Challenges in Prosecuting Cyber Crimes in India

Aditi Jha

Intern, Legal Angles Patna





Cyber- crime is emerging as new threat in the world as according to a published article where it has been said that India has over 400 million of users in 2018 which make it the 2nd largest country in the world which has largest population of using internet. As the initial taken by our Prime Minister Mr. Naraneder Modi to make India as a ‘Digital India’ and bring demonetization in the year 2016 which make Indian’s vulnerable to the cyber- crimes as more people were connecting to the Internet which further made them victims of data theft complaints, online cheating cases, online financial frauds and much more.

Cyber - crimes are those offences where the offender uses the modern technology likes Internet (Chat rooms, emails, notices, boards and groups) and mobile phone (SMS or MMS) inorder to commit crimes against individual or group of individuals. It causes harm to the reputation of the victim either mentally or physically or both.

Types of Cyber - crime in India

1. Hacking– Whena person break into somebody else’s computer virtually to have access to a person’s personal and sensitive information such as banking details, email accounts, etc. As now everything become digital, this increases the risk of hacking. It is consider being one of the most common types of cyber-crime.

2. Cyber Stalking – The majority of reported cyber – crime online complaints relate to cyber – stalking, after hacking. This is the online crime in which person harassed other person over the internet. It is generally done against women and kind of similar nature of offline stalking, but just done through online.

3. Online Theft – When a criminal extorts the money of their victim, access the data of the victim’s personal bank accounts, credit card, debit card, and other sensitive information over the internet.

4. Cyber Bullying – When the internet, mobiles or social networks are used for harassing, defaming, intimidating or harassing a person.

5. Cyber Terrorism – When a person is being threatened for extortion or anything else then it is the crime of cyber terrorism.

6. Child soliciting and abuse–When a child is solicited over the internet for the purpose of making child pornography.

Phishing, software privacy, and denial of service attack (DOS) are some other types of cyber – crime cases in India.

Indian Laws related to Cyber - crime

Indian legal system introduces Information Technology Act, 2000 which is substantive and procedural in nature. It provides the offences and the penalties along with the punishments and procedure regarding the investigation of the cybercrime. Section 78 & section 80 of this act deals with the power of investigation along with search and arrest of accuse.

Since, the provisions of IT Act 2000, are not sufficient enough to deal with requirements of the current scenario, therefore the Code of Criminal Procedure, 1973 and the Indian Penal Code, 1860were also amended in order to bring the cybercrime within ambit of the present laws which are subjected to the conventional crime.

The Indian Evidence Act 1872 is applicable to both civil & criminal cases where the evidence were generally in physical form but if talk about cybercrime, the evidence in this either in electronic form or in digital form. Digital evidence is basically any information which was stored or transmitted in digital form, that a party to the case can use it in the trial. But before submitting it in the court of law or before accepting it as evidence, the court will determine whether obtain the digital evidence is admissible in the court of law or not. Also, they check whether it is hearsay or copy. If copied than it can be acceptable or there is requirement of submitting original.

Electronic evidence can be finding in digital photographs, e-mails, ATM transactions. Since the technology has been advanced many software has been developed in every field due to which everything has been saved and available in digital form. As this is the era of technological advancement, where the need of electronic evidence can be useful, therefore Indian government bring amendment in the Indian Evidence Act, 1872 and added electronic document under the purview of the definition of evidence.

Provision related to cyber – crime and their punishment are:

SECTIONS

OFFENCES

PUNISHMENTS

Section 43

Damages to the computer system etc...

Compensation to the person affected.

Section 65

Tampering with Computer Source Code

Imprisonment up to 3 years or fine up to Rs 2 lakhs.

Section 66

Computer related offence

Imprisonment up to 3 years or fine up to Rs 5 lakhs.

Section 66 - A

Sending offensive messages through communication service, etc...

Imprisonment up to 3 years and fine.

Section 66 - B

Dishonestly receiving stolen computer resource or communication device

Imprisonment up to 3 years and/or fine up to Rs. 1 lakh.

Section 66 - C

Identity Theft

Imprisonment of either description up to 3 years or fine up to Rs. 1 lakh or both.

Section 66 - D

Cheating by Personation by using computer resource

Imprisonment of either description up to 3 years or fine up to Rs. 1 lakh or both.

