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AN ANALYTICAL STUDY TRENDS IN CYBERCRIMES IN INDIA AND JUDICIAL RESPONSE
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AN ANALYTICAL STUDY TRENDS IN
CYBERCRIMES IN INDIA AND JUDICIAL RESPONSE
AUTHORED BY - DR MANOJ
KUMAR SADUAL,
Associate Professor
PG Dept. of Law
Utkal University,
Bhubaneswar
CO- AUTHOR - ANKIT
SOURAV SAHOO,
Assistant Professor
Lajpat Rai Law College
Sambalpur University,
Sambalpur
Abstract:
The internet is the essence of life
in the 21st century. With the development in technology, the internet has
become more intertwined with our lives than we can think of. Cyber Security
plays an important role in the field of information technology. Securing the
information has become one of the biggest challenges in the present day.
Nowadays when people think about cyber security, the next thing that comes to
their mind is cybercrimes, which has increased massively day to day. Cybercrime
is a serious threat nowadays. Cyber Attacks are more pervasive and threats to
critical infrastructure and lack of security and underreporting makes
Industrial systems and products more vulnerable. Internationally, the most
affecting problems are mass-ransomware attacks and valuable data theft much like
the last few years. There is a need to have one regulatory body to administer
these convergent technologies it can be done through appropriate ICT policy and
regulatory mechanisms, unified licensing as parts of a broader strategy to
promote growth and better position in India and global information
environments.
Keywords: Cybercrime, Cybersecurity, Internet
Governance, Cyber Regulation, Technology Convergence, Cyber Crimes, Digital World,
Technology, Criminal Activities
Introduction:
With the advent of computer networks
and the internet, online culture has become an integral part of modern
existence because most of our activities such as commerce, industry, banking,
money exchange, communication information, government and non-governmental
affairs, academia, etc. run through the internet. The situation today is that a
person can get what he wants to know or see on the internet but despite this
brilliant aspect of computer technology, there are some downsides that are a
major cause of concern not only just for the legislature but for the judiciary
too. Internet culture has created a lot
of online controversy, differences, controversy, etc. due to the misuse of the
computer network for online activities. Although such disputes are not new to
human society, they appear to have existed since the beginning of human
civilization but the cause of concern is that the disputes over online
transactions are completely different in their nature, scope and treatment and
therefore the resolution of these cyber disputes is a serious challenge for the
judiciary.
On Electronic Evidence:
The case of P.R. Transport Agency
v. Union of India and others[1] involved
the question of jurisdiction of court where the contract between the parties
residing in different places has been made on e-mail. In this case, Bharat
Cooking Coal Ltd (BCCL) held an e-auction for coal in different lots in which
plaintiff’s bid for 40,000 metric tons of coal from Duburi colliery was
accepted. The BCCL communicated the acceptance of bid by e-mail on July 19,
2005. In response, the plaintiff deposited the amount of 81.12 lakhs through a
cheque in favour of BCCL which accepted the cheque and en-cashed it but did not
deliver the coal to the plaintiff. Instead, the defendant informed the
plaintiff through e-mail communication that the said e-auction stands cancelled
due to some technical and unavoidable reasons. The plaintiff found that the
e-auction of sale of coal was cancelled by BCCL as there was some other person
whose bid for the same was higher, which had not been considered earlier due to
some flaw in the computer or its program or feeding of data. The plaintiff
challenged the validity of cancellation of its contract by the defendant in the
Allahabad High Court. The defendant objected the territorial jurisdiction of
the Court on the ground that the High Court of Allahabad had no jurisdiction in
the case as the cause of action, had not arisen in the state of Uttar Pradesh.
The plaintiffs, on their part, argued that the case fell within the
jurisdiction of the Court because the communication of acceptance of the tender
was received by them through e-mail in Chandauli in U.P. Having heard both the
parties, the High Court held that in case of e-mail acceptance, the data
transmitted from anywhere by the account-holder goes to the memory of server,
which may be located anywhere and can be retrieved by the addressee
account-holder from anywhere in the world. Therefore, there is no fixed point
either for transmission or for receipt of e-mail. As per Section 13(3) of the
Information Technology Act, 2000, “an electronic document is deemed to be
received at the place where the addressee has his place of business”. The
acceptance of the tender will be deemed to be received by the plaintiff at the
place where it has place of business i.e. Varanasi and Chandauli, both in the
state of Uttar Pradesh, hence the Allahabad High Court had the jurisdiction to
decide the case. On the basis of decision in this case, it may be concluded
that the judicial trend with regard to exercise of jurisdiction by courts in
cybercrimes must conform to the norms of fair play and justice, which
invariably depend on following considerations: -
a) the extent of purposeful intrusion or
illegal activities affecting State's affairs;
b) the extent of conflict with
sovereignty of the State;
c) the forum of State's interest in
adjudication of the dispute;
d) State's responsibility for protecting
the interests of parties providing them relief;
e) Existence of an alternative forum.
