INFORMATION TECHNOLOGY ACT, 200021

CYBER

APPELLATE

TRIBUNAL

SUBMITTED TO: SUBIMTTED BY:Dr. Amita Verma Harkiran Singh Brar 87/10 Xth Semester Section B Acknowledgement

I owe a great many thanks to a great many people who helped and supported me during the writing of this project.My deepest thanks to my Information Technology Laws Lecturer, Dr. Amita Verma, the Guide of the project for guiding me and correcting various documents of mine with attention and care. She has taken pain to go through the project and make necessary corrections as and when needed.I would also thank my Institution and my faculty members without whom this project would have been a distant reality. I also extend my heartfelt thanks to my family and well-wishers.

Table of Contents

THE CYBER APPELLATE TRIBUNAL448. Establishment of Cyber Appellate Tribunal449. Composition of Cyber Appellate Tribunal550. Qualifications for appointment as Chairperson and Members the Cyber Appellate Tribunal651. Term of office, conditions of service, etc. of Chairperson and Members652. Salary, allowances and other terms and conditions of service of Chairperson and Members.752A. Powers of superintendence, direction, etc.852B. Distribution of Business among Benches852C. Powers of the Chairperson to transfer cases852D. Decision by majority953. Filling up of vacancies954. Resignation and removal955. Orders constituting Appellate Tribunal to be final and not to invalidate its proceedings1056. Staff of the Cyber Appellate Tribunal1157. Appeal to Cyber Appellate Tribunal1258. Procedure and powers of the Cyber Appellate Tribunal1559. Right to legal representation1960. Limitation1961. Civil court not to have jurisdiction1962. Appeal to High Court2063. Compounding of contraventions2264. Recovery of penalty and compensation23Bibliography25

THE CYBER APPELLATE TRIBUNAL

The Act has established the Cyber Appellate Tribunal having appellate jurisdiction. Being an appellate authority is entitled to exercise its appellate jurisdiction both on fact as also in law over a decision or order passed by the Controller of Certifying Authorities or the Adjudicating Officer. Its power to examine the correctness, legality or propriety of the decision or order passed the Controller of Certifying Authorities or the Adjudicating Officer is absolute.[footnoteRef:1] [1: SHARMA, VAKUL. Information Technology. p.140.]

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 Appellate Tribunal.[footnoteRef:2] [2: Ibid.]

Though the aforesaid sub-section (1) provides for appointment of one or appellate tribunals by the Central Government but the language of the rule 13 the Cyber Regulations Tribunal (Procedure) Rules, 2000 makes it clear that shall only be one tribunal and it shall ordinarily hold its sittings at New Delhi.[footnoteRef:3] [3: Ibid.]

The aforesaid rule has further provided a lot of flexibility to Cyber Appellate Tribunal as far as its sittings are concerned. That is, if at any time, Chairperson of the Tribunal is satisfied that circumstances exist which rem necessary to have sittings of the Tribunal at any place other than New Delhi Chairperson may direct to hold the sittings at any such appropriate place.[footnoteRef:4] [4: Ibid.]

It is for the Chairperson to exercise this 'rule of sittings' in a most appropriate and judicious manner. The Tribunal shall notify to the parties the date and place of hearing of the application (Rule 12).[footnoteRef:5] [5: Ibid.]

(2) The Central Government shall also specify, in the notification to in sub-section (1), the matters and places in relation to which the Appellate Tribunal may exercise jurisdiction.[footnoteRef:6] [6: Id. at 141.]

It is for the Central Government to specify by order the matters and places in to which the Cyber Appellate Tribunal may exercise jurisdiction.[footnoteRef:7] [7: Ibid.]

It was held by the Supreme Court in Union of India v. Paras Laminates (P) Ltd.[footnoteRef:8] [8: (1990) 4 SCC 453.]

There is no doubt that the Tribunal functions as a court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary which are necessary to make fully effective the express grant of statutory powers.[footnoteRef:9] [9: Supra Note 7.]

The powers of the Tribunal are no doubt limited. Its area of jurisdiction is defined, but within the bounds of its jurisdiction, it has all the powers and impliedly granted".[footnoteRef:10] [10: Ibid.]

In view of exercising its incidental and ancillary powers, the Cyber Appellate has directed the Adjudicating Officer of the State of Maharashtra to take congnizance of the complaint filed by an ICICI account holder, who has alleged fraud has been committed. Hon'ble Justice Rajesh Tandon, the Chairperson of the Tribunal opined: "In view of the complaint, I direct the Secretary (IT), .....to look into the matter and pass appropriate orders after hearing both the parties. However, liberty is given to approach this Tribunal in case no action is taken by any of the Authorities by filing a proper appeal before this Tribunal".[footnoteRef:11] [11: Ibid.]

Interestingly, though the Act was enacted in the year 2000, but the Cyber to Tribunal came into existence only in 2006. Litigants were not approaching the Adjudicating Officers, probably due to ignorance of this route of law. This lack of judicial work before Adjudicating Officers probably did not inspire earlier setting up of the Tribunal. Even after setting up of the Tribunal, so 9 appeals have been admitted.[footnoteRef:12] [12: Ibid.]

