Cyber Offences Outside the IT Act

In one line

Where conduct in electronic form is covered by the Information Technology Act, section 81 gives that Act priority; where it is not, the general penal law applies unchanged, and a good answer says which and why.

In the wording a student can write in an exam: by section 81 of the Information Technology Act, 2000 the provisions of that Act have effect notwithstanding anything inconsistent contained in any other law for the time being in force, and in Sharat Babu Digumarti v. Govt. (NCT of Delhi), (2017) 2 SCC 18, the Supreme Court held that where an offence relates to an electronic record the Act, being a special law, prevails over the general provision in the Penal Code.

The rule, and the two questions it produces

The rule is section 81 read with Sharat Babu Digumarti. For an electronic record, the special Act governs where it covers the ground. The case is worked in full in the chapter on obscenity in electronic form.

Question one: does the Act cover this conduct at all? If it does not, the general law applies without any difficulty, because there is nothing inconsistent for section 81 to override.

Question two: is the general provision inconsistent with the special one? Section 81 speaks of inconsistency. Where the two can stand together, both may apply, and section 77 confirms that relief under this Act does not bar punishment under another.

What the Act does not reach

Threats and intimidation. There is no offence in this Act of threatening a person electronically. Criminal intimidation in the Sanhita applies, and it is not confined by medium.

Stalking and harassment. Since section 66A was omitted, the Act has nothing general. Stalking, including monitoring a woman's use of the internet, email or any other form of electronic communication, is an offence under the Sanhita, and it is the provision to name.

Defamation. The Act contains no offence of defamation. The Sanhita's provision applies to imputation by words spoken or intended to be read, which covers a post.

Extortion and blackmail. Demanding money under threat of releasing images or data is extortion under the Sanhita; the capture or publication of a private image is separately section 66E of this Act.

Forgery of a document. Making a false electronic record with intent to cause damage or injury is forgery under the Sanhita, whose definition of "document" includes an electronic record.

Theft of money by electronic transfer. Cheating under the Sanhita, with section 66D of this Act where personation was used and section 66 where a section 43 act was done dishonestly.

Offences against children and women in the wider sense. The dedicated statutes apply, and section 67B of this Act sits alongside them.