In order to support State’s
jurisdiction in cyberspace, the law requires that it not only provides
accessibility to website but also in some way interacts with the victim.
The Indian judiciary is playing the
important role of dealing with such type of crimes by exercising their
technological temperament which is showing in the case of Grid Corporation of Orissa Ltd.
v. AES Corporation[2],
the Apex Court held that “when an effective
consultation can be achieved by resort to electronic media and remote
conferencing, it is not necessary that the two persons required to act in
consultation with each other must necessarily sit together at one place unless
it is the requirement of law or of the ruling contract between the parties.”[3]
With the advancement of new
technology the Apex Court also allowed the facility of video conferencing as
held in the case State of Maharashtra v. Dr. Praful B. Desai[4] by
saying that it is an advancement in science and technology which permits one to
hear, to see and to talk with someone who is far away as like that someone is
in front of you. Similar decision was also given in Amitabh Bagchi v. Ena Bagchi[5]
case and in Bodala Murali Krishan v. Smt. Bodala Prathima[6]
case. The Supreme Court also approved the principle of updating construction
with the purpose to move towards the fast changing technology based society and
held in Ponds India Ltd. v. Commissioner of Trade Tax, Lucknow [7],
that although Wikipedia is not an authentic source but may be looked at for the
purpose of gathering information. In Mohammed Ajmal Mohammad Amir Kasab v. State
of Maharashtra[8],
the court appreciated the electronic evidence while delivering the judgment.
The court appreciated it whether in the form of CCTV footage, memory cards,
mobile devices, data storage devices, intercepted communications over, IP
Addresses, etc.
On Cyber Pornography: As regards the reported Indian
cases on cyber pornography, they are far and few as most of them are disposed
of in the lower Court at the magisterial level. However, the case of State
of Tamil Nadu v. Suhas Katti[9],
observes a special mention in this context since it was disposed, of within a
record period of seven months from the date of filing of the FIR. The credit
for expeditious investigation of the case goes to the Chennai Cyber Crime Cell
which produced 18 witnesses and 34 documents-in support of the prosecution
case. In this case the accused Suhas Katti was sending obscene, defamatory and
annoying messages about the complainant, a divorcee woman on e-mails and in the
Yahoo Message group. He had opened a false e-mail account in the name of the
victim. The e-mails carried a message that the victim lady was soliciting and
therefore, she was receiving annoying phone calls from callers to have sex. She
filed FIR against the unknown accused in the Cyber Crime Cell, Chennai. The
police investigation revealed that the accused was a known family friend of the
victim who was residing in Mumbai and was interested in marrying her. She,
however, married another person whom she divorced after sometime, so the
accused again started contacting her for marriage with him, to which she
declined. Thereupon, he started harassing her by sending obscene and defamatory
e-mails.
The accused was charged under Section
67 of the I.T. Act, 2000 read with Sections 469 and 509 of the Indian Penal
Code. He pleaded that the offensive e-mails might have been sent to the
complainant either by her ex-husband whom she had divorced or she might have
herself managed to do so in order to implicate the accused because he had
turned down her request to marry her. It was also argued on behalf of the
accused that documentary evidence against him was not sustainable under Section
65(b) of the Indian Evidence Act. The Court, however, relied upon the expert
witnesses and other evidence before it including the witnesses of cyber cafe
owner and convicted the accused for the offence under Sections 469/509, IPC and
Section 67 of the I.T. Act. The accused was sentenced to undergo rigorous
imprisonment for 2 years and to pay a fine of Rs. 4500/- for the offence under
Section 469, and imprisonment for one year with a fine of Rs. 500/- for the
offence under Section 509 of IPC, and a sentence to undergo simple imprisonment
of 2 years and a fine of Rs. 4000/- for an offence under Section 67 of the
Information Technology Act. All the sentences were to run concurrently.
In the case of Avnish Bajaj v. State (NCT Delhi)[10],
Baazee.com was an online auction website and Avnish Bajaj was its Chief
Executive Officer. He was arrested in December, 2004 for distributing cyber
pornographic material. The charges against him arose from the fact that someone
had sold copies of pornographic CD through Baazee.com website. The CD was also
being sold in the Delhi market. It was as a result of joint action of Delhi and
Mumbai police that the accused was arrested. However, he was later released on
bail by the Delhi High Court as there was no prima facie evidence that Mr.