49. Composition of Cyber Appellate Tribunal

The Cyber Appellate shall consist of a Chairperson and such number of other members, as the Central Government may, by notification in the Official Gazette, appoint:Provided that the person appointed as the Presiding Officer of the Cyber Appellate Tribunal under the provisions of this Act immediately before the commencement of the Information Technology (Amendment) 2008 shall be deemed to have been appointed as the Chairperson of the said Cyber Appellate Tribunal under the provisions of this amended by the Information Technology.[footnoteRef:13] [13: Id. at pp. 141-142.]

A Cyber Appellate Tribunal consists of a Chairperson and such number of other Members, as the Central Government may notify. The appellate tribunal now completely revamped into a multi-member set up, which is in fact in with the current legislative policy of constituting multi-member Tribunals wherever Special Acts have been legislated.[footnoteRef:14] [14: Ibid.]

50. Qualifications for appointment as Chairperson and Members the Cyber Appellate Tribunal

(1) A person shall not be qualified for appointment as a Chairperson of the Cyber Appellate Tribunal he is, or has been, or is qualified to be, a Judge of a High Court.[footnoteRef:15] [15: Id. at p. 142.]

(2) The Members of the Cyber Appellate Tribunal, except the Judicial Member to be appointed under sub-section (3), shall be appointed Central Government from amongst persons, having special knowledge and professional experience in, information technology telecommunication, industry, and management or consumer affairs: Provided that a person shall not be appointed as a Member, unless he is, or has been, in the service of the Central Government or a Government, and has held the post of Additional secretary to Government of India or any equivalent post in the Central Gove or State Government for a period of not less than one year or secretary to the Government of India or any equivalent post in Central Government or State Government for a period of not less seven years.[footnoteRef:16] [16: Ibid.]

(3) The Judicial Members of the Cyber Appellate Tribunal shall be appointed by the Central Government from amongst persons who has been a member of the Indian Legal Service and has held the Additional Secretary for a period of not less than one year or Grade I of that service for a period of not less than five years.[footnoteRef:17] [17: Ibid.]

The aforesaid section identifies the qualifications necessary for appointment as Chairperson of the Cyber Appellate Tribunal. It is important to note focus is primarily on the legal rather than on technical qualifications. Thus, the tribunal ought to be doubly careful while interfering with the Controller or the Adjudicating Officer's findings on facts.[footnoteRef:18] [18: Ibid.]

51. Term of office, conditions of service, etc. of Chairperson and Members

(1) The Chairperson or Member of the Cyber Appellate shall hold office for a term of five years from the date on which upon his office or until he attains the age of sixty-five years, is earlier.[footnoteRef:19] [19: Id. at p. 143.]

The Aforesaid sub-section (1) provides a five-year term for the Chairperson or member of the Cyber Appellate Tribunal. The term starts from the date on be enters upon his office. It will last for five years or until he attains the sixty-five years, whichever is earlier.[footnoteRef:20] [20: Ibid.]

(2) Before appointing any person as the Chairperson or Member of the Appellate Tribunal, the Central Government shall satisfy itself that the person does not have any such financial or other interest as is likely to affect prejudicially his functions as such Chairperson or Member.[footnoteRef:21] [21: Ibid.]

(3) An officer of the Central Government or State Government on his selection as the Chairperson or Member of the Cyber Appellate Tribunal, case may be, shall have to retire from service before joining as such Chairperson or Member.[footnoteRef:22] [22: Ibid.]

The aforesaid sub-section(s) provide that the Central Government to perform a due diligence exercise to satisfy itself that the person does not have any such financial or other interest as is likely to affect prejudicially his functions as such Chairperson or Member. Further, it is mandatory that an officer of the Government or State Government on his selection as the Chairperson or Member of the Cyber Appellate Tribunal must retire from service before joining as such Chairperson or Member. This is in a way to inculcate judicial impartiality as such on Chairperson or Member.[footnoteRef:23] [23: Ibid.]

52. Salary, allowances and other terms and conditions of service of Chairperson and Members.

The salary and allowances payable to, and other terms and conditions of service including pension, gratuity and retirement benefits of, the Chairperson or a Member of the Cyber to Tribunal shall be such as may be prescribed:[footnoteRef:24] [24: Ibid.]

The aforesaid section provides the salary and allowances payable to, and the terms and conditions of service including pension, gratuity and other retirement benefits of the Chairperson or a Member of the Cyber Appellate as prescribed under the existing law.[footnoteRef:25] [25: Ibid.]

Under section 87(2)(r) of the Act, the Central Government has the power to rules regarding the salary, allowances and the other terms and conditions of service of the Chairperson or a Member.[footnoteRef:26] [26: Ibid.]

The Central Government has notified the Cyber Regulations Appellate Tribunal (Salary, Allowances, and other terms and conditions of service of Presiding Officer) Rules, 2003. Under rule 3 of the aforesaid notification the Presiding Offices shall be paid such salary and allowances, as admissible to a Secretary to the Government of India, including all the benefits that a Secretary is entitled to.[footnoteRef:27] [27: Id. at p. 144.]

52A. Powers of superintendence, direction, etc.

The Chairperson of the Cyber Appellate Tribunal shall have powers of general superintendence and directions in the conduct of the affairs of that Tribunal and he shall, in addition to presiding over the meetings of Tribunal, exercise and discharge such powers and functions of Tribunal as may be prescribed.[footnoteRef:28] [28: Ibid.]