Section 66 - E

Violation of Privacy

Imprisonment up to 3 years and /or fine up to Rs. 2 lakh.

Section 66 - F

Cyber Terrorism

Imprisonment extends to imprisonment for Life.

Section – 67

Publishing or transmitting obscene material in electronic form

On first Conviction, imprisonment up to 3 years or fine up to Rs. 5 lakh or both. On Subsequent Conviction imprisonment up to 5 years or fine up to Rs. 10 lakh or both.

Section 67 – A

Publishing or transmitting of material containing the sexually explicit act, etc... in electronic form

On first Conviction imprisonment up to 5 years or fine up to Rs. 10 lakh or both. On Subsequent Conviction imprisonment up to 7 years or fine up to Rs. 10 lakh or both.

Section 67 – B

Publishing or transmitting of material depicting children in sexually explicit act etc., in electronic form

On first Conviction imprisonment of either description up to 5 years or fine up to Rs. 10 lakh or both. On Subsequent Conviction imprisonment of either description up to 7 years or fine up to Rs. 10 lakh or both

Section 67 – C

Intermediary intentionally or knowingly contravening the directions about Preservation and retention of information

Imprisonment up to 3 years and fine

Section – 68

Failure to comply with the directions given by Controller

Imprisonment up to 2 years or fine up to Rs. 1 lakh or both.

Section – 69 (sub – section 3)

Failure to assist the agency in regard to interception or monitoring or decryption of any information through any computer resource

Imprisonment up to 7 years and fine.

Section 69 - A

Failure of the intermediary to comply with the direction issued for blocking for public access of any information through any computer resource

Imprisonment up to 7 years and fine.

Section 69 – B (sub – section 2)

Intermediary who intentionally or knowingly contravenes in regard to monitor and collect traffic data or information through any computer resource for cyber - security

Imprisonment up to 3 years and fine.

Section - 70

Any person who secures access or attempts to secure access to the protected system

Imprisonment of either description up to 10 years and fine.

Section 70 – A

Indian Computer Emergency Response Team to serve as a national agency for incident response. Any service provider, intermediaries, data centers, etc., who fails to prove the information called for or comply with the direction issued by the ICERT.

Imprisonment up to 1 year or fine up to Rs. 1 lakh or both

Section – 71

Misrepresentation to the Controller to the Certifying Authority

Imprisonment up to 2 years or fine up to Rs. 1 lakh or both.

Section – 72

Breach of Confidentiality and privacy

Imprisonment up to 2 years or fine up to Rs. 1 lakh or both

Section 72 – A

Disclosure of information in breach of lawful contract

Imprisonment up to 3 years or fine up to Rs. 5 lakh or both.

Section – 73

Publishing electronic Signature Certificate false in certain particulars

Imprisonment up to 2 years or fine up to Rs. 1 lakh or both

Section – 74

Publication for a fraudulent purpose

Imprisonment up to 2 years or fine up to Rs. 1 lakh or both

Filing of Cyber Complaint in India

There are the steps provided for filing of cyber complaint in India is:

1. The first step in filing of cyber complaint is to register a written complaint in the near cyber cell of the city one resides. According to the IT Act, one can register a cyber- complaint in any of the cyber cell irrespective of the place where the crime was originated. It was because cyber- crime comes under purview of the global jurisdiction.

2. While filing a cyber-complaint, one need to provide their name, contact details and address for mailing. He/ She need to address the written complaint to the Head of the Cyber Crime Cell of the city where he/ she are filing the cyber-crime complaint.

3. In case, if someone is a victim of an online harassment, a legal counsel could approach to assist that person in filing of report to the police station. Additional to it, one may asked to provide certain documents with complaint. This would, however, depend upon the nature of the crime.

4. If one didn’t have access to any of the cyber cells in India than he/ she can file a FIR at local police station. But if the complaint didn’t accept their than he/ she approach to the Commissioner or the city’s Judicial Magistrate.

5. Since most cyber – crime offences come under the India Penal Code 1860, therefore, a person can register a cyber-complaintin their nearest police station to report them. It is necessary for every police officer to record the complaint or information of an offense, irrespective of jurisdiction under the section 154 of Code of Criminal Procedure, 1973.

