Sathiskumar (Lawyer) 23 March 2009

Urgent sir...Bail Status after Information Technology Act amended on 5th Feb 2009?

Dear all members,

I am a law student in Delhi. I came across a cyber crime case of my old friend Mr. Anand vaibhav. He was arrested under section 67 of Information Technology Act 2000 in Oct 2008 and now out in bail. Bail bond amount was Rs.50000. Trail not yet started. Chargesheet filed. Now that the Information Technology amentment Act 2008 has been passed on 5th Feb 2009 and published in Gazette.

https://www.mit.gov.in/download/it_amendment_act2008.pdf

Punishment for section 67 has been reduced from 5 years to 3 years and now the offence under section 67 is now made bailable offence.

"Section 77 B. Offences with three years imprisonment to be cognizable:

(1) Notwithstanding anything contained in Criminal Procedure Code 1973, the offence punishable with imprisonment of three years and above shall be cognizable and the offence punishable with imprisonment of three years shall be bailable."

Sirs, my doubt is whether Mr. Anand, who is now accused of only bailable offence, can he file a petition to get back his Rs.50000 amount which he paid as bail bond. Will the reduced punishment of three years will be applicable to him?

Please give your views sir. I am waiting for your replies.

Sathiskumar.

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3 Replies

N.K.Assumi (Advocate) 23 March 2009

Clause 2 Section 1 of the Amendment Act says, it shall come into force on such date as the Central Government may, by notification in the Official Gazette.

Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of the provision.

Reading the Amendment,in my view Amendment Act shows that the Amendment act is not retrospective, rather it is prospective. As such your friend can not avail the benefit of the new Amendment Act. Lets see what other members will say on this. But certainly you have raised a very important issues.

Swami Sadashiva Brahmendra Sar (Nil) 27 March 2009

dear mr. sathishkumar !

in this case, rule of beneficial construction is to be applied. though Art. 20(1) of the constitution is not directly applicable, but you may find some cases on this provision to support the argument that accused should not be denied the benefit of reduced punishment. pls chek AIR 1983 SC150 (3 JJ.) and AIR 1966 SC1206(5JJ.) in your favour. but see AIR 2004 SC2608 Dayal singh v. State of Rajsthan that may be against you.

Rohit Sharma (Lawyer) 01 April 2009

Mr.Sathiskumar,

I am a retired Judge from Bhopal. I had read the Information Technology Amendment Act 2008 detailedly. The amendments are RETROSPECTIVE. (Indian Media reported widely that IT act 2000 was amended just to benefit Ebay chief Avnish Bajaj, who was arrested in 2004 under section 67 of IT act 2000. Now with amended act he could come out of the case)

As far as the bail amount is concerned, a petition should be filed in High court citing the amended Act. I strongly feel that the bail amount will be refunded.