Bajaj directly or indirectly published the said pornography and the actual
obscene recording of chip could not be viewed on Baazee.com. The investigation
in this case" revealed that Bajaj was of an Indian .origin and had family
ties in India. His company’s web-site i.e. Baazee.com was a customer web-site
which was dealing with online sale of property on commission basis. An obscene
MMS clipping A DPS girl having fun' was listed for sale on Baazee.com on
November 27, 2004 and some copies of this clipping were sold by the company.
The question for decision before the
Court in this case was to draw a distinction between internet service provider
and content provider. The Court ruled that the burden rests on the accused to
prove that he was only the service provider and not the content provider. The
Court held that the accused deserved to be released on bail as the evidence
showed that the obscene material may have been unwittingly offered for sale on
his company's web-site and there was probability of the alleged crime having
been actually committed by some other person. The accused was, however, ordered
to furnish two sureties of one lakh rupees each and surrender his passport and
not to leave India without the permission of the Court. He was finally enlarged
on bail subject to the condition that he shall participate and assist in the
investigation.
In Air Force Bal Bharti School[11],
popularly known as Delhi case, a student of this school was teased by all his
classmates for having a pockmarked face. Fed up with the cruel jokes, he
decided to get back at his tormentors. He set up a web-side with pornographic
material and scanned photographs of his classmates and teachers and morphed
them with nude photographs and put them on the websites that he uploaded on to
a free web hosting service. The father of one of the class girls who happened
to see the website objected to this and lodged a complaint with the Delhi
Police. The School issued a show cause notice asking the boy as to why he should
not be rusticated from the school for his pornographic offence. The case was
taken up by the Juvenile Welfare Board which heard both the parties i.e. the
counsel for the school and the counsel representing the girl’s, father and
tried to compromise the matter but the father of the accused boy did not agree
to withdraw the boy from the school until the school gave a written guarantee
that his son will get admission in some other school, which the school and the
Directorate of Education were unable to give. The father of the girl
(complainant) insisted that the matter would not be compromised so long as the
accused boy is continuing in the same school as the parent of 12 children whose
names and photographs were scanned in the web-site, did not want their children
to study with the boy (accused) who could indulge in such a heinous crime. The defense
allegation that even before the boy had set up the website other students had
been sending objectionable e-mails about the teachers of the school through the
school's internet connection, was not acceptable as the school produced
sufficient evidence that it had no internet connection before April 4, 2001
i.e. the day accused was indicted for the offence of cyber pornography.
However, the case was later dropped since it was compromised between the
parties i.e. the School and the complainant.
In another case, a Swiss
couple [12]in
Mumbai would gather slum children and then force them to appear for nude and
obscene pornography. They would then upload these photographs to websites
specially designed for pedophiles. The Mumbai Police arrested the couple for
pornography and charged them for the offence of cyber pornography under Section
67 of the I.T. Act read with Sections 292 and 509, IPC. But they were later let
off for want of sufficient evidence against them.
Regarding Intellectual Property: In the case of Kirloskar Diesel Reconstruction
(P) Ltd. V. Kirloskar Proprietary Ltd[13],
the Bombay High Court, held that the definition of trademark includes within it
the word 'mark', which means name and therefore, the term 'trademark' in
Section 105(c) of .the Trademarks Act must be considered to be a comprehensive
term including within it the 'trade name', or the 'business name' and the name
by which the article or goods are sold. Obviously, there should be a reasonable
nexus between the mark used in relation to the goods and the person claiming
right to the use of that mark. In this case, the Court restrained the defendant
from using the trade name ‘Kirloskar’ for their proprietary companies as there
was likelihood of confusion or deception of the public resulting in damage to
the plaintiff. In other words, a passing off action would lie in cases of
trademark or trade name violation. The defendant was therefore, restrained from
using the name ‘kirloskar’ in their online advertisements and internet
communications.
Analyzing the principles underlying
the law relating to passing off, Mr. Justice A.P. Shah of the Bombay High Court
(as he then was) referred to Lord Diplock's observation in Erven Warinick v. Townend
[14]
wherein it was held that the essential characteristics which must be present
for a valid passing off action are:
a) misrepresentation,
b) made by a person in the course of
trade or business,
c) to the prospective customers of goods
or services supplied by him,
d) which is calculated to injure the
goodwill of another trader as a foreseeable consequence; and
e) which causes actual damage to the
business or goodwill of the trader by whom action is brought against the
defendant
The High Court of Bombay came to the
conclusion that when both the domain names are considered, it is clearly seen
that they are almost similar in nature and there is every possibility of
internet users being confused and deceived in believing both the domain name belong
to same person although in fact the two belong to different persons. Rejecting
the defendant's plea that the word RADIFF was derived from the four words,
namely 'radical' information', 'future' and 'free', the Court held that this
assertion appears to be completely false and an afterthought devised to answer
the plaintiff's claim. The Court concluded in unequivocal terms that the prima
facie object of the defendant in adopting RADIFF as a domain name was to trade
upon the reputation and goodwill of the plaintiff’s domain name and the
argument that the field of activity of the two was different is without any
substance because both activities are similar as also overlapping. The
defendant was therefore, restrained from using the domain name RADIFF forthwith.