Cyber - crimes covered under Indian Penal Code 1860, are categorized as cognizable offenses where warrant for arrest or investigation is not required. In these cases, police officer are bound to record Zero FIR which means FIR which can file in any police station irrespective of place where incident occurs or jurisdiction and same can transferred to the appropriate police station. This provides relief to the victims of the cases which required immediate attention or investigation.

A person can file online complaint for cyber- crimes. It is an initiative taken by the Ministry of Home Affairs, Government of India under National Mission for the safety of women to facilitate victims/complainants to report cybercrime complaints online. In this, people can log their complaint to the online website for cyber – crimes like social media crimes, online financial frauds, ransom ware, hacking, crypto currency crimes, and online cyber trafficking. The portal also provides an option of reporting an anonymous complaint about reporting Child Pornography (CP) or sexually explicit content such as Rape/Gang Rape (RGR) content. All one need to do is

Step 1: Go to the website: https://cyber crime.gov.in/Accept.aspx

Step 2: Click on ‘Report other cyber crimes’ on the menu.

Step 3: Click on ‘File a Complaint’.

Step4: Read the conditions and accept them.

Step 5: Register your mobile number and fill in your name and State.

Step 6: Fill in the relevant details about the offence.

Document required while filing of Cyber- Complaint

As it mentioned in above that certain document can be required while filing the cyber- complaint, therefore these document are:-

For complaint related to Social Media:

v A screenshot of the alleged profile or content

v A screenshot of the URL of the alleged content

v Both hard and soft copies of the alleged content

For complaint related to Internet Banking/ Online Transactions/ Lottery Scam/ Fake Call:

v Bank statements of the concerned bank for the last 6 months

v Copy of the SMSs received related to the suspected transactions.

v Copy of the victim’s ID & address proof as in bank records

For complaint related to Data Theft:

v Copy of stolen data

v The copyright certificate of the allegedly stolen data

v Details of the suspected employee(s) like letter of appointment, non-disclosure agreement, client’s list that he handles and list of assigned duties.

v Proof of breach of your copyright data

For complaints related to Online Cheating:

v A print out of alleged email with its complete header as received by the original receiver (not forwarded one’s)

v Victim’s bank statement

v Details of the suspected transactions

v Soft copies of all the aforesaid documents

Challenges

There are many challenges faced by prosecutors while prosecuting any cybercrime case. These challenges are:

1. Jurisdiction

If a person commits a crime in any other country outside of India or outside the legal jurisdiction of India than which than which law will apply and if that country will not corporate than what will happen? It is possible to prosecute a cyber-criminal if they originate in the same jurisdiction but if both reside in different location than it was close to impossible.

2. Still learning how to prosecute

It has taken years for law enforcement agencies, legal systems, and juries to get up to speed on cybercrime. Law enforcement agencies have had to train their officers in order to recognize the various forms of cybercrime, how to collect and preserve related evidence, and how to hire and to train specialized forensic investigators. Prosecutors, judges, and juries have to be educated as well.

3. No reporting of crimes

Many times it had been seeing that the cybercrimes are not being reported as most of the people didn’t know where to report this type of crime and how to report it. And if they reported the matter than they rarely get sufficient result as soon as possible.

4. Difficulty in gathering of legal evidence

Obtaining good evidence takes the skill but obtaining of any electronic or digital evidence takes many computer professionals and law enforcement officers with cyber expertise came together in order to collect the evidence which can further presented and admissible in the court of law along with withstand the assault of a defense attorney in the court.

5. Lack of standard procedure

There is lack of standard procedures for searching, seizure and analysis of digital evidence, standard of operating procedures for forensic examination of digital evidence.

6. Shortage of Manpower

There is one website where a cyber - police officer told that since there was shortage of manpower who were trained in dealing with cybercrimes which results in failure in the prosecution of the cyber cases.

Suggestions

There is some suggestion in order to reduce the challenges. These are:

1. At present all punishment regards to the offenses committing cyber- crime under IT Act, 2000 is bailable and mainly up to 3 years. This term of punishment should be increased so that their can change in mind sets of these criminal.

2. There is a need to ensure specialized procedures which associated with expertise manpower for prosecution of cybercrime cases in order to tackle them. It must be ensured that the system should provide rigid punishments to the cyber criminals so that it restraint others form doing the same.

