Court holds criminal defamation cannot be initiated by FIR and rules creation of email ID does not amount to identity theft under IT Act
In a significant judgment dated September 1, 2026, the Allahabad High Court (Lucknow Bench, Division Bench) stayed an FIR registered under Section 356(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS) relating to defamation and Section 66-C of the Information Technology (Amendment) Act, 2008 concerning identity theft. The petitioners, Krishna Kant Pandey and another, had challenged the FIR lodged at Police Station Aaspur Devsara, District Pratapgarh.
The Court referred to the Supreme Court's decision in Subramanian Swamy v. Union of India (2016) 7 SCC 221, which clarified that criminal defamation proceedings cannot be initiated by filing an FIR or by police direction under Section 156(3) Cr.P.C. Instead, such proceedings must be commenced through a complaint filed by the aggrieved person. Applying this principle, the Court held that the FIR under Section 356(2) of BNS, which pertains to defamation, was not maintainable and stayed the FIR accordingly.
Regarding the allegation under Section 66-C of the IT Act, 2008, which punishes identity theft defined as fraudulent or dishonest use of electronic signature, password, or unique identification feature of another person, the Court examined the facts closely. The FIR alleged the petitioners had created an email ID in the name of a third party and sent fake complaints from it. However, the Court observed that the creation of an email ID alone does not amount to the use of an electronic signature, password, or unique identification feature as contemplated under Section 66-C. The Court noted there is no legal bar on creating an email ID in someone else's name, and hence, prima facie, the petitioners did not commit an offence under this provision.
The Court granted interim relief by staying the FIR and restrained the authorities from taking any coercive action against the petitioners pending further orders. The matter was directed to be listed before the appropriate Bench after counter and rejoinder affidavits are filed.
This judgment underscores the careful approach courts must take when interpreting new statutory provisions such as those in the Bharatiya Nyaya Sanhita, 2023, especially in light of established Supreme Court jurisprudence. It also clarifies the scope of identity theft under the IT Act, preventing undue harassment by police actions based on tenuous allegations of email ID creation.
Bottom Line:
FIR under Section 356(2) of Bharatiya Nyaya Sanhita, 2023 (BNS) concerning defamation, and Section 66-C of the Information Technology (Amendment) Act, 2008, stayed as prima facie no offence under these provisions is made out.
Statutory provision(s):
Section 356(2) of Bharatiya Nyaya Sanhita, 2023; Section 66-C of Information Technology (Amendment) Act, 2008; Section 156(3) of Criminal Procedure Code (reference)
Krishna Kant Pandey v. State of U.P., (Allahabad)(DB)(Lucknow) : Law Finder Doc Id # 2972961
