Section 46 IT Act: Power to adjudicate

Section 46 IT Act sets up the adjudication system for deciding whether a person has committed a contravention under the IT Act that carries a penalty or compensation. Under sub-section (1), for deciding contraventions of any provision of the IT Act or of any rule, regulation, direction, or order made under it, the Central Government must (subject to sub-section (3)) appoint an officer not below the rank of a Director to the Government of India, or an equivalent officer of a State Government, as an adjudicating officer to hold an inquiry in the manner prescribed by the Central Government. Under sub-section (1A), the adjudicating officer has jurisdiction (legal authority to hear and decide) where the claim for damage does not exceed ₹5 crore. Under the proviso to sub-section (1A), where the claim for damage exceeds ₹5 crore, jurisdiction lies with the competent court instead.

Under sub-section (2) of Section 46 IT Act, the adjudicating officer must give the person concerned a reasonable opportunity to make a representation (to state a response) in the matter. If, after holding the inquiry, the adjudicating officer is satisfied that the person committed the contravention, the officer may impose such penalty or award such compensation as the officer considers fit, in accordance with the section under which the contravention arose.

Sub-section (3) sets a qualification bar: no person can be appointed as an adjudicating officer unless that person possesses both Information Technology experience and legal or judicial experience as prescribed by the Central Government. Under sub-section (4), where more than one adjudicating officer is appointed, the Central Government must specify by order the matters and places for which each officer exercises jurisdiction.

Sub-section (5) gives every adjudicating officer the powers of a civil court conferred on the Appellate Tribunal under Section 58(2) IT Act. Those powers cover summoning any person and examining that person on oath, requiring discovery and production of documents or electronic records, receiving evidence on affidavits, issuing commissions to examine witnesses or documents, reviewing decisions, dismissing an application for default or deciding it ex parte (in the absence of a party), and any other prescribed matter.

Under clauses (a), (b), and (c) of Section 46(5) IT Act, all proceedings before the adjudicating officer are treated as judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, and the adjudicating officer is treated as a civil court for sections 345 and 346 of the Code of Criminal Procedure, 1973 and for Order XXI of the Civil Procedure Code, 1908. The Act still refers to the Indian Penal Code, which the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced from 1 July 2024, and to the Code of Criminal Procedure, 1973, which the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced from 1 July 2024. Sections 193 and 228 of the Indian Penal Code are now Sections 229 and 267 BNS, and sections 345 and 346 of the Code of Criminal Procedure are now Sections 384 and 385 BNSS. Sections 193 and 228 of the Indian Penal Code are now Sections 229 and 267 BNS, and sections 345 and 346 of the Code of Criminal Procedure are now Sections 384 and 385 BNSS. Sections 193 and 228 of the Indian Penal Code are now Sections 229 and 267 BNS, and sections 345 and 346 of the Code of Criminal Procedure are now Sections 384 and 385 BNSS. Sections 193 and 228 of the Indian Penal Code are now Sections 229 and 267 BNS, and sections 345 and 346 of the Code of Criminal Procedure are now Sections 384 and 385 BNSS. Sections 193 and 228 of the Indian Penal Code are now Sections 229 and 267 BNS, and sections 345 and 346 of the Code of Criminal Procedure are now Sections 384 and 385 BNSS. Sections 193 and 228 of the Indian Penal Code are now Sections 229 and 267 BNS, and sections 345 and 346 of the Code of Criminal Procedure are now Sections 384 and 385 BNSS. Sections 193 and 228 of the Indian Penal Code are now Sections 229 and 267 BNS, and sections 345 and 346 of the Code of Criminal Procedure are now Sections 384 and 385 BNSS. Sections 193 and 228 of the Indian Penal Code are now Sections 229 and 267 BNS, and sections 345 and 346 of the Code of Criminal Procedure are now Sections 384 and 385 BNSS. Sections 193 and 228 of the Indian Penal Code are now Sections 229 and 267 BNS, and sections 345 and 346 of the Code of Criminal Procedure are now Sections 384 and 385 BNSS. Sections 193 and 228 of the Indian Penal Code are now Sections 229 and 267 BNS, and sections 345 and 346 of the Code of Criminal Procedure are now Sections 384 and 385 BNSS. Sections 193 and 228 of the Indian Penal Code are now Sections 229 and 267 BNS, and sections 345 and 346 of the Code of Criminal Procedure are now Sections 384 and 385 BNSS. Sections 193 and 228 of the Indian Penal Code are now Sections 229 and 267 BNS, and sections 345 and 346 of the Code of Criminal Procedure are now Sections 384 and 385 BNSS. Section 46 IT Act was amended by Act 10 of 2009 (with effect from 27 October 2009), Act 7 of 2017 (with effect from 26 May 2017), and Act 18 of 2023 (with effect from 30 November 2023).