Extra-Territorial Reach, Confiscation and Compounding

In one line

The Act reaches conduct anywhere in the world where a computer located in India is involved, equipment used in a contravention is liable to confiscation, nothing under this Act bars punishment under another, offences carrying up to three years may be compounded except in three cases, and offences of three years and above are cognizable while those of exactly three years are bailable.

In the wording a student can write in an exam: by section 75 of the Information Technology Act, 2000 the provisions of the Act apply also to an offence or contravention committed outside India by any person irrespective of his nationality, if the act or conduct constituting it involves a computer, computer system or computer network located in India.

Section 75, conduct outside India

Sub-section (1). Subject to sub-section (2), the Act applies also to any offence or contravention committed outside India by any person irrespective of his nationality.

Sub-section (2), the connecting factor. The Act applies to such an offence or contravention if the act or conduct constituting it involves a computer, computer system or computer network located in India.

So there are two limbs and they must be read together. Sub-section (1) states a universal reach and sub-section (2) confines it. Nationality is irrelevant; the location of the machine is everything.

Compare section 1(2), which says the Act applies to an offence or contravention committed outside India by any person, "save as otherwise provided in this Act". Section 75 is that provision: it supplies the condition.

And compare section 1(5)(c) of the Bharatiya Nyaya Sanhita, 2023, which extends that Sanhita to any person anywhere committing an offence targeting a computer resource located in India. The two are deliberately parallel, and the Module I chapter on extent works the Sanhita's limb through.

Section 76, confiscation

What may be confiscated. Any computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, in respect of which any provision of the Act, rules, orders or regulations has been or is being contravened.

The proviso, for the innocent holder. Where it is established to the satisfaction of the court adjudicating the confiscation that the person in whose possession, power or control the thing is found is not responsible for the contravention, the court may, instead of confiscating, make such other order authorised by this Act against the person contravening as it thinks fit.

Note two things. Confiscation attaches to conduct that "has been or is being" contravened, so a continuing contravention is enough; and the proviso protects the holder, not the owner, and only where he is not responsible.

And the list is dated. Floppies, compact disks and tape drives are named because the section was written in 2000; "any other accessories related thereto" is what carries a modern device.