Creating email ID in someone else’s name not identity theft: Allahabad High Court stays FIR

A bench of Justices Abdul Moin and Pramod Kumar Srivastava was dealing with a plea of two men seeking quashing of the FIR registered against them under the Information Technology Act for alleged identity theft.

“Creation of an e-mail ID would neither be the use of an electronic signature nor a password nor any unique identification, in so far as there is no bar that an e-mail ID cannot be created in the name of a particular individual by any other individual,” the September 1 order said.

Rejecting the respondent’s argument that such an email ID constituted a “unique identification feature”, the court said the legislature had specifically used the terms “electronic signature”, “password” and “unique identification feature” but had not included “e-mail ID” in Section 66-C. Therefore, prima facie, the alleged conduct did not constitute an offence under that provision.

FIR challenged over email creation

Two men approached the high court, challenging an FIR registered against them on July 23 for defamation and Section 66-C (punishment for identity theft) of the Information Technology Act, 2008.

Justices Abdul Moin and Pramod Kumar Srivastava said that there is no bar on an e-mail ID being created in the name of a particular individual by any other individual.

The allegations were that the petitioners had created an email ID in the name of a third person and used it to send fake complaints and messages to various persons, including the Lokayukta. Appearing for the petitioners, advocates Anuj Dayal and Ankit Kumar Trivedi argued that merely creating an email ID in another person’s name did not amount to using that person’s electronic signature, password, or unique identification feature, as required under Section 66-C.

They also challenged the FIR for the alleged offence of criminal defamation, relying on the Supreme Court’s ruling in Subramanian Swamy v Union of India, arguing that criminal defamation proceedings must ordinarily be initiated through a complaint by the aggrieved person rather than through an FIR.

Representing the state, government advocate Ashish Gautam submitted that petitioners knowingly have created an e-mail ID in the name of a particular individual and are using that e-mail ID to send fake messages and complaints to various persons, including the Lokayukta.

It was argued that, therefore, it would be tantamount to using the unique identification feature of a third person, which would be an offence under Section 66-C of the Act, 2008.

Email ID not unique identification: Order

The court observed that Section 66-C of the IT Act specifically covers fraudulent or dishonest use of an electronic signature, password or other unique identification feature of another person.

The court noted that the FIR alleged that the petitioners had created an email ID in the name of a third person and used it to send fake complaints. However, the bench held that merely creating an email ID in another person’s name does not, by itself, amount to using an electronic signature, password or unique identification feature.