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"27. Applying the aforesaid principles to the facts involved in the case, perusal of the complaint would reveal that the allegations relate to the use of the data code by the employees of the complainant company by accessing the Code and stealing the said data by using the computer source code. The Act of accessing or securing access to computer/computer system or computer network or computer resources by any person without permission of the owner or any person who is in charge of the computer, computer system, computer network or downloading of any such data or information from computer in a similar manner falls within the purview of Section 43 of the Information Technology Act, 2000. When such Act is done dishonestly and fraudulently it would attract the punishment under Section 66 of the Information Technology Act, such Act being held to be an offence. The ingredients of dishonesty and fraudulently are the same which are present if the person is charged with Section 420 of the Penal Code, 1860. The offence of Section 379 in terms of technology is also covered under Section 43. Further, as far as Section 408 is concerned which relates to criminal breach of trust, by a clerk or servant who is entrusted in such capacity with the property or with any dominion over property, would also fall within the purview of Section 43 would intents to 7 Cri. Appln. 2562-2019-FB-Ref cover any act of accessing a computer by a person without permission of the owner or a person in charge of computer and/or stealing of any data, computer data base or any information from such computer or a computer system including information or data held or stored in any removable storage medium and if it is done with fraudulent and dishonest intention then it amounts to an offence. The ingredients of an offences under which are attracted by invoking and applying the Section 420, 408, 379 of the Indian Penal Code are covered by Section 66 of the Information Technology Act, 2000 and prosecuting the petitioners under the both Indian Penal Code, 1860 and Information Technology Act would be a brazen violation of protection against double jeopardy.
Submissions :
13. Learned advocates for the applicants would argue that the provisions of IPC cannot be invoked when provisions of the IT Act are 9 Cri. Appln. 2562-2019-FB-Ref applicable. They would rely upon Supreme Court's decision in Sharat Babu Digumarti (supra) to submit that when the special provisions, which have a superior effect, encompass a criminal act and the offender, the latter is exempted from the Indian Penal Code. The legal principle is clear; a special law will take precedence over the general and earlier laws. Further, relying on the decision of this Court in Gagan Harsh Sharma (supra) they would submit that the unauthorized access or securing access to computer/computer system or computer network or computer resources by any person without permission of the owner or any person who is in charge of the computer, computer system, computer network or downloading of any such data or information from computer is covered by section 43 of the IT Act. If such acts are conducted with dishonest and fraudulent intentions, they become punishable by invoking section 66 of the IT Act. Additionally, the technological equivalent of the offence under section 379 is also covered by section 43 of IT Act. Moreover, section 408, which deals with criminal breach of trust by an entrusted clerk or servant, falls under the ambit of section 43 of IT Act. Any act of accessing a computer by a person without permission of the owner or a person in charge of computer and/or stealing of any data, computer data base or any information from such computer or a computer system including information or data held or stored in any removable storage medium, if done with fraudulent and dishonest intent, constitutes an offence 10 Cri. Appln. 2562-2019-FB-Ref invoking greater punishment in view of section 66 of IT Act. The ingredients of offences under sections 420, 408, and 379 of the Indian Penal Code are subsumed under section 66 of the IT Act. Therefore, prosecuting individuals under both, the Indian Penal Code and the IT Act for the same offence would contravene the legal protection against double jeopardy. In situations where the Information Technology Act provides a specific framework for addressing offences applicable of provisions of the Indian Penal Code to the same facts is unsustainable.

Analysis :

18. As can be understood, section 43 makes various acts punishable wherein a person without permission of the owner or any 13 Cri. Appln. 2562-2019-FB-Ref other person incharge of the computer, computer system or computer network either accesses, downloads or introduces virus or damages the computer, computer system network data or creates disruption or refuses access, destroys or deletes the information or steals, conceals or alters the computer source code.