Compoundable and Cognizable and Bailable Offences
The literal meaning of compounding is to agree for a consideration not to prosecute (an offence). This falls within the different kinds of offences under IT Act 2000.
Compounding of contravention / offence is a process whereby, the person committing default will file an application to the compounding authority accepting that he/she has committed an offence and so that same should be condoned.
Compound May be divided into two parts
1. Compounding of Contraventions as per section 63 of IT Act 2000.
2. Compounding of Offences
We will discuss Compounding of offences.
There are two kinds of Offences
1. Bailable — Offences which are punishable with imprisonment of three years as bailable one. Defined in section 2 (a) of Criminal Procedure code as those offences which are shown as bailable in the first schedule of the code.
2. Non Bailable – as per 2 (a) of Crpc non bailable offence includes all those offences which are not included in bailable offence in the first schedule. Or the offences which are punishable with death, imprisonment of life or imprisonment for more than seven years.
Compounding of offence regarding IT Act 2000 has been given under section 77 A and 77 B.
Compounding of offences
This means to establish a compromise between two parties, where the complainant agrees to have the charges dropped against the accused.
The general legal provisions relating to compounding of offences are given under Section 320 of the Code of Criminal Procedure, 1973.
Section 77 A :
In case of offences relating to Information Technology, Section 77A provides that a court of competent jurisdiction may compound offences for which less than 3 years imprisonment has been provided under this Act.
What there are exceptions as enumerated under section 77 A.
- The court shall not compound such offence where the accused is, by reason of his previous conviction, liable to either enhanced punishment or to a punishment of a different kind.
- The court shall not compound any offence where such offence affects the socio-economic conditions of the country or has been committed against a child below the age of 18 years or a woman.
- The court shall not compound the offences for which the punishment for life or imprisonment for a term exceeding three years has been provided under this act.
There are certain offences under this act which are non-compoundable as per this provision :
Section 66 F : As punishment is life imprisonment.
Section 67 A , 67 B , 69, 69 A and 70. : As punishment is more than 3 years.
Application for compounding
The person accused of an offence under this Act may file an application for compounding in the court in which offence is pending for trial and the provisions of the Code of Criminal Procedure, 1973 shall apply.
This section provides for applicability of the provisions of section 265 B and 265 C of the Code of criminal Procedure 1973.
Section 77 B :
Offences with three years imprisonment will be bailable
The offences punishable with imprisonment of three years and above shall be cognizable and the offence punishable with imprisonment of three years shall be bailable.
Ajendraprasad vs State
The court refused to grant bail where charges were made under IPC and section 67 of the IT Act 2000. Here suit was filed under sec. 292, 294, 295, 120B, and 420 of IPC and under sec. 5 &9 of the immortal traffic act and under 67 of IT Act alleging:
- That accused hatched a criminal conspiracy for preparation and circulation of compact Disc (CDs) which exposed the misdeeds of the Sadhus of Swaminarayan sect in Swaminarayan temple,
- That sadhus have defamed the religion and exploited women by video graphing sexual acts committed by sadhus on the pretext of performing religious ceremonies,
- That the video CDs have been prepared by the accused persons and they have circulated the same in Ahmedabad and other places for the public.
- Based on the complaint, offences were registered by DCB Police station, Ahmedabad against the persons named there in, and the investigation was started.
Here, no anticipatory bail was granted to the applicant.
Power of Police Officers
Search and Seizure is a procedure used in many civil law and common law legal systems by which police or other authorities and their agents, who, suspecting that a crime has been committed, commence a search of a person’s property and confiscate any relevant evidence found in connection to the crime.
Section 78 : deals with the Investigation of the offences under this act .
Investigation has been defined under section 2 (h) of the Criminal Procedure Code. It includes all the proceedings under the Code of Criminal Procedure 1973.
Investigation of an offence
Under this act shall be conducted by a police officer not below the rank of inspector:
Power to Investigate Offences by a Police Officer under the Act
The aforesaid section has made a police officer not below the rank of Inspector as in charge of investigation of any offence under the Act. The section makes a departure from the Code of criminal Procedure, 1973 which states that in order to investigate:
- Non cognizable offence: police officer is to obtain the order of a Magistrate having power to try such case or commit the case for trial (section 155, Cr.P.C) and
- Cognizable offence: any officer in charge of a police station may proceed without the order of a Magistrate having power to try such case or commit the case for trial (section 156, Cr.P.C)
That is, only a police officer not below the rank of Inspector has the power to investigate cognizable (sections 65-70, 72A) as well as non-cognizable (sections 68, 70B, 71-74, and section 33) offences under the Act.
Steps of Investigation
Case Law :
In the case of In Adri Dharan Das vs State of West Bangal : It has been opined that ,”arrest is a part of the process of investigation and necessary to secure sevral purpose like collection of evidence , recovery of case properties etc and also to disclose various facets of offence like Preparation and Motive.
Power of Search
As per the section 80 of the Act:
Section 80 : Power of police officer and other officers to enter, search, etc.-
- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any police officer, not below the rank of a [Inspector], or any other officer of the Central Government or a State Government authorised by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected or having committed or of committing or of being about to commit any offence under this Act.
Explanation. –For the purposes of this sub-section, the expression “public place includes any public conveyance, any hotel, any shop or any other place intended for use by, or accessible to the public.
Power of Police officer and other Officers to enter , search etc under the Act :
The provision under section 80 (1) provides for any police officer not below the rank of inspector or any other officer of the central or state government authorised by the central government to enter any public place and search and arrest without warrant any person found there in who is reasonably suspected:
- Of having committed, or
- Of committing, or
- Of being about to commit
Section 80(2). Where any person is arrested under sub-section (1) by an officer other than a police officer, such officer shall, without unnecessary delay, take or send the person arrested before a magistrate having jurisdiction in the case or before the officer-in-charge of a police station.
Section 80(3). The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall, subject to the provisions of this section, apply, so far as may be, in relation to any entry, search or arrest, made under this section.
Applicability of the Code of Criminal Procedure
The aforesaid sub-section (3) makes it mandatory that sub-section (1) and (2) of section 80 is to be taken into consideration in relation to any entry, search or arrest, made under this section of the Act.
It is significant to note that the provisions of section 80 shall take precedence over the provisions of the Code of Criminal Procedure, 1973.
Procedure of Search under section 165 Crpc by Police Officer is as follows:
- Whenever an officer in charge of police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.
- A police officer proceeding under Sub-Section (1), shall, if practicable, conduct the search in person.
- If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place.
- The provisions of this Code as to search-warrants and the general provisions as to searches contained in section 100 shall, so far as may be, apply to a search made under this section.
- Copies of any record made under Sub-Section (1) or Sub-Section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance to the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate.