CHAPTER-III

THE LAW RELATING TO CYBER CRIME IN INDIA

The concept of crime is not a modern one but it has been existing from time
immemorial. However, time to time, the concept and nature of crimes have changed.
In addition, the definition of crimes has been changed accordingly. In the era of 20th
century and with the advent of computer, the criminals have changed the mode of
committing the crimes from conventional methods to computer based methods. The
first recorded cyber crime took place in the year 1820! That is not surprising
considering the fact that the abacus, which is thought to be the earliest form of a
computer, has been around since 3500 B.C. in India, Japan and China.24 Indian legal
system is now in a developed stage. Indian Legal system is enacting the law along
with the changing situation. As Prof. Allen has rightly contented that, the law is not
only deals with command but is something more. This view shows that the role of law
is broader than the command. This role of law is more relevant in the present
situation. The criminal law closely connected with the each member of the society. In
the age of information technology, cyber law is need of hours. The cyber law means
the law relating to the cyber crime.

Cyber crime is not defined particularly anywhere, cyber crime in general does
not differ from crime in the conventional sense except the method adopted for
commission of crime. The definition of cyber crime is not possible because there are
different forms of misuse of information technology. The ways of misusing
information technology if finalize, then new ways can be drawn by the expert.
Therefore, the particular definition of cyber crime can affect the interest of the large
society. Therefore, it is not possible to define the term cyber crime. The conventional
definition and types of crime covers almost all cyber crimes. Because the basic thing
in the crime is same and one. However, the changes and development in society has
hampered to enact the new laws as like Information Technology Act 2000.

The term cyber law generally deals with all aspect of electronic
communication and regulatory aspect of internet. The cyber law is the branch of law,
which regulates the legal aspect while using internet. It means that anything concern

24
http://hubpages.com/hub/Cyber-Crime last access on dated 2/8/2015 at 8.00 am.

56
with, related to or any legal activity of the internet user in the cyber space covered in
the cyber law. The IT revolution has created a digital world, which is the biggest
challenge to legal system all over the world. Paperless contracts, digital signature,
online transactions have taken the legal world on the verge to think about the new
challenges, thus internet completely ignore geographical boundaries. Due to this
digital world, the criminals have also get the new ways to commit the crime, and this
new generations crime are known as a cyber crime. Considering the transnational
nature of the cyber crime, International community makes obligatory to State for
enactment of cyber law. The initial enactment specially deals with contract, which
takes place through the internet in digital world.

A person seating in any corner of the world can communicate to other person
without disclosing his identity. Due to this nature of internet, it raised various
challenges not only to the government but also to the trade and individual of the entire
world. Therefore, the legal system awakens and required to make certain legislations
to protect the interest of the entire society. Therefore, this new branch of law is
emerged, because the conventional procedure to prevent the crime is useless for
offences committed through the computer or internet. The rules and regulation, which
deals with the cyber space internet and its regulation, are subject matter of the cyber
laws.

Until 1999, India did not have any legislation to govern the cyber space.
However, due to the development in communication and e-commerce, internet makes
impact on the cyber world. This compel to the legal system to enact the rules to
govern the cyber space. Due to the huge use of internet, some alert nations of the
world formulate the policy. India is one of the nations among them. Indian legal
system introduced certain enactment and amendment in criminal laws, which can
called a cyber law. However, cyber crime is not different than the conventional crime,
but it need certain new policies to regulate and control the cyber world.

3.1 Concept of Cyber crime

The term cyber crime is nowhere defined, this concept is vary because the
crime which is going to committed by using any means of communication or internet
can be called as a cyber crime. The misuse of the computer or the internet is not
specific therefore, it is not possible to define the cyber crime specifically. To

57
understand the concept of cyber crime, it is necessary to see the concept of crime,
which is, attach with the computer and the internet. The concept of cyber crime is not
radical different from the concept of conventional crime. Both include the conduct
whether act or omission which causes breach of rules of law and counterbalance by
the state25.

In initial period, the crime is quite different and depends on the will of the
sovereign authority. Now a days the crime is a social and political phenomenon and it
is as old as the human society. 26 Along with the development, the concept of the
crime is legal and back by sanction. Now crime means a legal wrong. Initially it is
somewhere the religions wrong when the religious institutions were powerful. There
were no difference between sin and crime. However, along with the development of
State, the concept of sin was diluted and the sin or wrongful act term in to a wrongful
act. This wrongful act now turns in to the concept of crime or offence. According to
Granville Williams, crime or offence is a legal wrong that can be followed by
criminal proceeding, which may result into punishment. The basic thing in criminality
is that, it is a violation of criminal law. As per Lord Atkin “the criminal quality of an
act cannot be discovered by reference to any slandered but: is the act prohibited with
penal consequences.”27A crime is said to be any act or omission accompanied which
law prohibits. If anyone performs this conduct is amount to the breach of law and he
is subject to punishment.

To constitute any crime there must be act or omission and that must be
prohibited and punishable. The term cyber crime is creation of the information
technologies word, now information technology is an important part of the human life
in present days without this technology it is not possible to fulfill the basic needs of
human being, though it is complicated in nature but need of the hours. This use of
computer or internet generated the term Cyber Crime.

Cyber crime may said to be those species of which genus is the conventional
crime and whether the computer is either an object or subject of the conduct
constituting crime. Any criminal activity that uses a computer either as an

25
Cyber crime- Law & policy perspectives, Dr. Mrs. K. Sita Manikyam (2009) Hind Law House, Pune.
Page 40.
26
Cyber crime by Parthasarathi Pati
27
Proprietary Articles Tread Association V. A.G.for Canada (1932)

58
instrumentality, target or a means for perpetuating further crime come within the
ambit of cyber crime28

The cyber crime, which is the new term, the cyber, is also newly generated
term. When by using the internet, anything going to be done in that cyber space, this
is not found in physically existence that is called a cyber space. When anyone uses
this cyber space to committee the crime, it is called a cyber crime. Cyber crime is not
new but it is as like the conventional crime .Basically the crime means any act, which
is going to commit against the society and create an alarm in the mind of society, or
create a fear in society. So cyber crime means when any person by using the internet
or computer performs the criminal activity as provided in any criminal law, that crime
can be called as a cyber crime. When the word cyber comes, it deals always with the
computer or any network. When this computer or internet is used to commit a crime,
it is cyber crime. In cyber crime computer is an instrument to commit the crime or it
may be a target.

In the present era of rapid growth, information technology is encompassing all

lifestyles all over the world. These technological developments made the transition for
paper to paperless transaction possible. We are now creating new standards of speed,
efficiency and , accuracy in communication, which has become key tools for boosting
innovations, creativity and increasing overall productivity. Computers are extensively
used in the storage of confidential data of political, social and economic or personal
nature, which are of immense benefit to the society. The use of Computers is
increasingly spreading, and more and more users are connecting to the internet. Due
to this situation it is an easy access to the internet and the computer. Therefore, the
criminals started to misuse the computer or internet for the criminal activates. The
internet is a source where anybody can easily access, manipulate and destroy other
information, this activities are nothing but the cyber crime.

A generalized definition of cyber crime may be “unlawful act wherein the

computer is either tool or target or both, the computer may be used as a tool in
financial crime or sale of the any illegal articles. The computer may be the target
when someone tries to unauthorized access to the computer or any personal data; this
kind of misuse of the computer or the computer networks is called cyber crime.

28
http://www.legalindia.com/cyber-crimes-and-the-law/ last access on dated 04/7/2014 at 7.40.am.

59
 There is apparently no distinction between cyber crime and conventional
crime. However, on a deep introspection we may say that there exists a fine line of
demarcation in the involvement of the medium in case of cyber crime. The sine que
non for cyber crime is that there should be an involvement, at any stage of the virtual
cyber medium. Means the cyber crime is subject to the cyber space. Offences
committed via Information technology are known as cyber crime. This information
technology based on the cyber world, but computer does not subjected to commit
cyber crimes. However, the computer hand in hand with the internet has gives birth to
a new generation of crime. In such computer crimes, the role of human hand is less
while the automated machines carry out the major activities. While the Internet is the
wonder gift of science to humankind, at the same time it becomes a haven for
criminals.

The cyber world is the non-physical and the boundary less. Although, the
computer world may exist only in intangible form, it affects the physical and real
environment. The shift of crime to intangibles has a staggering impact on society,
both socially and economically. This Social and economical impact is all over the
world because, due to internet and information technology, the world becomes a
global village. The internet is not subject to any particular state, therefore, the cyber
law and the cyber crime cannot be subject to any particular country or State.
Therefore, it is necessary to see the global perspective of the cyber crime. Being an
international subject all Nations has try to enact the laws regarding cyber crime and
tries to define the concept , thought it is not possible to define the cyber crime, but it
is necessary to define the cyber crime for the execution of the cyber laws.

3.1.1 Definitions

The cyber crime is worldwide problem so various authority, national and

international level tries to define the term cyber crime. Following are certain
important definitions. The Oxford Reference Online defines 'cyber crime' as crime
committed over the Internet. The Encyclopedia Britannica defines 'cyber crime' as any
crime that is committed by means of special knowledge or expert use of computer
technology. So what exactly Cyber Crime is. Cyber Crime could reasonably include a
wide variety of criminal offences and activities.

60
 The words cyber crime and computer crime are use inter changeably in
common parlance. The word computer crimes has wider ambit as it entails not only
crimes committed on the internet but also offences committed in relation to or with
the help of computers. Don B Parker distinguishes between the concepts of computer
crime and cyber crime, and gives the definitions of the terms in the following words.

1. Computer crime: A crime in which the perpetrator uses special knowledge

about computer technology.

2. Cyber Crime: A crime in which the perpetrator uses special knowledge of

cyber space.

A computer crime defined by the U S department of Justice’s “As an illegal

act requiring knowledge of computer Technology for its perpetration, investigation or
prosecution”. However, the definition is not exhaustive as there are many acts, which
can be called abusive activities concerning the computer but they are often not clearly
illegal. Moreover, most of the cyber crimes are committed via internet but the
definition has no reference to it.

Cyber crimes can be plainly define as “ Crimes directed at a computer or

computer system” But the complex nature of cyber crimes cannot be sufficiently
expressed in such simple and limited term.29

The Organization for Economic Co-operation and Development (OECD)

recommended the working definition of cyber crime “computer related crime is
considered as any illegal, unethical or unauthorized behavior relating to the automatic
processing and the transmission of data.”30

This definition is also cannot cover the border aspect of the real nature of the
Cyber crime, while defining the cyber crime, it only cover the illegal activities
pertaining to the data transmission. However, the cyber crime not only deals with the
data transmission, it includes every illegal activity via computer.

In 2001, The Council of Europe Convention31 defines cybercrime in Articles

2-10 in four different categories: 1) offences against the confidentiality, integrity and

29
Cybercrime: Talat Fatima, (2011) Eastern Book Company, Lucknow. Page 89.
30
The Criminal Aspect in Cyber Law in The Indian Cyber Law, Suresh T. Vishwanathan, (2001)
Bharat Law House, Jaipur Page 7.
31
http://www.conventions.coe.int.Treaty.last accesson dated 22/8/15 at 4.00 pm.

61
availability of computer data and systems; 2) computer- related offences; 3) content-
related offence; 4) offences related to infringements of copyright and related rights.32

This is not definition but it explanation of the cyber crime, which cover four
limb in the illegal use of the computer and the internet. The council has broadly cover
all the activities in which the privacy of some once going too violated by using the
computer or related network. It also covers the integrity. It use the computer related
crime means it use same word which cannot give any precise meaning .This definition
is very broader in sense cannot give any precise meaning of the term cyber crime.

On all above definition, the conclusion can be drawn, that the cyber crime is
much border and wide term, yet the correct definition of this term is not available.
There are various cyber laws enacted by the various Nation, but any nation cannot
provide the unities Cyber Law that has cover the complete concept of cyber crime.
The countries have to enact the multiple laws to cover the misuse of the computer and
related crime.

Cyber Crime may be defined as the “act of creating, distributing, altering,

stealing, misusing, and destroying information through the computer manipulation of
cyber space; without the use of physical force and against the will or the interests of
the victim”33

This definition has specifically content the nature of cyber crime, as the cyber
crime is going to commit in the cyber space. Thus the basic thing in the cyber crime
that it ever requires the physical force. Whenever the person misuses the cyber space
to commit, any illegal act that can be called as a cyber crime. It never require the
power or force, but it mere require the technical knowledge. This aspect make the
difference between the cyber crime and the conventional crime is some aspect, but not
in full sense. Because there are various conventional crimes, in which the force is not
required.

Indian legal system has enacted the Information Technology Act in the year
2000, but it has not provided any definition of cyber crime. In Indian legal system
only this act is knows as a cyber law. However, the bill regarding this Act has
provides the definition of cyber crime in it.

32
Cyber Crime and National Security: The Role of The Penal and Procedural Law by Laura Ani
33
Joga Rao, S.V., Law of Cyber Crimes, 2004

62
 The information Technology bill, 1999 defines the cyber crime as, “Whoever
knowingly or intentionally council, destroy, or alter or intentionally or knowingly
causes another to conceal, destroy, or alter any computer source document use for a
computer, computer program, computer system, or computer network, when computer
source code is require to be kept or maintain by law the time being in force shall be
punishable with a fine which may extent up to rupees two lakhs or with imprisonment
up to three years, or with both.” 34

Some of the commonly spelt out definitions of cyber crime are:

1. A criminal activity that involve unlawful access to or utilization of computer

system.
2. Any illegal action in which a computer is use as a tool or object of a crime; in
other words, any crime, the means or purpose of which is to influence the
functions of a computer
3. Any incidents associated with computer technology in which a victim suffered
or could have suffered loss and a perpetrator, by intention made or could have
made a gain.
4. Any violation of the law in which computer is a target of or the means for
committing crime.
5. Any activity, which involves the unauthorized and unlawful access to or
utilization of computer system or network in order to tamper with the help of
computers and the internet, can broadly be called as cyber crime.35

On these spelt, it shows the concept of the cyber crime. However, any
authority has not provided the definition or even Act has not provided the definition
of the cyber crime. but on these common points we can say that all the act which are
going to be committed in the cyber crime are nothing but the part and the parcel of the
conventional crime, which is not different from that. While defining the cyber crime,
the basic is nothing but the illegal act and the unauthorized access to any computer,
which comes under the preview of the conventional crime. The important aspect in
the definition is that, the act committed through the computer is basic, and very few
definitions refer the internet, but the cyber crime is products of the internet and not

34
http://www.nalsarpro.org/CL/Modules/Module4/Chapter-1.pdf last access on dated 04/4/14 at 8.00
pm.
35
Cybercrime: Talat Fatima,(2011) Eastern Book Company Lucknow. Page 91.

63
merely a computer. Therefore, the mere computer or the internet is not subject of the
cyber crime, but both things are part of the cyber crime. Therefore it is difficult to
define the cyber crime .Basic reason behind it is that, it is not different that the
conventional crime and it cannot be subject to any particular way of misusing of
computer or the internet.

3.1.2 Essentials of Cyber crime:

The term cyber crime cannot define due to the critical nature of it, because it
involves the crime relating to computer and computer techniques.36 Therefore, it has
not any specific ingredients different from conventional crime apart from the
techniques. Because development of technology create new way to commit the crime
called the cyber crime has emerged which is radically different from the conventional
crime. This crime is the ill effect of the development of internet regime. In view of the
peculiar nature and repercussions of cyber crime, its characteristics are altogether
different from that of a conventional crime. The most striking features of cyber crimes
are that they are relatively easy to commit, difficult to detect and even harder to
proved. This is the reason as to why these crimes have been characterize as low risk
high rewarding ventures for the cyber criminals who with basic computer knowledge
and skill can easily destroy valuable database causing huge loss or damage to the
affected victims of the crime.

Many a times even the victim affected by cyber crime is unaware of its
occurrence because of lack of adequate skill and know how in handling the computer
system. This is partly due to the fact that cyber crime can be committed even from a
far distant place without the necessity of its perpetrators physical presence at the
scene of crime and partly because detection of these crimes requires hi-tech skill
which the investigators generally lack. This is more true in the case of crimes like
cyber pornography, cyber defamation deceit etc. The reluctance of victims to come
forward and file a police complaint further aggravates the magnitude of the problems
of cyber crime detection and control.37

Another feature of the cyber crime is that it becomes more difficult to detect
when perpetrators thereof is an insider who is an employee working in the
organization, company or the enterprise. The reason being that he is well conversant
36
tecindia.co.in/navneet/navneet-cyberlaw/MIR-012-B2 last accesson dated 4/08/2015
37
Bansal S.K.- Cyber Crime

64
with the routine working system and has a good understanding of the loopholes and
availability of opportunities to commit the cyber crime without leaving any trace for
possible detection. Apart from the employees who are unhappy with their employees
for one reason or the other may tend to target the employees computer system to take
revenge similarly, business rivals may also try to have unauthorized access to system
of their computing counterpart and steal away confidential secret data from his
computer system for personal gain. 38

Cyber crimes have been characterized as high tech offences because they are
committed by the abuse of computer networks and telecommunication technology.
The range of such crime is wide enough to affect the socio-economic and the legal
rights of the people. Through, the use of computer network system in itself is legal but
the illegal actions in using the networks as a medium are deemed illegal and
punishable under the criminal law or the cyber law or both. Like any other cyber
crime the hi-tech cyber crime committed through the computer telecommunication
networks has the following

1) The perpetrators as well as the victim both remain anonymous and difficult to
be identified.

2) Many unspecified potential customers are used through they may be far away
from the place of crime.

3) Evidence against the crime is easy to erase thus rendering the victim helpless.

The consequences of cyber crimes are far reaching. Certain cyber crime are
affecting the personal record of the individual, which violate privacy right, in certain
cases it may get the personal code of the banking account and may cause huge
financial loss. If the banking and financial sectors affect, it may also upset marketing
equilibrium or break down the same by denial of service.

3.1.3 Difficulties to defining cyber crime:

Crime is the concept, which changes with the society. Needs of the society
change along with the development where as the legal system bound to protect the
citizens considering the situation and the changing needs of the people. Along with
the development, the communication technology has emerged in the society. Human

38
.U.N. Congress on prevention of crime & treatment of offenders held in viagna on April 10-17, 2000

65
being, a social animal, whose nature and need is to communicate with each other,
connected with this technology. Now a day the entire life of human being is depend
on the information technology.

Computer is a product of the 20th century. It has drastically changed the modes
of information technology. Along with the utility of the computer, whenever any
techniques bring easiness in the life of human being, it brings similar risk with it. The
computer and this internet bring cyber crime with it. Thus, cyber crime are unknown
to the legal world prior to the birth to the internet and includes not only acts which are
employed to commit the traditional crime using the net but also those crime which are
committed thoroughly and exclusively using the internet. Though certain cyber
crimes are thoroughly committed by using the net, that also nothing but somewhere
attach to the conventional crime, therefore it is difficult to define the cyber crime.

The United Nation highlighted the problem of definition in its manual on the
prevention and control of computer- related crime, stating that although there is
consensus among experts, these definitions have been functional and hence too
specific. A similar problem was expressed by the Council of Europe, the committee
on crime problem decided to leave out any definition of high tech crime in the
Convention on Cyber (2001), allowing individual jurisdiction to apply their own
definition based on their specific body of law. It is however interesting to note that the
IT Act 2000 too omits to define cyber crime or computer crime. This Indian situation,
though the Indian legal system enacted cyber law very recently in year 2000. Even the
major cyber laws of the US and UK do not content a definition of cyber crime.
However, the taxonomy of these elusive crimes would give a circumvention and
exhaustive comprehension of cyber crime. In India, the recent amendment in the IT
Act, 2008 has used the term’ “computer related offences” whereby a good number of
cyber crime have been added to the list of crimes already existing.

Thus, the cyber crime cannot define due to these problems, and it is agreed by
the national or international authorities. On the minute observation of all the cyber
crime policies of the entire countries, Cyber crimes are generally covered in
conventional crime, as like offences against property, offence against privacy, against
security or intellectual right. Therefore, it is not necessary to define cyber crime
specifically, being part and parcel of the conventional crime.

66
3.1.4 Reasons for Cyber crime

Crime is a social phenomenon and there are various reason behind the crime.
Criminologist had studied by giving different reason but the entire criminologist gives
different reason. Cyber crime is creation of the technology and the technology makes
the life of human being easy, therefore every one attracted towards this technology
without sufficient knowledge. This technology is having various special feature due to
which is gives opportunity to the misuse the technology for commission of crime. As
Prof. H. L .A. Hart in his classic work entitled, “The concept of law”39 has stated
that, human beings are valuable to unlawful acts which are crimes and therefore, rules
of law are required to protect them against such acts. Applying the same analogy to
cyber space, the computer systems despite being hi-tech devices are extremely
vulnerable. This technology can easily be use to dupe or exploit a person or his
computer by illegal or unauthorized access. The damage so caused to the victim may
be direct or indirect result of abuse of computer systems. In the absence of any
foolproof mechanism to protect and safeguard innocent computer users against cyber
criminality, the cyber criminals indulge in criminal activities through networks
unabated without any fear of being apprehend and tried for the offence committed by
them. Though it is not possible to give specific reason behind the cyber crime,
however the special character of this technology, which is having easy ways to
commit the cyber. The reasons for vulnerability of computers to cyber criminality
may briefly stated as follows40

1) Capacity to store data in comparatively small space

The computer has unique characteristics of capacity to store huge data in a

relatively small space. A small micro- processor computer chip can store lakhs of
pages in a C.D. Rom. this storage capacity has enough space to remove or derive
information either through physical or visual medium in a much easier way Any data
stored in ROM will remain ineffective even if the power is turned off whatever be the
type of ROM used. The data stored therein is non-volatile and will remain so
indefinitely unless it is intentionally erased or overwritten.

39
Cyber Crimes: Law & Policy Perspectives, Dr.Mrs.K.Sita Manikyam , (2009)Hind Law House, Pune
Page 41.
40
http://www.naavi.org/pati/pati_cybercrimes_dec03.htm last access on dated 03/09/2015 at 5.40 pm.

67
 Computer is an electronic device which carries out its functions with the help
of complex technology rather than manual actions of human beings. The greatest
advantage of networking in the computer age is the wider access to information
resources over a large and extensive medium More and more organizations are
restoring to networks for providing easily accessible information to their employees
customers and parties with which they deal.

Information dissemination through World Wide Web has created new

resources for faster and cost effective easy access to information throughout the
world. It has created new environment of e-mails, chats, down loads etc. However,
wider access to information creates some problems like protecting and guarding any
computer system against unauthorized use.

2) Wider access to information

Access where there is possibility of breach not due to human error but because
of the complex technological manipulations. For a bank vault, which usually contains
lakhs of rupees is well guarded against unauthorized access by miscreants as it is
made up of very strong materials located in a reinforced zoom guarded by security
personnel, secret information can be easily stolen by implementing logic bombs or
key images in access codes. Similarly, the advanced voice records can easily fool
biometric systems and frustrate all security measures.

3) Complexity of computer system

The computer work an operating systems and these operating systems in turn
are composed of millions of codes. Human mind is fallible and it is possible that there
might be a lapse at any stage. The cyber criminals take under advantage of these
lapses, lacunas and penetrate into computer system. Such criminals are called hackers
who exploit the weaknesses in existing operating system and security devices. Thus,
hackers are the dreaded enemy of the internet and general network security and they
exploit the complexity of computer systems motivated by personal vengeance.
Sabotage fraud, greed or malice against the victim.

4) Negligence of Network users

Negligence is closely related to human conduct, It is therefore quite probable

that while protecting the computer system there might be any lapse or negligence on
the part of the owner, thus user which may provide an opportunity for the cyber

68
criminal to gain unauthorized or illegal access or control over the computers
Interaction with the cross- section of computer users has shown that in their anxiety to
put the computer software into regular operation. They allow the access control and
security measures to take a back seat thus providing scope for cyber criminals to
intrude and steal after or erase substantial data. This is particularly true with big
organizations such as banks, corporations, government offices etc. which are
equipped with high tech software systems for public access but leave if totally
insecure and unguarded against information poachers or manipulators due to sheer
negligence of their staff or employees.

5) Non- availability or loss of evidence

The traditional methods for producing storing transmitting and disseminating

information or records has now been replaced by the digital computer processing and
network technology. The real issue before law enforcement and investigating agencies
is how to procure and preserve evidence unlike traditional offences, it is very difficult
to collect sufficient evidence of a cyber crime which could withstand judicial scrutiny
to establish the guilt of the cyber accused beyond doubt41. Anonymity that internet
provides to the cyber criminals encourages him to indulge in criminal activity without
leaving any evidence and even if some evidence is left it is hardly sufficient to
convince the police that a criminal case can be registered against the perpetrator.

The inadequacy of traditional methods of evidence and crime investigation has

necessities adoption of new techno-legal procedure called cyber forensics, which has
broadly been classified as computer forensics and network forensics. The forensic
experts play an important role in collecting and presenting admissible evidence
electronic evidence, search and seizure of material evidence relevant to the cyber
crime under investigation. But still these are certain grey areas which enable the cyber
criminals to tamper with the evidence to mislead the investigating agencies.

6) Jurisdictional Uncertainty42

Cyber crimes cut across territorial borders which undermine the feasibility and
legitimacy of applying domestic laws which are normally based on geographical or
territorial jurisdiction, Cyber crimes are committed through cyberspace network inter

41
James R.Richards – Transnational Criminal Organization, cyber crime &money Condensing.
42
Conventional crime through computer e-book.

69
connectivity and therefore, they do not recognize geographical limitations because of
their transnational in nature. There being no uniformity in law and procedure among
the different nations for handling cyber criminals, jurisdictional conflict a serious
problem for a nation to deal with the cyber offenders. In many cases, it so happens
that create particular cyber activity is recognize as a crime in one country but it is not
so in the other country where the criminal or the victim resides with the result the
criminal easily escapes from prosecution.

In the absence of a single internationally recognized code of law and

procedure governing cyber crimes the law enforcing authorities of individual
countries find it extremely difficult to tackle cyber crimes and criminals while
applying their territorial law. Briefly stated, reporting and conviction in cyber cases is
far and few due to paucity of cyber jurisdiction of the country investigation or trying
these offences and this uncertainty of law encourages the cyber criminals to continue
their notorious activity unabated.

3.1.5 Types of Cyber Crime:

The cyber crime is generic term that can be use by various illegal activates
where in computer or computer network is going to use. The computer crime and
cyber crime are literally different but that cannot separate from each other by the legal
system. Therefore, it is not easy to classify the cyber crime. There are various modes
and manner by with the cyber crime can be committed. Even the traditional crime is
going to be committed by using the computer or internet. The concept of crime is
itself dynamic, and in case of cyber crime, it is more dynamic. Therefore, the cyber
crime can be classified in various ways. It may classify on the use of computer or
mode of using of computer in any crime. The role of computer in every cyber crime is
different so it can classify on that basis also, it can classify on the basis of perpetrator.
Role of computer means insider and outsider. However, the mode or role is not
subject matter of criminal law but the result is more important, therefore on the basis
of result of illegal act, Thus the cyber crime can be classified on the basis of victims
in the manner as following

a) Crime affecting Individual

b) Crime affecting economy
c) Crime affecting national security

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a) Crime affecting Individual
Cyber crime has started to take place by this kind. Maximum cyber crimes are
commit which affect the individual. In this cyber crime, the victim is the user of the
computer or someone used the computer by the name of the victim. The criminal get
access to the computer or account of the other and uses the private access by violating
the privacy right of the victim. The computer is a common and important source of
preserving personal data or information. Internet and the computer develop the
techniques to restore the huge data of person in minimum time. Due to the capacity
and the easy manner, this techniques is going to use in everywhere from school to
hospital and business enterprises to governmental and nongovernmental banking also
make use or abuse of it43.

The availability of the data in the cyber space, through hacking or by other
means with capability to access may cause the criminal infringement of privacy. It
also causes the infringement of right of privacy, which considered as a fundamental
right by the Hon’ble Supreme Court of India. Now a day’s mobile services provider
are using the computer or internet for the preservation and transfer personal data of
their customer. This kind of data may affect by this mode of the cyber crime. This
invention of the privacy is one of the important kinds of the cyber crime.

In this form of cyber crime, criminals made identity theft and commit the
offence of fraud and misrepresentation. Due to such offences, the confidence in the
integrity of commercial transaction may affect. Since the victim of identity theft is
quite innocent and unknown to the act done in his name, he fill shock and surprise
when police approach to him while investigation. The another mode of this kind of
offence is cyber stalking. In cyber, stalking electronic media like internet is used to
harass or contact another person in an unsolicited fashion. The word cyber stalking is
used to refer only the use of electronic communications, such as internet, e-mail,
SMS, MMS, etc. as a device to do stalking.

b) Crime affecting economy:

Information technology is rapidly growing and used in all sectors of the

economy including industry, commerce and services. The use of internet for the use
of development of business and commerce is the need of the hours. The use of
43
Laws on Cyber Crime: P .K. Singh, (2007) Book Enclave, Jaipur, Page 48.

71
internet and computer in business is call e-commerce. This e-commerce provides
various speedy and less expensive procedures in the high- tech business. Thus e-
commerce has removed the national boundaries without any problem. Due to this, less
expensive process attracted the traders and businessperson to use this mode for
transferring the huge amount of money. However, this process is also not without
disadvantages.

The businessman and common man uses this technology to save their time,
but criminals use the technology which is unknown to the general user of the internet
and the technology is more sophisticated technology which is more easier way to
commit the criminal activities. The criminal activity as like hacking and IP spoofing
are the common offence, which are going to commit against the economy. Generally,
the frauds are going to be committed by using internet. Software piracy is the
common offence in a day, the object behind software piracy is nothing but to save the
money. Cyber squatting is another mode to commit the cyber crime. The main object
behind these offences is nothing but to gain wrongfully. This is new mode to commit
conventional crime though, it is known as a cyber crime.

c) Crime affecting National Security:

When the illegal activity in the cyber space, that affect the society and nation
at large are called cyber crime against the national security. Now a day the internet is
going to be use for spreading the ideas. When such use is made by the terrorist
organization to spread their ideology, it will threat the national security. Apart from
this, there is also a major threat of terrorist attempting disrupt the telecommunication
and information technology apparatus itself.