3. A separate fast track court should be established for cyber- cases in a productive manner. For this fast track bench, there should be proper appointment of judges who had proper knowledge about cyber law, technical words related to cyber world, etc.

4. Cyber projects like National cybersecurity projects such as the National Cyber Coordination Centre (NCCC), National Critical Information Infrastructure Protection Centre (NCIIPC) and the Computer Emergency Response Team (CERT) need to be strengthened manifold and reviewed.

5. There should be liberal sharing of forensic technology between India and developed countries and cross – country program training exchange program in order to curb the cyber – crimes.

6. Just like FBI in foreign country, CBI (Crime Bureau of Investigation) in India should conduct training program for police officers, as they have separate cyber cell and a manual for conducting investigation.

7. Form a partnership between police agencies and local university’s computer science department, in order to provide expertise to police. This serves as recruiting tool for students who have interest in cyber – crime and police.

Table showing states having separate cyber cells

Name of the State

No. of Cyber Cells presented

Arunachal Pradesh

1 (Itanagar)

Assam

1 (Guwahati)

Andhra Pradesh

1 (Visakhapatnam)

Bihar

1 (Patna)

Dadra and Nagar Haveli

1 (Silvassa)

Delhi

13 (Delhi)

Gujarat

1 (Gandhinagar)

Haryana

1 (Gurgaon)

Himachal Pradesh

1 (Shimla)

Jammu

1 (Panjtirthi)

Jharkhand

1 (Ranchi)

Karnataka

1 (Bangalore)

Kerala

1 (Thiruvananthapuram)

Madhya Pradesh

1 (Bhopal)

Maharashtra

3 (Pune, Mumbai, Thane)

Meghalaya

1(Shillong)

Mizoram

1 (Aizawl)

Nagaland

1 (Kohima)

Odisha

1 (Cuttack)

Punjab

2(one in Patiala& one in Mohali)

Sikkim

1 (Gangtok)

Tamil Nadu

2 (both in Chennai)

Telangana

1 (Hyderabad)

Tripura

1 (Agartala)

Uttar Pradesh

4 (two in Agra, one in Lucknow and one in Noida)

Uttarakhand

1 (Dehradun)

West Bengal

3 (two in Kolkata & one in Asansol)

Conclusion

As technology is getting upgraded day by day, so as crime related to it also getting increases which make people venerable in the hands of these cyber – criminals. Indian cyber laws need to be upgraded time by time for dealing with these criminals. Also, Indian government need to constitute more cyber cells across the nation so that people have any problem related to cyber than they can go to these nearby cyber cells. The police officers in these cyber cells should be well trained by government official in order to handle the cyber – criminals. An awareness programs should be conducted across the nation as sometimes people ignores the thing which lead them to be victims. All the online portals should well function and cases registered there should be resolved as early as possible and make people aware about the online portals because most of the people didn’t know about these online portals.

Bibliography

· Acts:

ü The Indian Penal Code, 1860

ü The Indian Evidence Act,

ü The Code of Criminal Procedure,

ü The Information Technology Act, 2000

· Website:

Ø https://www.livemint.com/Home-Page/6Tzx7n4mD1vpyQCOfATbxO/Why-most-cyber-crimes-in-India-dont-end-in-conviction.html

Ø https://shodhganga.inflibnet.ac.in/bitstream/10603/203654/9/09_chapter%204.pdf

Ø https://www.hg.org/legal-articles/cyber-investigation-how-prepared-are-the-indian-police-37384

Ø https://www.csoonline.com/article/3147398/why-its-so-hard-to-prosecute-cyber-criminals.html

Ø https://economictimes.indiatimes.com/tech/internet/do-you-know-how-to-report-a-cyber-crime-heres-a-guide-for-victims/articleshow/61464084.cms?from=mdr

Ø https://www.myadvo.in/blog/how-to-file-a-cyber-crime-complaint-with-cyber-cell-in-india/

Ø https://iamcheated.indianmoney.com/blogs/how-to-file-a-cybercrime-complaint-in-india

Ø https://ifflab.org/how-to-file-a-cyber-crime-complaint-in-india/

Ø https://www.lexology.com/library/detail.aspx?g=27a808e5-003d-4588-bbf1-c400a4c15b30

Ø https://www.jatinverma.org/cyber-security-in-india

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