In the case of TATA & Sons v. A.K. Chaudhary[15],
the petitioners used TATA logo in its website for its products. They sued the
defendant for openly selling his steel and cutlery and similar items using
deceptively similar trademark on the website, and prayed the Court for an
injunction directing the respondent to refrain from selling their products
using brand name similar to that of the petitioners. Allowing the petition, the
High Court of Delhi ruled that petitioner's trademark had acquired unique goodwill
and reputation and it had become a distinctive trademark within the meaning of
Section 9 of the Trademarks Act due to its long continuity. Therefore, the
Court prohibited the defendant from using the trademark under Section 29 (4) of
the Act although it was not being used by the respondent for commercial
purposes.
In yet another case, namely Mr.
Diljeet Titus, Advocate vs Mr. Alfred A. Adebare And others[16]
decided by the Delhi High Court, the plaintiffs were running a law firm which
consisted of advocates specialized in different legal fields. The defendants
were working with the plaintiff's firm and were paid remuneration while they
retained control over the professional organization. They claimed copyright
ownership over the work which they had done while working in the plaintiff's
legal firm. The plaintiff's, on the other hand, contended that since the
defendant's were a part and parcel of the plaintiff's firm, they could not
claim exclusive right in respect of database of the list of clients and the
expert opinions and advice rendered to them as they were under an obligation to
maintain confidentiality. The plaintiff also claimed to have spent substantial
amount of money, time, skill, computer network, law library, office
infra-structure etc.
Consequent to this dispute which
arose regarding the copyright ownership between the plaintiffs and the
defendants, the plaintiffs filed a complaint before the Court that one of the
defendants came to their office after the office hours and downloaded 7.2 GB of
database of their crucial data, write-up through plaintiffs local area network
and allegedly have stolen the hard copies compressed over ten proprietary drafts
of the plaintiffs and therefore, they prayed for protection of their exclusive
data under the Indian Copyright Act, 1957.
After hearing both the parties, the
Court came a conclusion that plaintiff had prima facie copyright in the
database which the defendants had taken away from the plaintiff's office. The
Court noted that the defendants were free to carry on their legal profession, utilize
the skill and information they had mentally acquired by experience gained from
working with the plaintiff's legal firm but restrained them from copying
material of the plaintiff in which the plaintiffs alone had the exclusive
copyright. The principle of law laid down in the case clearly envisages the
need for a careful drafting of different clauses of the contracts before
entering into any kind of relationship, particularly the clauses dealing with
database and in case of a legal firm, whenever an employee of a solicitor firm
drafts a document, the employer is the first owner of the copyright document[17].
Conclusion:
The statistical data of cybercrime in
India indicates that the incidents of these crime is constantly on an increase
as compared to the rate of conviction which is significantly low[18]
the reason being that there is general lack of awareness about the computer
crimes among the people who at times even do not know that they have fallen a
victim to the illegal activities of perpetrators of cybercrime. In result, most
of the crime remain unreported, and a few which are reported, result in
acquittal due to ignorance of the police and investigating officials about the
technicalities of these crimes and lack of sufficient evidence against the
accused[19].
[2] (2002) 7 SCC 736
[3] Grid Corporation of Orissa Ltd. v.
AES Corporation, (2002) 7 SCC 736
[4] AIR 2003 SC 2053
[5] AIR 2005 Cal 11
[6] AIR 2007 AP 43
[7] (2008) 8 SCC 369
[8] 2012 AIR SCW 4942
[10] (2005) 3 Comp. Lj 364
[11] Mumbai 2003
[14] (1979) 2 All ER. 927
[15] 2009 (40) PTC 54 (Del.)
[16] 2006 (32) PTC 609 (Del)
[17] Narayana on Copyright and
Industrial Design (3rd ed.) paras 6 & 28
[18] According to the National Crime
Records Bureau (NCRB), the conviction rate for cybercrimes is only 10%.
Article Information
AN ANALYTICAL STUDY TRENDS IN CYBERCRIMES IN INDIA AND JUDICIAL RESPONSE
Authors: DR MANOJ KUMAR SADUAL, ANKIT SOURAV SAHOO
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/08/26
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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