The Chairperson being the Head of the Cyber Appellate Tribunal has both executive and administrative powers of general superintendence and directions in the conduct of the affairs of the Tribunal, which may include presiding the meetings of the Tribunal, exercise and discharge such powers and of the Tribunal as may be prescribed.[footnoteRef:29] [29: Ibid.]

52B. Distribution of Business among Benches

Where Benches constituted, the Chairperson of the Cyber Appellate Tribunal may, by order distribute the business of that Tribunal amongst the Benches and also the matters to be dealt with by each Bench.[footnoteRef:30] [30: Ibid.]

The aforesaid section refers to an administrative function, i.e., distribution business among Benches. It shall be the prerogative of the Chairperson to distribute the business amongst the Benches and also the matters to be dealt by each Bench.[footnoteRef:31] [31: Ibid.]

This provision may become useful in the coming years with the increase in litigation and more and more appeals coming before the Cyber Appellate Tribunal.[footnoteRef:32] [32: Ibid.]

52C. Powers of the Chairperson to transfer cases

On the application of any of the parties and after notice to the parties, and after hearing of them as he may deem proper to be heard, or suo motu without notice, the Chairperson of the Cyber Appellate Tribunal may transfer any case pending before one Bench, for disposal to any other Bench.[footnoteRef:33] [33: Ibid.]

The aforesaid section refers to a judicial function, i.e., power of Chairperson to transfer cases after either following the laid down procedure or suo moto may transfer any case pending before one Bench, for disposal to other Bench.[footnoteRef:34] [34: Ibid.]

52D. Decision by majority

If the Members of a Bench consisting of two Members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson of Cyber Appellate Tribunal who shall hear the point or points himself and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.[footnoteRef:35] [35: Id. at pp. 144-145.]

The aforesaid section advocates the rule decision by majority. This section also refers to Constitution of a larger Bench, if the Members of a Bench consisting of two Members differ in opinion on any point. It shall be the prerogative of the Chairperson to constitute such larger Bench. The larger Bench shall be headed by the Chairperson and consists of Members, including those who first heard it.[footnoteRef:36] [36: Id. at p. 145.]

53. Filling up of vacancies

If, for reason other than temporary absence, any vacancy occurs in the office of the Chairperson or Member, as the case may be of a Cyber Appellate Tribunal, then the Central Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Cyber Appellate Tribunal from the stage at which the vacancy is filled.[footnoteRef:37] [37: Ibid.]

Being the first stage of appeal, the office of the Chairperson or Member, as the case may be of a Cyber Appellate Tribunal is an important one. The aforesaid directs the Central Government to appoint another person in case of occurrence of any vacancy in the office of the Presiding Officer in accordance with the provisions of this Act.[footnoteRef:38] [38: Ibid.]

The objective behind filling up of vacancies, that could be of the Presiding Officer, Registrar or any other officer, is to maintain the continuity of the appellate process' that begins with the filing of application to the Registrar of Appellate Tribunal [Rule 3, Cyber Regulations Tribunal (Procedure) 2000].[footnoteRef:39] [39: Ibid.]

54. Resignation and removal

(1) The Chairperson or the Member of Cyber Appellate Tribunal may, by notice in writing under his hand addressed to the Central Government, resign his office: Provided that the said Chairperson or the Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is earliest.[footnoteRef:40] [40: Ibid.]

The aforesaid sub-section (1) provides the mechanism of resignation by the person or the Member of a Cyber Appellate Tribunal. He has to give a notice in writing under his hand to the Central Government.[footnoteRef:41] [41: Ibid.]

It is for the Central Government to relieve him on the receipt of such notice, or permit him to continue, to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is earliest.[footnoteRef:42] [42: Id. at p. 146.]

(2) The Chairperson or a Member of a Cyber Appellate Tribunal shall not be removed from his office except by an order by the Central Government on the ground of proved misbehaviour or incapacity after an inquiry made by a Judge of the Supreme Court in which the Chairperson or a Member concerned has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges.[footnoteRef:43] [43: Ibid.]

In order to remove the Chairperson or the Member of a Cyber Appellate Tribunal on the ground of misbehaviour or incapacity, the Central Government is to institute an inquiry under a Judge of the Supreme Court. During the course of inquiry proceedings, the concerned Chairperson or a Member has to be given a reasonable opportunity of being heard in respect of said charges. The Central Government has to accept the findings and recommendations of the Judge holding the inquiry and act accordingly. Rules 3, 4 & 5 of the Cyber Regulations Appellate Tribunal (Procedure for Investigation of Misbehaviour or Incapacity of Presiding Officer) Rules, 2003 have laid down the formal procedure investigation of complaints and conduct of inquiry by a Judge of the Supreme Court.[footnoteRef:44] [44: Ibid.]

(3) The Central Government may, by rules, regulate the procedure for the investigation of misbehaviour or incapacity of the aforesaid Chairperson or a Member.[footnoteRef:45] [45: Ibid.]

Under section 87(2)(s) of the Act, the Central Government has the power to make rules regarding the procedure for investigation of misbehaviour or incapacity of the Chairperson or a Member.[footnoteRef:46] [46: Ibid.]

