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Compounding of Offences  under ITAA(p)-2005 

...a law for the privileged, by the privileged and to protect the privileged.

 

Under ITA-2000, Compounding of contraventions under Chapter IX had been provided under Section 63. (Please see article Can ITA-2000 Chapter XI Crimes be Compounded?  for more details)

ITAA(p)-2005 (We shall use this abbreviation for the amended act proposed by the "Expert Committee") now redefines the conditions for compounding of offences under Section 80 A. This article examines the details....Naavi


The provisions on compounding under  Section 63 of ITA-2000 were as follows.

Compounding of Contravention

(1) Any contravention under this Act [substituted for "Chapter" vide amendment dated 19/09/2002] may, either before or after the institution of adjudication proceedings, be compounded by the Controller or such other officer as may be specially authorised by him in this behalf or by the adjudicating officer, as the case may be, subject to such conditions as the Controller or such other officer or the adjudicating officer may specify:

Provided that such sum shall not, in any case, exceed the maximum amount of the penalty which may be imposed under this Act for the contravention so compounded.

(2) Nothing in sub-section (1) shall apply to a person who commits the same or similar contravention within a period of three years from the date on which the first contravention, committed by him, was compounded.

Explanation - For the purposes of this sub-section, any second or subsequent contravention committed after the expiry of a period of three years from the date on which the contravention was previously compounded shall be deemed to be a first contravention.

(3)Where any contravention has been compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the person guilty of such contravention in respect of the contravention so compounded.

The above provisions clearly mentioned that the Compounding could be done either "before or After the institution of Adjudication". Since Adjudication was available only for Chapter IX contraventions, it could be easily inferred that the Compounding referred only to such contraventions. It could not be extended to Chapter XI offences. It was appropriate that the clause was available in Chapter X after Chapter IX and before Chapter XI. For the same reason it was consistent to think of Compounding powers being conferred on the Controller.

In the proposed amendments, section 80 A is proposed to address the issue of Compounding and states as under. This section has been placed now under Chapter XIII after chapters IX and XI.

It states as follows.

80A. Compounding of Certain Offenses 

(1) Notwithstanding  any thing contained in the Code of Criminal Procedures, 1973, any offense punishable under this Act  may either before or after the institution of any prosecution be compounded by  

(a)   the Controller; or

(b)   the adjudicating officers appointed under section 46, where the maximum amount of fine and/or imprisonment does not exceed such limits as may be specified by the Central Government.   

on payment or credit to the Central Government of such sum as the Controller or the Adjudicating officer, as the case may be, may specify. 

(2) Nothing in sub-section (1) shall apply to an offence committed by a person within a period of three years from the date on which a similar offence committed by him was compounded under this section. 

Explanation: For the purpose of this section  

any second or subsequent offence committed after the expiry of a period of three years from the date on which the offence was previously compounded, shall be deemed to be a first offence. 

(3) Where any offence is compounded before the institution of any prosecution, no prosecution shall be instituted in relation to such offence, either by the Controller or by the adjudication officer or by any other person, against the offender in relation to whom the offence is so compounded. 

(4) Where the composition of any offence is made after the institution of any prosecution, such composition shall be brought by the Controller or the adjudicating officer in writing, to the notice to the Court in which the prosecution is pending and on such notice of the composition of the offence being given, the person in relation to whom the offence is so compounded shall be discharged.

This narration states that Compounding can be instituted either before or after prosecution. Though both the earlier version and the present version use the term "Act" (For any offence or contravention) it may be noted that the earlier version referred to contravention and the present version refers to offence. Also the current version talks of Criminal Procedure Code and Prosecution. All this with the placement of the section in Chapter XIII clearly indicates that Compounding is permitted even for criminal offences.

It may be noted that the proposed section clearly mentions that even if prosecution is before a Court, once the adjudicator or the controller decides on compounding of the offence and such notice of composition is given to the Court the person accused shall be discharged.

It is clear that the Court does not even have the power to refuse composition since its permission is not required for the composition even in cases pending before it.

This means that any accused can escape conviction through the composition process which will be handled by the adjudicator or the controller. It is pertinent to also note that both the adjudicator and the controller are bureaucrats directly associated with the Ministry of Communication and Information Technology. This places the executive power on a higher pedestal than  than judicial power.

It does not require great intelligence to understand that this provision has been inserted only to bail out an executive in a case which is already with the Court. Is there a greater evidence required to say that this proposed amendment exercise is a fraud on the society?

We would have appreciated if the Ministry had granted a Presidential pardon to privileged individuals from any Cyber Crime  rather than twist the law to suit one individual.

Now that many other offences are available for which fines can be upto 25 lakhs the "Power to Compound" should be a juicy power for the executives to discharge sine it does not come under easy judicial scrutiny. ( It is not clear if the compounding can be challenged in a court of law).

If this proposition becomes a law, the Cyber Crime Prevention becomes a huge store house of corruption working around the provisions of Section 80 A.

Naavi

August 31, 2005