Adjudications of Cyber Disutes inIndia

7/30/2019 Adjudications of Cyber Disutes inIndia

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ADJUDICATION


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Adjudication of the matters under IT

Act:

Adjudication powers rests on the officer

appointed by Central govt

The authority is quasi-judicial in nature.

The qualifications are to be decided by

central govt.

They have all the powers of that of the

Civil court.


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Sequence of the adjudication process

in IT Act:

Adjudicating officer/ controller.

45 days

Cyber Appellate tribunal .

60 days

Appeal to High court.


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Adjudicating Officer

Section 46 of the IT Act states that an adjudicating officer shallbe adjudging whether a person has committed a contravention ofany of the provisions of the said Act, by holding an inquiry.

Principles of audi alterum partum and natural justice are enshrinedin the said section which stipulates that a reasonable opportunityof making a representation shall be granted to the concernedperson who is alleged to have violated the provisions of the IT

Act.

The said Act stipulates that the inquiry will be carried out in themanner as prescribed by the Central Government

All proceedings before him are deemed to be judicial proceedings,every Adjudicating Officer has all powers conferred on civil courts

Damages 5 cr.


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Enquiry & other procedures-

IT Rules 2003

Qualification & experience of adjudicating

officer & manner of holding enquiry vide

gazette notification G.S.T 220(E) 17 march

2003


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Appointment

By CG

Person not below the rank of director of GOI;or

Equivalent officer of state government

No person shall be appointed as AO unlessexperience of IT, legal, judicial system as

prescribed by CGIf more than 1 AO- jurisdiction will be decided

by CG


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Sec 47

Factors to be taken into account by AO: (a) the amount of gain of unfair advantage,

wherever quantifiable, made as a

result of the default;

(b) the amount of loss caused to any person as

a result of the default;

(c) the repetitive nature of the default


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CYBER REGULATIONS APPELLATE TRIBUNAL

(CRAT)

A Cyber Regulations Appellate Tribunal (CRAT)is to be set up for appeals from the order of

any adjudicating officer. It consists of one

person only- the Presiding Officer.


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CRAT

S. 48. Establishment of Cyber Appellate Tribunal.

(1) The Central Government shall, by notification,

establish one or more appellate tribunals to be

known as the Cyber Regulations AppellateTribunal.

(2) The Central Government shall also specify, in the

notification referred to in subsection (1), thematters and places in relation to which the Cyber

Appellate Tribunal may exercise jurisdiction.


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Composition

Chairperson of the Cyber Appellate Tribunal- 1

Other- members as appointed by CG

In consultation with CJI


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Qualifications & members of CAT

Qualified to be judge of HC Members- by CG from persons having special

knowledge or professional exp. In IT, telicom,

industry, mgmt. consumer affairs. Being additional secretary in CG or SG for 1 yr.

or joint secretary for 7 yers

Judicial members- members of Indian legalservice in post of Add. Secretary for 1 yr or

grade 1 post for 5 yers.


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Term of office & other conditions

Term of five years or until he attains the age ofsixty-five years.

Person does not have any such financial or other

interest as is likely to affect prejudicially hisfunctions as such Chairperson or Member.

shall have to retire from other services beforejoining as such Chairperson or Member.

Powers of superintendence, direction, etc

Distribution of Business among Benches


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Powers of CP

Powers of superintendence, direction, etc

Distribution of Business among Benches. Powers of the Chairperson to transfer cases


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Other provisions Decision by majority

Filling up of vacancies Resignation and removal

by notice in writing under his hand addressed to the CentralGovernment, resign his office:

Provided that the said Presiding officer Chairperson or Member

shall, unless he is permitted by the CG to relinquish his officesooner, continue to hold office till 3 months from the date ofreceipt of notice or until successor appointed.

The Presiding officer Chairperson or Member of a CAT shall not beremoved from his office except by order of CG on the ground ofproved misbehavior or incapacity.(inquiry by judge of SC)

Natural justice will be given

Orders constituting Appellate Tribunal to be final and not toinvalidate its proceedings

Staff of the Cyber Appellate Tribunal


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Appeal to CAT S. 57

Any person aggrieved by an order made by aController or an adjudicating officer under this

Act may prefer an appeal to a Cyber Appellate

Tribunal having jurisdiction in the matter.

Consent of the parties- No appeal.

Appeal within 45 days from the date on

which a copy of the order made by the

Controller or adjudicating officer is received.

Decision within 6 months.


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Procedure and Powers of the Cyber Appellate Tribunal

Not be bound by the procedure laid down by the Code of Civil Procedure,1908.

Regulate its own procedure including the place at which it shall have itssittings.

Powers of civil court as under CPC;

(a)summoning and enforcing the attendance of any person and examininghim on oath;

(b)requiring the discovery and production of documents or otherelectronic records;

(c)receiving evidence on affidavits;

(d)issuing commissions for the examination of witnesses or documents;

(e)reviewing its decisions;

(f)dismissing an application for default or deciding it ex parte;

(g)any other matter which may be prescribed

Every proceeding before the Cyber Appellate Tribunal shall be deemed .tobe a judicial proceeding


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Right to legal representation

Limitation Act Apply

Civil court not to have jurisdiction

Appeal to High court

Disposals

Compounding of Contravention

Recovery of Penalty or compensation


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Facts

The first and the only Cyber Appellate Tribunal in thecountry has been established by the Central

Government in accordance with the provisions

contained under Section 48(1) of the Information

Technology Act, 2000.

The Tribunal initially known as the Cyber Regulations

Appellate Tribunal (C.R.A.T.) started functioning from

October, 2006.

Address: D.I.T. building at C.G.O. Complex, Lodhi

Road, New Delhi.


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Honble Mr. Justice Rajesh Tandon, a retired

Judge of Uttrakhand High Court took the

charge as Presiding Officer of CyberRegulations Appellate Tribunal on February

25,2009.

The Tribunal after the amendment of the ITAct in the year 2008 (which came into effect

on 27.10.2009) is known as the Cyber

Appellate Tribunal (C.A.T.).


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CRAT does not seem to be vested with anyoriginal jurisdiction

Apart from the factual issues that would beraised, the disputes before the CRAT areinvariably going to involve the following legalissues as well:

application of Private International Law (including theissue of "conflict of laws") in case the parties to thedispute belong to different nationalities;

issues regarding jurisdiction; and

application and interpretation of complex contractual,intellectual property and penal laws


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Provided that the court may exercise

jurisdiction in cases where the claim for injury

or damage suffered by any person exceeds the

maximum amount which can be awardedunder this Chapter. ( 2008 amendment )


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Police Powers

A police officer not below the rank of deputysuperintendent of police has the power to enterany public place and arrest any person withoutwarrant if he believes that a cyber crime has beenor is about to be committed.

On being arrested, the accused person must,without any unnecessary delay, be taken or sentto the magistrate having jurisdiction or to theofficer-in-charge of a police station. The

provisions of the Code of Criminal Procedure,1973 shall apply in relation to any entry, search orarrest made by the police officer.

Adjudications of Cyber Disutes inIndia

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