49. Computer Crime. For the purpose of this Act, any person who commits any of the following acts is guilty of an offense of computer crime:

(a) Intentionally accesses, damages or conceals, or attempts to access, damage or conceal, temporarily or permanently, any computer data base, computer, information system or computer network, without permission from the owner, in order to either:

(i) wrongfully control, obtain, make use of or prevent others from deriving the benefits of money, property, data or electronic records;

(ii) copy or destroy any data or electronic records;

(iii) use or disrupt any functions of computers, computer networks or information systems; or

(iv) commit any act that is an offense under the Indian Penal Code.

(b) Knowingly, and with the intent to defraud, obtains or attempts to obtain any computer services by false representation, false statement or unauthorized charging to the account of another, by installing or tampering with any facilities or equipment, or by any other means.

(c) Intentionally or recklessly introduces or allows the introduction of any computer virus into any computer, computer system or computer network without permission of the owner.

Comments: This section provides for the enumeration of various acts that shall be considered computer crimes. Fundamental to the approach taken in this section is the recognition that the Indian Penal Code, 1860 already enumerates a wide variety of crimes that include acts committed through or in connection with computers. For, example, the Indian Penal Code covers all acts of larceny, without any limitations regarding the means by which the larceny is committed. If the larceny takes the form of manually stealing goods from a store or stealing money from a remote bank account through use of a computer, the law treats either act as the same for purposes of classification as larceny. Thus, the fact that a crime is committed by computer does not limit the applicability of the Indian Penal Code in most instances. This section, therefore, does not attempt to identify all criminal acts involving computers, at least in instances where such acts already would be considered crimes under the Indian Penal Code. Instead, this section merely acknowledges that any act that is considered criminal under the Penal Code may also be called a computer crime when computers are involved.

In addition, this section specifies certain acts as computer crimes when the Indian Penal Code appears not to apply. In particular, the introduction of viruses into computers and the appropriation or disruption of computer services are unique to the computer environment and do not appear to be covered by the Penal Code. It can be argued that the use of fraud in obtaining computer services could be covered by the Penal Code; however, to the extent that intangible "goods" are being received or altered or the means of access to the services is through cyberspace, the applicability of the Penal Code is unclear. Similarly, although this section makes criminal the act of interfering with another’s rights to money or property, which if in a tangible form could be covered by the Penal Code, the advent of cybercash and digital property require new computer crimes to be established. Additionally, the unauthorized copying, controlling or damaging of intangible goods (data, electronic records) appears to be beyond the scope of the Penal Code and, therefore, a provision regarding these acts has been incorporated into this section.

50. Penalities

(a) Any person who commits the offense of computer crime as set forth in the provisions of Section 49(a) of this Act is punishable as follows:

(i) For the first offense that does not result in damage, by imprisonment up to 1 year or by a fine not to exceed Rs. 1,00,000 or both;

(ii) For second or subsequent offenses, or in cases where damage occurs, by imprisonment up to three years or by a fine up to Rs. 2,00,000, or by both, and if government or public property is injured, by imprisonment up to three years or by a fine up to Rs. 5,00,000 or both;

(b) Any person who commits offense as under Section 49(b) of this Act shall be punishable as follows:

(i) For the first offense which does not result in damage, and where the value of the computer services used does not exceed Rs. 10,000, by a fine not exceeding Rs. 1,00,000, or by imprisonment not exceeding one year, or by both.

(ii) For any offense which results in damage of an amount greater than Rs. 1,00,000 or in an damage, or if the value of the computer services used exceeds Rs. 10,000, or for any second or subsequent violation, by a fine not exceeding Rs. 2,00,000, or by imprisonment up to three years, or by both.

(c) Any person who commits offense as per Section 49(c) of this Act is punishable as follows:

(i) For a first offense which does not result in damage, an infraction punishable by a fine not exceeding Rs. 10,000.

(ii) For any offense which results in damage in an amount not greater than Rs. 50,000, or for a second or subsequent violation, by a fine not exceeding Rs. 1,00,000 or by imprisonment not exceeding one year, or by both.

(iii) For any offense which results in damage in an amount greater than Rs. 50,000, by a fine not exceeding Rs. 2,00,000, or by imprisonment up to three years, or by both.

(d) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offenses under this Act shall be bailable, nonrecognizable, and triable exclusively by the Chief Metropolitan Magistrate, Additional Chief Metropolitan Magistrate, Chief Judicial Magistrate or Additional Chief Judicial Magistrate.

Comments: This section provides criminal penalties for the offenses enumerated in Section 49. Some leniency was provided in cases of first offenses where no damage occurred as a result of the criminal act. On the other hand, additional fines were imposed in cases where governmental or public property is damaged. As indicated in the commentary to Section 49, the Indian Penal Code already provides for penalties in the case of many criminal acts without regard to whether a computer is involved. Therefore, this section specifies that nothing in this Act should be construed to abrogate any penalties that may be applicable under the Penal Code.

51. Forfeiture.

(a) Any person who commits the offense of computer crime as set forth in Section 49 of this Act shall forfeit, according to the provisions of this section, any monies, profits or proceeds, and any interest or property which the sentencing court determines he has acquired or maintained, directly or indirectly, in whole or in part, as a result of such offense. Such person shall also forfeit any interest in, security, claim against or contractual right of any kind which affords him a source of influence over any enterprise which he has established, operated, controlled, conducted or participated in conducting, where his relationship to or connection with any such thing or activity directly or indirectly, in whole or in part, is traceable to any item or benefit which he has obtained or acquired through computer fraud.

(b) Any computer, computer system, computer network or any software or data, owned by such person, which is used during the commission of any public offense described in Section 49 or any computer, owned by the person, which is used as a repository for the storage of software or data illegally obtained in violation of Section 49 shall be subject to forfeiture under orders of the Court ordering his conviction.