This mode of the cyber crime threats the national and international
perspective. Cyber terrorism is best example of this offence. Terrorists are using the
recent information technology to formulate the plans, raise funds, create propaganda,
and to communicate massage among themselves to execute a plan. 44 Cyber warfare
is another mode to committee the cyber crime which affect the national security.
Computer and internet is integral part of military strategies of various countries in the
world. By using the technology when one country collects the information of enemy

44
Laws on Cyber Crime: P .K. Singh, (2007) Book Enclave, Jaipur, Page 58.

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country, it creates the threat to that country as well as the peace and security of the
world is going to be affected by this kind of activities.

3.1.6 Cyber Crime and Offences under Indian Penal Code

As the society changes, the concept of the crime develop along with the time
and invented the cyber crime. as already mention that cyber crime is criminal act in
which the computer or the network is either tool or target or both. In India, the
criminal law means nothing but the Indian Penal Code, this the complete code which
deals with all the offences, it dealing with all kinds of offences, though the concept of
crime is new and technical, but the Indian Penal Code is still effective and covering
all kinds of crime. Therefore this conventional criminal law is sufficient to deal with
all kinds of crimes, whether this cyber crime or any other crime.

Indian legal system enacted Information Technology Act, 2000 with intent to
regulate the e-business. That is purely a contractual law dealing with the commerce,
but along with e-business, it provides certain provisions dealing with unauthorized use
of the internet or unauthorized use of the computer. This misuse is called as a cyber
crime in The Information Technology Act, 2000, which is India’s cyber Law. The
offences provided in this Act are already provided in Indian Penal Code in the various
provision from the enactment of the Indian Penal Code.

After coming into force of the Information Technology Act, 2000 on 17th
October,2000 appropriate provisions have been incorporated in the substantive
criminal law of India. The substantive criminal Law of India means Indian Penal
Code, because the various offences of this law are too much similar to the offences
which are known cyber crime, only due to technology to commit that offences is quite
different therefore the amendments are require to bring that offences under the
preview of this Code. The amendment insert certain new term in the Indian Penal
Code only with intent to make effective implementation of provisions dealing with
this offences which are going to commit by using the information technology.

The Information Technology Act, 2000 contains wide range of offences such
as tempering with computer sources, sending offensive messages, violation of
privacy; publishing obscene material etc. these all illegal activities are already
recognized as an offence in Indian Penal Code. These similarities can discuss in the
following ways;

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 Similar offences also fall under the Indian Penal Code.

(i) Sending threatening messages by email Section 503 IPC

(ii) Sending defamatory messages by email Section 499 IPC

(iii) Forgery of electronic records Section 463 IPC

(iv) Bogus websites, cyber frauds Section 420 IPC

(v) Email spoofing Section 463 IPC

(vi) Web-jacking Section 383 IPC

(vii) E-Mail Abuse Section 500 IPC

(viii) Online sale of Drugs NDPS Act

(ix) Online sale of Arms Arms Act

x) Pornographic Section 292 IPC

3.2 Cyber Crime and Criminal law of India:

Cyber crime is undefined concept, which means the criminal activity done by
using the computer and internet. Cyber crime is a boundary less crime. Until the 1999,
Indian legal system has not concerned with any cyber law specially to control to the
criminal activity. The present cyber law of India is creation of the e-commerce,
because the concept of corporate world has undergone change and the multinational
companies are working and require the protection in the new modes of the business.
New modes of communication techniques are going to utilize by the business
community. The internet makes available the easy and fast mode of communication to
the business world. The International community has also filled that for the
globalization of the business it is necessary to introduce the new modes for the
business. This globalization compels the international community to provide the
regulation for the use of the internet. This leads to making of rules and regulation
regarding the control of the e-business.

Though this internet and e-commerce emerged to make the easy and speedy
communication, it impliedly provides the multiple opportunities to perform the illegal
activities. When this illegal activity violates the right of someone as provided by any
law, then it is the duty of the legal system to enact the laws to protect from that act.
Criminal law is the most important branch of the law, which closely connected with

74
everyone. It is rightly says that criminal law is the best when it criminalizes least.
Therefore, when the cyber crime ramped in the society, It need the effective criminal
law to curb it.

The Information technology has invented the new world of cyber space. This
world is the creation of the 21st Century. However, it is not like a physical world,
however, it connected the world and makes it as a global village. Therefore, the work
of legal system increased. Being a welfare state, it is duty of the state to protect the
citizens in cyber space also. Therefore, it is necessary to the legal system to regulate
the activities in the cyber space. It is not subject of any particular country, but
worldwide subject therefore the present cyber laws in the world are having
transnational nature.