55. Orders constituting Appellate Tribunal to be final and not to invalidate its proceedings

No order of the Central Government appointing any person as the Chairperson or Member of a Cyber Appellate Tribunal shall be called in question in any manner and no act or proceeding before a Cyber Appellate Tribunal shall be called in question in any manner on the ground merely of any defect in the constitution of a Cyber Appellate Tribunal.[footnoteRef:47] [47: Ibid.]

The aforesaid section takes away the power of judicial review by giving the Central Government a carte blanche to appoint any person as the Chairperson or of Member of a Cyber Appellate Tribunal, without being questioned in any manner. It is considered a privilege of the Executive to appoint any person as the Presiding Officer of a Cyber Appellate Tribunal. It calls for judicial restraint, if not judicial deference, to judgment of the Executive.[footnoteRef:48] [48: Id. at p. 147.]

It is important for the Central Government (Executive) to observe the spirit law by of observing the qualifications for appointment as Presiding Officer of the Appellate Tribunal as given in section 50 of the Act.[footnoteRef:49] [49: Ibid.]

Furthermore, the section provides that no act or proceeding before a Cyber Tribunal shall be called in question in any manner on the ground merely of any defect in the constitution of a Cyber Appellate Tribunal. One could argue that this is a highly restrictive provision considering the fact that it would be violative of the established principles of law, namely judicial review. But a closer reading of the provision indicates that it is a pre-emptive method employed by the legislature to protect Cyber Appellate Tribunal's judicial processes/proceedings from getting bogged down under frivolous/unnecessary litigation merely on the pretext of some defect in the constitution of a Cyber Appellate Tribunal.[footnoteRef:50] [50: Ibid.]

56. Staff of the Cyber Appellate Tribunal

(1) The Central Government shall provide the Cyber Appellate Tribunal with such officers and employees as that Government may think fit.[footnoteRef:51] [51: Ibid.]

(2) The officers and employees of the Cyber Appellate Tribunal shall discharge their functions under general superintendence of the Chairperson.[footnoteRef:52] [52: Ibid.]

(3) The salaries, allowances and other conditions of service of the officers and employees of the Cyber Appellate Tribunal shall be such as may be prescribed by the Central Government.[footnoteRef:53] [53: Ibid.]

The office of Cyber Appellate Tribunal is like an organization where the office and employees discharge their respective functions under general superintendence of the Chairperson.[footnoteRef:54] [54: Ibid.]

The salaries, allowances and other conditions of service of the officers and employees of the Cyber Appellate Tribunal shall be such as may be prescribed by the Central Government.[footnoteRef:55] [55: Ibid.]

Under section 87(2)(t) of the Act, the Central Government has the power to regarding the salary and allowances and other conditions of service of other officers and employees of the Tribunal. Till date, no such rules have been made by the Central Government.[footnoteRef:56] [56: Ibid.]

57. Appeal to Cyber Appellate Tribunal

(1) Save as provided in sub-section (2), any person aggrieved by an order made by controller or an adjudicating officer under this Act may prefer an appeal to a Cyber Appellate Tribunal having jurisdiction in the matter.[footnoteRef:57] [57: Id. at pp. 147-148.]

Right of appeal is the creature of a statute and it is for the legislature to decide whether the right of appeal should be given unconditional to an aggrieved party or it should be conditionally given. "Appeal", is defined as the transference of a case from an inferior to a higher court or tribunal in the hope of reversing or modifying the decision of the former.[footnoteRef:58] [58: Id. at p. 148.]

Subramania Ayyar, J. in Chappan v. Moidin Kutti,[footnoteRef:59] observed that: [59: ILR (1899) 22 Mad 68.]

"the two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior court and the power, on the part of the former, to review decisions of the latter. The aforesaid sub-section (1) grants an unconditional right of appeal to any aggrieved party, who has been aggrieved by an order made by Controller or an adjudicating officer under this Act. The sub-section (1) has enlarged the scope of right of appeal by including even those persons who were not even the 'original'- contesting parties (complainant/defendant) before the Controller or Adjudicating Officer in a given case.[footnoteRef:60] [60: Supra Note 58.]

Moreover, rule 3(4)(a) of the Cyber Regulations Appellate Tribunal (Procedure) Rules, 2000 deals with the subject of Joinder of appeals. The meaning that comes out by reading section 57(1) and rule 3(4) together is that the persons against whom similar orders, in similar matters have been passed by the Controller or the Adjudicating Officer may file a joint appeal. It is important to look into Order 1, rule 1 [Who may be joined as plaintiffs] of the Code Procedure, 1908 provisions for Joinder of appeals before the Tribunal.[footnoteRef:61] [61: Ibid.]

Similarly, the Tribunal may also permit under rule 3(4)(b) filing of an application by an Association representing the person desirous of joining in a single application provided, however, that the application shall disclose the names of all the persons on whose behalf it has been filed.[footnoteRef:62] [62: Ibid.]

The legislative intent under the aforesaid sub-section (1) is that the right to appeal before the Cyber Appellate Tribunal is being restricted to any person aggrieved by an order made by Controller or an adjudicating officer under the Act. In other words, the appellant must be an "aggrieved person" in the strict sense and is bound to file a certified copy of the order [Rule 8 of the Cyber Regulations Appellate Tribunal (Procedure) Rules, 2003] against which, he has filed an appeal before the Tribunal.[footnoteRef:63] [63: Ibid.]

