Delhi District Court
Also At vs State Of Nct Of Delhi on 30 November, 2018
IN THE COURT OF SHRI SANJEEV KUMAR-II,
ADDITIONAL SESSION JUDGE-5, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL REVISION NO. 496/2017
IN THE MATTER OF:
L.S. Davar & Co.
Through Ms. Anju Agrawal SPA Holder
O/o 32, Radha Madhab Dutta Garden Lane
Kolkata-700010
Also at:
5/1, 1st Floor,
Kalkaji Extension,
New Delhi-110019 ........ Revisionist
VERSUS
State of NCT of Delhi
.......Respondent
Date of institution : 10.10.2017
Date of arguments : 17.09.2018 & 16.11.2018
Date of order : 30.11.2018
JUDGMENT
1. This criminal revision has been filed by the revisionist under Section 397 read with Section 399 of the Code of Criminal Procedure against the order dated 10.07.2017 passed by the learned Metropolitan Magistrate-06, South East District, Saket Courts, New Delhi in CC CR No. 496/2017 L.S. Davar & Co. Vs. State of NCT of Delhi Page No.1 of 5 No. 24/02/2016 titled as "L.S. Davar & Company Vs. Non Known", whereby application under Section 156 (3) of the Code was dismissed.
2. The revisionist had filed criminal complaint under Section 156(3) of the Code against unknown person for offence punishable under Information Technology Act, 2000 (in short "IT Act) read with Sections 120B, 34, 379 & 511 of the Indian Penal Code (in short "IPC"). Learned Metropolitan Magistrate had dismissed the application / complaint under Section 156(3) of the Code observing that mere invalid attempt to log into the e-mail account does not fall under the definition of any offences as provided in the Indian Criminal Law. Hence, this revision petition.
3. Learned counsel for the revisionist has submitted that the complainant / revisionist, a Law Firm of India, is engaged in providing legal services specializing in intellectual property rights and the complainant is the owner of e-mail address [email protected] and has been using the same as its professional business address for correspondence / communication with its national and international client. The complainant's official e-mail ID has various important professional documents, electronic records and the privileged communication etc. As per the information provided by [email protected], as many as 36 illegal login attempts have been made from different locations and devices by unknown persons to access the official e-mail ID of the complainant.
CR No. 496/2017 L.S. Davar & Co. Vs. State of NCT of Delhi Page No.2 of 5
4. Learned counsel for the revisionist further submitted that in view of section 29A IPC, section 2(1)(t) and section 4 of the IT act the date, records, images, sound etc. maintained and stored by the complainant / revisionist in electronic devices and e-mail are documents and movable properties and can be subject of matter of theft. The moment an attempt to access the e-mail ID of the complainant made by unauthorized person, the offence of attempt is made out respective of consequences of that act or attempt. If the persons succeeds in his attempt to access e-mail ID he will enter into his intended domain will take and removed data, records, images etc. and in such event the offence of theft is complete. But if he fails to gain access to intended e-mail ID despite log in attempts, the same is said invalid log in and the attempt to commit offence is complete as define under Section 511 IPC. The invalid attempts to access e-mail ID of the complainant are continuously made and hence it is a matter of investigation as if anyone have succeeded in their motive of dishonestly taking data, electronic records maintained by the complainant. The service provider has been made earlier that the hacker might have succeeded in gaining access to confidential and privileged communications leading to commission of various cognizable offences including theft, password sniffing, data theft, corporate espionage, cyber squatting etc. punishable under Section 43, 65,66 of IT Act read with Section 378, 511, 34, 120B of IPC. The scientific investigation is required to unearth the truth which could not be possible without involvement of investigating agency. CR No. 496/2017 L.S. Davar & Co. Vs. State of NCT of Delhi Page No.3 of 5
5. Learned Metropolitan Magistrate had dismissed the application/complaint under Section 156 (3) of the Code observing that mere invalid attempt to log into the email account does not fall under the definitions of any offences as per provided in the Indian Criminal Law. In complaint under Section 156 (3) of the Code, it is mentioned that offences punishable under IT Act read with Sections 120 B, 34, 379 and 511 IPC are made out. As per learned counsel for the revisionist various cognizable offences including theft, password sniffing, data theft, corporate espionage, cyber squatting etc. punishable under Section 43, 65,66 of IT Act read with Section 378, 511, 34, 120B of IPC are made out. Learned counsel for the revisionist has submitted that the complainant's official e-mail ID has various important professional documents, electronic records and the privileged communication etc. and as per the information provided by [email protected], as many as 36 illegal login attempts have been made from different locations and devices by unknown persons to access the official e-mail ID of the complainant. Learned Metropolitan Magistrate has not mentioned in the impugned order as to why the offences is not prima facie made out from the facts and circumstances of the case. The learned Metropolitan Magistrate has not specifically mentioned as to why offence of IT Act like 65,66 read with Section 378/511 IPC are not made out and which of the ingredient of the said offence/offences is lacking/absent. The submissions of learned counsel for the complainant (revisionist) have also not been mentioned in the impugned order. In my view, learned CR No. 496/2017 L.S. Davar & Co. Vs. State of NCT of Delhi Page No.4 of 5 Metropolitan Magistrate has not passed reasoned order and has not mentioned as to why the said particular offences are not prima facie made out and therefore, impugned order dated 10.07.2017 is set aside. Learned Metropolitan Magistrate/trial court shall hear arguments afresh of learned counsel for the complainant/revisionist and pass order on the application/complaint under Section 156 (3) of the Code. Revisionist/complainant will appear before learned trial court on 07.12.2018. Revision is allowed accordingly.
Announced in the open court on 30.11.2018 (Sanjeev Kumar-II) Additional Session Judge-05, South East District, Saket Courts, New Delhi CR No. 496/2017 L.S. Davar & Co. Vs. State of NCT of Delhi Page No.5 of 5