjudicating Officer” in your complaint.

There is a particular format of the complaint which is to be made to the Adjudicating Officer. This proforma has been given in the Appendix to the Information Technology (Qualification and Experience of Adjudicating Officers and Manager of Holding Enquiry) Rules, 2003. The proforma is given below at the end of the blog for your ease of reference.

Rule 8 of the Information Technology (Qualification and Experience of Adjudicating Officers and Manager of Holding Enquiry) Rules, 2003 lays down the fee which has to be accompanied with the complaint to the Adjudicating Officer.

PROFORMA FOR COMPLAINT TO ADJUDICATING OFFICER UNDER INFORMATION TECHNOLOGY ACT, 2000

I. Complainant

1. Name
2. E-mail address
3. Telephone No.
4. Address for correspondence
5. Digital Signature Certificate, if any

II. Respondent

1. Name
2. E-mail address
3. Telephone No.
4. Address for correspondence
5. Digital Signature Certificate, if any

III. Damages claimed Fee deposited Demand Draft No.______ dated __________Branch_______

IV. Complaint under Section/Rule/Direction/Order etc.

V. Time of Contravention

VI. Place of Contravention

VII. Cause of action

VIII. Brief facts of the case

Signature of the Complainant

TABLE OF FEE