MANGESH S.PATIL, J. - (1.)We have heard both the sides extensively.
(2.)In view of conflict between a division bench which decided Gagan Harsh Sharma Vs. State of Maharashtra and others; (2019) Cri.L.J. 1398 and a division bench dealing with Awadhesh Kumar Parasnath Pathak Vs. The State of Maharashtra and another and connected matters (Criminal Application 2562 of 2019, Aurangabad Bench - order dtd. 26/2/2020), the latter being unable to concur with the former, following questions have been referred to us for answers :
(1) Whether Sec. 43 read with Sec. 66 of I.T. Act covers the cases:-

(a) Involving the obtaining of permission, by cheating the owner or any other person, who is incharge of computer, computer system or computer network, and thereby induced the owner or person in charge of the computer, computer system or comuter network for doing the act enumerated in Sec. 43 of the I.T. Act ?

(b) The expression fraudulently or dishonestly covers the cases in which permission is obtained from the owner or person who is incharge of computer or computer system or computer network by cheating him ?

(c) Whether Sec. 72 of the I.T. Act covers all the ingredients of Ss. 406, 408, 409 of the Indian Penal Code especially cases in which access is secured dishonestly to any electronic correspondence, information, document or other material and the said electronic record correspondence, information, document or material in misappropriated or converted for one's own use?

(d) Whether the acts done under Ss. 43 or 72 of the I.T. Act cover the criminal acts done with common intention ?

(3.)By relying upon the decision of the Supreme Court in the matter of Sharat Babu Digumarti V. Government of NCT of Delhi; AIR 2017 SC 150, the division bench in Gagan Harsh Sharma held that even a dishonest and fraudulent act falls within the scope of Sec. 66 of the Information Technology Act, 2000 (IT Act). Ss. 79 and 81 give overriding effect and the offences pertaining to electronic record, covered by the IT Act being punishable under Sec. 43 read with Sec. 66 would take out the provisions of the Indian Penal Code. In Awadhesh Kumar Parasnath Pathak (supra), the division bench expressed, for the reasons mentioned in the order, that it was not agreeable with the observations in Gagan Harsh Sharma.