(2) No appeal shall lie to the Cyber Appellate Tribunal from an order made by an adjudicating officer with the consent of the parties.[footnoteRef:64] [64: Ibid.]

The aforesaid sub-section (2) makes it clear that where an adjudicating officer with the consent of the parties has made an order, then such order shall not be appealed against, in the Cyber Appellate Tribunal. That is, where a compromise or settlement has been achieved between the contesting parties before the adjudicating officer and the said officer has accordingly made such an order reflecting the spirit of compromise or settlement, then in such a case the said order cannot be appealed against in the Tribunal.[footnoteRef:65] [65: Id. at p. 149.]

Furthermore, it is important to note that the sub-section (2) restricts the enlarged scope of right of appeal being granted by sub-section (1). The Cyber Appellate Tribunal does not allow any aggrieved person to file an appeal if it has been against the order made by an adjudicating officer with the consent of the original contesting parties (complainant/defendant).[footnoteRef:66] [66: Ibid.]

(3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Controller or the adjudicating officer is received by the person aggrieved and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the Cyber Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.[footnoteRef:67] [67: Ibid.]

The aforesaid sub-section (3) grants that the appeal before the Tribunal shall be filed within a period of forty-five days from the date on which a copy of the order made by the Controller or the Adjudicating Officer is received by the person so aggrieved. Moreover, the Tribunal may entertain an appeal even after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.[footnoteRef:68] [68: Ibid.]

The phrase "sufficient cause" has been articulated in the section 5 of the Limitation Act, 1963 for seeking condonation of delay in filing appeal. The Supreme Court has observed in Vedabai v. Shantaram Baburao Patil:[footnoteRef:69] [69: (2001) 9 SCC 106.]

'In exercising discretion under section 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between cases where the delay is inordinate and where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise such a case deserves a liberal approach. No hard-and-fast rule can laid down in this regard. The court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression sufficient cause", the principle of advancing substantial justice is of importance."It is obligatory that the procedures as laid down under rule 3 [Procedure for filing applications], rule 4 [Presentation and scrutiny of applications], rule 5 [Place of filing application], rule 6 [Application fee], rule 7 [Contents of application], rule 8 [Paper book, etc. to accompany the application] and rule 10 [Service of notice of application on the respondents] must be followed by the applicant (appellant) while filing an appeal before the Cyber Appellate Tribunal.[footnoteRef:70] [70: Supra Note 68 at p. 150.]

(4) On receipt of an appeal under sub-section (1), the Cyber Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.[footnoteRef:71] [71: Ibid.]

It is the Cyber Appellate Tribunal's judicial (appellate) function to, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.[footnoteRef:72] [72: Ibid.]

It is obligatory that the procedures as laid down under rule 12 [Date and place of appeal], rule 13 [Sittings of the Tribunal], rule 14 [Decisions on applications], rule 15 [Action on application for applicant's default], rule 16 [hearing on application ex-parte], rule 17 [Adjournment of application], rule 18 [Order to be signed and dated], rule 19 [Publication of orders], rule 20 [Communication of orders to parties] and rule 22 [Orders and directions in certain cases] shall be observed by the Cyber Appellate Tribunal.[footnoteRef:73] [73: Ibid.]

(5) The Cyber Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Controller or adjudicating officer.[footnoteRef:74] [74: Ibid.]

It is important that the Cyber Appellate Tribunal shall communicate orders to the parties to the appeal and to the concerned Controller or adjudicating officer. Rule 18 [Order to be signed and dated], rule 19 [Publication of orders] and rule 20 [Communication of orders to parties] further clarifies the aforesaid sub-section (5).[footnoteRef:75] [75: Ibid.]

(6) The appeal filed before the Cyber Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal.[footnoteRef:76] [76: Ibid.]

The aforesaid sub-section (6) talks about the fast disposal of the appeal filed before the Cyber Appellate Tribunal. It lays emphasis on employing all judicial means' to dispose off the appeal finally within six months from the date of receipt of the appeal.[footnoteRef:77] [77: Ibid.]

In a way the aforesaid sub-section (6) grants a proactive approach to the Tribunal. The six months period is not a maximum time limit that is being granted but it is like a 'best practice' benchmark to be adopted by the Tribunal.[footnoteRef:78] [78: Ibid.]

58. Procedure and powers of the Cyber Appellate Tribunal

(1) The Cyber Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Cyber Appellate Tribunal shall have powers to regulate its own procedure including the place at which it shall have its sittings.[footnoteRef:79] [79: Id. at p. 150.]

The Code of Civil Procedure, 1908 is an Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. The objective of the aforesaid section is that the Tribunal is not bound by the procedure laid down by the Code of Civil Procedure, 1908 and instead it shall be guided by the principles of natural justice.[footnoteRef:80] [80: Ibid.]

The principles of natural justice revolve around the premise that the authority should bear the person concerned before passing any decision, direction or order against him. It is an established law[footnoteRef:81] that "the tribunals should follow law of natural justice and the law of natural justice requires that a party should have an opportunity of adducing all relevant evidence on which he relies. Evidence should be taken in the presence of the parties and the opportunity to cross-examination be given".[footnoteRef:82] [81: Union of India v. T. R. Verma, AIR 1957 SC 882.] [82: Supra Note 80.]

