Information Technology Act Section 46 — Power to adjudicate

CHAPTER IX 5[PENALTIES, COMPENSATION AND ADJUDICATION]

Cyber Law

Summary

Sub-section (1) says that to decide whether a person has broken any provision of this Act or its rules, regulations, directions, or orders (which would make that person liable to pay a penalty or compensation), the Central Government must appoint an officer to act as an adjudicating officer. This officer must be at least a Director to the Government of India or an equivalent officer of a State Government. The appointment is subject to sub-section (3), and the officer will hold an inquiry in the manner prescribed by the Central Government.

Sub-section (1A) says that the adjudicating officer appointed under sub-section (1) can only handle matters where the claim for injury or damage does not exceed rupees five crore. If the claim for injury or damage is more than rupees five crore, the jurisdiction lies with the competent court.

Sub-section (2) says that the adjudicating officer must first give the person concerned a reasonable opportunity to make a representation in the matter. After holding the inquiry, if the officer is satisfied that the person has committed the contravention, the officer may impose a penalty or award compensation as the officer thinks fit, in accordance with the provisions of that section.

Sub-section (3) says that no person can be appointed as an adjudicating officer unless that person has the experience in the field of Information Technology and the legal or judicial experience that the Central Government prescribes.

Sub-section (4) says that if more than one adjudicating officer is appointed, the Central Government must specify by order the matters and places with respect to which each officer will exercise their jurisdiction.

Sub-section (5) says that every adjudicating officer has the powers of a civil court that are conferred on the Appellate Tribunal under sub-section (2) of section 58. Under clause (a), all proceedings before the officer are deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code. Under clause (b), the officer is deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973. Under clause (c), the officer is deemed to be a civil court for the purposes of Order XXI of the Civil Procedure Code, 1908.

Official Text

(1) For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, 1[direction or order made thereunder which renders him liable to pay penalty or compensation,] the Central Government shall, subject to the provisions of sub-section (3), appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer for holding an inquiry in the manner prescribed by the Central Government. 2[

(1A) The adjudicating officer appointed under sub-section (1) shall exercise jurisdiction to adjudicate matters in which the claim for injury or damage does not exceed rupees five crore:

Provided that the jurisdiction in respect of the claim for injury or damage exceeding rupees five crores shall vest with the competent court.]

(2) The adjudicating officer shall, after giving the person referred to in sub-section (1) a reasonable opportunity for making representation in the matter and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty or award such compensation as he thinks fit in accordance with the provisions of that section.

(3) No person shall be appointed as an adjudicating officer unless he possesses such experience in the field of Information Technology and legal or judicial experience as may be prescribed by the Central Government.

(4) Where more than one adjudicating officers are appointed, the Central Government shall specify by order the matters and places with respect to which such officers shall exercise their jurisdiction.

(5) Every adjudicating officer shall have the powers of a civil court which are conferred on the ―Appellate Tribunal‖ under sub-section (2) of section 58, and–

(a) all proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860);

(b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974); 1[

(c) shall be deemed to be a civil court for purposes of Order XXI of the Civil Procedure Code, 1908 (5 of 1908).]