Though, it is clear from section 48(1) that there shall be one or more appellate tribunals but rule 13 [Procedure Rules] provides that ".....Tribunal shall hold ordinarily its sittings at New Delhi". Nevertheless, if at any time, under the said rule the Presiding Officer of the Tribunal is satisfied that circumstances exist which render it necessary to have sittings of the Tribunal at any place other than New Delhi, the Presiding Officer may direct to hold the sittings at any such appropriate place.[footnoteRef:83] [83: Ibid.]

Further, the Cyber Appellate Tribunal shall have powers to regulate its own procedure including the place at which it shall have its sittings. It is an established law[footnoteRef:84] that in the absence of any procedure laid down, the provisions the Code of Civil Procedure should be followed. Interestingly, Procedure Rules are silent on sittings of Tribunal Benches.[footnoteRef:85] [84: Cellular Operators Association of India v. UOI, (2003) 3 SCC 186.] [85: Supra Note 83.]

(2) The Cyber Appellate Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:(a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents or other electronic 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.[footnoteRef:86] [86: Ibid.]

The Cyber Appellate Tribunal is a civil court. Its powers have been mentioned in the aforesaid clauses (a) to (g); it establishes the fact that the tribunal is also a quasi-judicial authority. As it was held by the Supreme Court in the case of State of Maharashtra v. Marwanjee F. Desai:[footnoteRef:87] [87: (2002) 2 SCC 318.]

"Power of authority to summon witnesses, enforce their attendance, examine them on oath or require discovery and production of documents show the quasi-judicial nature of proceedings before the authority". Furthermore, under section 87(2)(v) of the Act, the Central Government has the power to make rules regarding any other power of a civil court as prescribed in clause (g) of the aforesaid sub-section (2). It is important to note that recently in the Official Gazette, the Central Government has published the Information Technology (Other Powers of Civil Courts Vested in Cyber Appellate Tribunal) Rules, 2003 for the purposes of discharging its functions under the Act, in respect of the following matters, namely:(a) setting aside any order of dismissal of any application for default or any order passed by it, ex parte; (b) requisitioning of any public record, document or electronic record from any court or office. (3) Every proceeding before the Cyber Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code and the Cyber Appellate Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.[footnoteRef:88] [88: Supra Note 86 at p. 152. ]

The aforesaid sub-section (3) provides that by the virtue of sections 193 and 228 of the Indian Penal Code, all proceedings before the Cyber Appellate Tribunal shall be deemed to be judicial proceedings.[footnoteRef:89] [89: Ibid.]

Section 193: Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;And whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term, which may extend to three years, and shall also be liable to fine. Explanation 1.A trial before a Court-martial is a judicial proceeding. Explanation 2.An investigation directed by law preliminary to a proceeding before a Court of justice is a stage of a judicial proceeding, though that investigation may not take place before a Court of justice. Explanation 3.An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.[footnoteRef:90] [90: Id. at p. 153.]

Section 228. Whoever, intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.[footnoteRef:91] [91: Ibid.]

It is important to note that under section 193, IPC, intention is the essential ingredient in the constitution of this offence. If the statement was false, and known or believed by the accused to be false, it may be presumed that in making that statement he intentionally gave false evidence.[footnoteRef:92] In order to make a person liable for perjury it is necessary that he should have made a statement on oath regarding the facts on which his statement was based and then deny those facts on oath on a subsequent occasion. [92: Ismail Khan v. State, 1992 Cr LJ 3566 (Kant).]

The object of section 228, IPC, is to punish a person who intentionally insults in any way the Court administering justice. It is to preserve the prestige and dignity of the Court. Its essential ingredients are[footnoteRef:93]: (1) intention (2) insult or, interruption to a public servant and (3) the public servant insulted or interrupted must be sitting in any stage of a judicial proceeding. [93: State of Madhya Pradesh v. Revashankar, AIR 1959 SC 102.]

Acts such as rude and contumelious behaviour, obstinacy, perverseness, prevarication, or refusal to answer any lawful question, breach of peace or any wilful disturbance whatever, will amount to Contempt of Court.[footnoteRef:94] [94: Supra Note 91.]

The aforesaid sub-section (3) further provides that by the virtue of section 196 of the Indian Penal Code, and for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 the Cyber Appellate Tribunal shall be deemed to be a civil court.[footnoteRef:95] [95: Ibid.]

Section 196 of IPC states whoever corruptly uses or attempts to use as true or genuine evidence, any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence.[footnoteRef:96] [96: Ibid.]

Section 195(1)(b)(i) of Cr. PC states that no court shall take cognizance of any offence punishable under any of the following sections of the Indian Penal Code, namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.[footnoteRef:97] [97: Ibid.]

(3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State declared Act if by that Act to be a Court for the purposes of this section.[footnoteRef:98] [98: Id. at p. 154.]

Chapter XXVI: Provisions as to Offences Affecting the Administration of Justice [Sections 340-351 of Cr. PC]. The word 'corruptly' in section 196 of IPC means something different "dishonestly" or 'fraudulently". Although a person may not be dishonest or fraudulent, he may nevertheless be corrupt, if he prevents the course of justice. An offence is committed if a person corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated in relation to Tribunal proceeding, the said person has committed an offence under section 196 of IPC and as such a Court complaint under section 195(1((b)(i), Cr. PC is necessary to prosecute him.[footnoteRef:99] [99: Ibid.]

Moreover, under the provisions of section 340 the Court may prefer a complaint suo motu or on an application made to it in that behalf. It is expedient in the interests of justice that an inquiry should be made into an offence referred to in section 195 of Cr. PC.[footnoteRef:100] [100: Ibid.]

Significantly, it has been observed in Ketki Kunwar v. Sheo Narain Jafa,[footnoteRef:101] that: [101: (1941) 53 All 799.]

....an offence, which is committed in or in relation to any proceeding in the trial Court, is also committed 'in relation to' the appeal in the appellate Court. That is, for example, the offence of perjury, although it was committed in the trial Court, must be deemed to have been also committed in relation to the appeal in the appellate Court, because the person committing it does it with the intention of influencing the proceedings in the trial Court as well as in subsequent proceedings if there was an appeal. 59. Right to legal representation

The appellant may either appear in person or authorise one or more legal practitioners or any of its officers to present his or its case before the Cyber Appellate Tribunal.[footnoteRef:102] [102: Supra Note 100.]

The Act is an empowering legislation as it empowers the appellant to either appear in person or authorize one or more legal practitioners or any of its officers to present his or its case before the Cyber Appellate Tribunal. That is, the appellant has a choice to legal representation. The legislative intent behind such a provision is to empower the appellant to exercise his option keeping in view the technical complexity of the subject-matter.[footnoteRef:103] [103: Ibid.]

60. Limitation

The provisions of the Limitation Act, 1963, shall, as far as may be, apply to an appeal made to the Cyber Appellate Tribunal.[footnoteRef:104] [104: Ibid.]

The aforesaid section has made it clear that the provisions of the Limitation Act, 1963, shall, as far as may be, apply to an appeal made to the Cyber Appellate Tribunal.[footnoteRef:105] [105: Id. at p. 155.]

It was held by the Supreme Court in Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi,[footnoteRef:106] that: [106: (2002) 3 SCC 676.]

"the established rule of limitation is that law of limitation is not applicable to a plea taken in defence unless expressly a provision is made in the statute the Limitation Act does not extinguish a defence, but only bars the remedy". 61. Civil court not to have jurisdiction

No court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an adjudicating officer appointed under this Act or the Cyber Appellate Tribunal constituted under this Act is empowered by or under to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.[footnoteRef:107] [107: Supra Note 105.]

The Act empowers both Adjudicating Officer and the Cyber Appellate Tribunal to have an exclusive jurisdiction to entertain any suit and proceeding in respect of any matter under this Act.[footnoteRef:108] [108: Ibid.]

Construction of the aforesaid section has been strict as it excludes the jurisdiction of civil courts to entertain any suit or proceeding in respect of any matter, which an adjudicating officer appointed under this Act or the Cyber Appellate, Tribunal constituted tinder this Act, is empowered by or under this Ac to adjudicate the contraventions.[footnoteRef:109] [109: Ibid.]

It was held by the Supreme Court in Dhruv Green Field Ltd. v. Hukam Singh,[footnoteRef:110] that jurisdiction of the courts to try all suits of civil nature is very expensive as is evident from the plain language of section 9 of Civil Procedure Code, 1908. This is because of the principle ubi jus ibi remedium. It is only where cognizance of a specific type of suit is barred by a statute either expressly or impliedly that the jurisdiction of the civil court would be ousted to entertain such a suit. The general principle is that a statute excluding the jurisdiction of civil courts should be contrued strictly". [110: (2002) 6 SCC 416.]

Moreover, it has been provided under section 46 of the Act that for the purpose of adjudging under Chapter IX [Penalties and Adjudication] of the Act, whether any person has committed a contravention of any of the provisions of this act or of any rule, regulation, direction or order made thereunder, there shall be an Adjudicating Officer for holding an inquiry in the manner prescribed by the Central Government. It has been further provided under section 46(5) that every Adjudicating Officer shall have the powers of a civil court, which are conferred on the Cyber Appellate Tribunal under section 58(2) of the Act.[footnoteRef:111] [111: Supra Note 109.]

The objective behind such a legislative provision is to create specific enforcement jurisdiction involving the Adjudicating Officer and the Cyber Appellate Tribunal. Since both the Adjudicating Officer and the Cyber Appellate Tribunal have been constituted and have the same powers as vested in a civil court under the Code of Civil Procedure, 1908, it is hence proper that no court shall have jurisdiction to entertain any suit or proceeding in respect of any matter and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.[footnoteRef:112] [112: Id. at p. 156.]

62. Appeal to High Court

Any person aggrieved by any decision or order of the Cyber Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Cyber Appellate Tribunal to him on any question of fact or law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.[footnoteRef:113] [113: Ibid.]

Within the scheme of the Act, the Cyber Appellate Tribunal is the final fact-finding authority. The Act provides a second forum of appeal in the form of the High Court (the first being the Cyber Appellate Tribunal) to any person aggrieved by any decision or order of the Cyber Appellate Tribunal. An appeal is to be filed within sixty days from the date of communication of the decision or order of the Cyber Appellate Tribunal to him on any question of fact or law arising out of such order.[footnoteRef:114] [114: Ibid.]

It was held by the Supreme Court in Cellular Operators Association v. Union of India:[footnoteRef:115] [115: (2003) 3 SCC 186.]

"If a jurisdictional question or the extent thereof is disputed before a tribunal, the tribunal must necessarily decide it unless the statute provides otherwise. Only when a question of law or a mixed question of fact and law are decided by a tribunal, the High Court or the Supreme Court can exercise its power of judicial review".Proviso to the aforesaid section further provides that the High Court, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Importantly, the said proviso has restricted the condonation of delay in filing appeal to a period not exceeding sixty days.[footnoteRef:116] [116: Supra Note 114.]

The aforesaid section has tried to imbibe the spirit of section 57(6) of the Act which lays down the condition that the Cyber Appellate Tribunal to dispose of the appeal within six months from the date of receipt of the appeal, by restricting the condonation of delay in filing appeal in the High Court to a period not exceeding sixty days.[footnoteRef:117] [117: Ibid.]

It was held by the Supreme Court in Ram Nath Sao v. Gobardhan Sao,[footnoteRef:118] that: [118: (2002) 3 SCC 195.]

...the expression "sufficient cause" within the meaning of section 5 of the Limitation Act, 1963 or Order 22, rule 9 of CPC or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of the case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps.

63. Compounding of contraventions

(1) Any contravention under this Act 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.[footnoteRef:119] [119: Id. at p. 157.]

Surprisingly, compounding of contraventions under the aforesaid sub-section (1) does not include the 'complainant' or the person so affected by such contraventions. Further, as in rule 11 of the Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, the contravener may make an application for compounding the contravention during the adjudicating Proceedings to the concerned Adjudicating Officer.[footnoteRef:120] [120: Ibid.]

Importantly, the proviso to the sub-section (1) provides that the maximum amount of the penalty, which may be imposed under this Act for the contravention, so compounded not to such maximum amount prescribed for such contravention.[footnoteRef:121] [121: Id. at p. 158.]

(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.[footnoteRef:122] [122: Ibid.]

Explanation. For the purposes of this sub-section, any second or subsequent contravention committed after the expiry of a period of 3 years from the date on which the contravention was previously compounded shall be deemed to be a first contravention.[footnoteRef:123] [123: Ibid.]

The sub-section (1) remains non-applicable, if a person 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. That is, any same or similar, second or subsequent contravention, if happens within a period of 3 years of the first one, shall not be compounded by the Controller or such officer as may be specially authorized by him in this behalf or by the adjudicating officer.[footnoteRef:124] [124: Ibid.]

How about committing second or subsequent dissimilar contravention within a period of three years of the first contravention, shall it be compounded? No remedy to such a scenario has been provided.[footnoteRef:125] [125: Ibid.]

Any 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.[footnoteRef:126] [126: Ibid.]

(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.[footnoteRef:127] [127: Ibid.]

The aforesaid sub-section (3) provides that 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.[footnoteRef:128] [128: Ibid.]

The compounding of a contravention signifies that the person against whom the contravention has been committed has received some gratification, not necessary of a pecuniary character, to act as an inducement for his desiring to abstain from a prosecution. That is, if a contravention is compounded, it shall result into an acquittal.[footnoteRef:129] [129: Ibid.]

64. Recovery of penalty and compensation

A penalty imposed or compensation awarded under this Act, if it is not paid, shall be recovered as an arrear of land revenue and the licence or the Electronic Signature Certificate, as the case may be, shall be suspended till the penalty is paid.[footnoteRef:130] [130: Id. at pp. 158-159.]

The penalty may be imposed or compensation awarded either by the Adjudication Officer or the competent court under section 46 on account of contraventions as under sections 43, 43A, 44 and/or 45. In case of a person's inability to pay the penalty amount imposed under the Act, the same shall be recovered, as an arrear of land revenue and the licence or the Electronic Signature Certificate, as the case may be, shall remain suspended till the penalty.[footnoteRef:131] [131: Ibid.]

However, if the person is neither a Certifying Authority nor a subscriber of the Electronic Signature Certificate, then in that case recovery of penalty is restricted to an arrear of land revenue only.[footnoteRef:132] [132: Ibid.]

It is interesting to note that land revenue is a State subject under List II in the Seventh Schedule to the Constitution. Different States have enacted their respective land reforms and land revenue Acts, Rules and Regulations for the purposes of collecting land revenue and the recovery of its arrears. That is, recovery of penalty under section 64 of the Act will follow the State's enactment and collected accordingly, till the time State Government may make separate rules for this purpose under section 90 of the Act.[footnoteRef:133] [133: Ibid.]

The Cyber Appellate Tribunal is now a 'multi member body'. The Tribunal has the statutory authority to examine the correctness, legality or propriety of the decision or order passed by the Controller of Certifying Authorities or the Adjudicating Officer under the Act. The new amendments have made the Tribunal an 'expert body' consisting of members having varied qualifications to appreciate the legal, technical and factual questions involved in the appeals in the first appellate stage itself.[footnoteRef:134] [134: Ibid.]

Bibliography

Books

SHARMA, VAKUL. Information Technology, 3rd Edition. New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2014.