The Indian legal system has enacted Information Technology Act in the year
2000. The said act is mostly deals with the e-business and the regulation of e-
commerce. Along with this, it recognized certain cyber crime. However, the
Information Technology Act is enacted, Which deals with the regulation of digital
signature and the authorities regarding it, The I.T. Act does not provide completely
about the cyber crime but the other criminal law also deals with the cyber crime.
Indian Penal code also deals with the certain computer crime because cyber crime is
new mode of the committing crime, which is not so much different from the
conventional crime. However the cyber crime is committed by using the different
modus operandi, therefore some amendments are require to cover the technical aspect.
Therefore, the cyber law is enacted by the legal system. India is one of the countries
among them, which are having alertness regarding the crimes going to be committed
in cyber space.

3.2.1 Evolution of law in Cyber Space:

The modern world is of the cyber space, 21st century gives us a new world of
internet. It drastically changes the life style of human being. Internet is now a lifeline
in the present days. One or other way now connects everyone with computer. Every
person generally using cell phone, laptop, tab computer etc. Computer takes place of
paper and all records, so that personal data is now on computer or in the cyber space.
So for protecting the personal information and data in the cyber space the laws are
required. Cyber space represents the medium of communication, electronic

75
communication that is fast outmoding or even replacing more traditional method of
communication. Therefore, cyber laws are the requirement and need of time. The
convergence of the computer network and telecommunication facilitated by digital
technologies has given birth to a common space called cyberspace. The new shorter
Oxford Dictionary explains the expression Cyberspace as, “the national environment
within which electronic communication occurs, especially when represented as the
inside of the computer system.” 45 Space perceived as such by an observe but
generated by a computer system and having no real existence, the space of virtual
reality.

Traditional legal systems have had great difficulty in keeping peace with the
rapid growth of the internet and its impact throughout the world. While some laws
and objective have been enacted and a few cases have been decided that affect the
internet, they leave most of the difficult legal issue to future. In spite of the recent
fluency of legislation world-wide, it is unlikely that court and legislators will be able
to provide sufficient guidance in a timely fashion to business to enable them to engage
in commerce on or otherwise take advantage of the internet in a manner that avoids or
minimize unexpected consequences or liabilities.

An internet or network of computers can operate without the constraints of

space, state borders etc. Though they are only a medium for storage, analysis and
communication of information, they virtually create a world of their own a medium in
which a business can be transacted without any of the inhibitions that the real world
imposes.

The main functions of the internet have thus emerged as providing

1. A cheap, fast relatively insecure means of international communication of text,

sound and image,

2. A method of publishing information internationally,

3. A method of hosting bulleting border services through which link minded

people connect and interact with each other.

4. An information resource without political or content boundaries, limited only

up to information provides which he want to disclose

45
https://en.oxforddictionaries.com/definition/cyberspace last access on dated 22/2/15 at 5 .00 pm.

76
 Further challenges are presented by the need for security in electronic
network. Government is in favors of the security but not for criminal or subversion
communications. The growth in international crime has increased the need for the
Government’s ability to break corruption of unlawful communication, but lawful
communication must be subject to the same link.46

India the largest democracy in the world and a country with a strong legal
culture is coming to fruition to take it rightful place as a leader and impact of it that
Indian legal system enacts the cyber space regulation statutes, Information
Technology Act in the year 2000.

3.2.2 Indian Law on cyber crime

India also, like other countries of western has a well-developed legal

infrastructure and it is going with the development and time. The result of this, India
too is sharing the legal liability, which is the outcome of the technological boom.
Though the India is having rich heritage of the legal system, then also it facing the
problem of the traditional notion of the jurisdiction which is the great difficulty for the
laws related to the cyber space.

India has emerged as a world’s leader in the field of Information technology ,

because the earning from the software and the IT services is nicely contributing the
Indian economy. With increasing in the growth and development of information
technology and cyber world, the possibility of increase in the crime relating to
computers has also increased simultaneously. Legislative steps for regulating the
electronic commerce and checking the cyber crimes have also become essential. The
Indian Parliament therefore enacted the Information Technology Act, 2000. For
combating crime problem The Indian response in the form of legislative action as well
as the IT revolution is mainly limited to this Act and Rules and Regulation made there
under.47

Before the enactment of the Information Technology Act 2000, the Indian
Penal Code is dealing with the crime committed through the computer. Even the
general laws of India Criminal Procedure Code and even the Law of Tort is concern
with the act committed in this era. Because when any wrongful act or a crime is

46
Guide to cyber Laws: Rodney D. Ryder (2003), Wadhwa Publication Nagpur, Page 6.
47
Laws on Cyber Crime: P.K.Singh (2007), Book Enclave, Jaipur, Page 23.

77
committed where in any right is going to be violated, the conventional law provides
the remedy. The act like fraud and the violation of privacy are subject matter of the
concern law. However, the cyber crime is new term but the cyber crime is violation of
the traditional right of the individual as like destruction of the property or defamation
through the internet. The offences as hacking is violation of right of privacy as
recognized a fundamental Rights by the Apex Court of India. However, considering
the need of International Society and for giving effect to the UN resolution the Indian
legal system require the law relating to the computer and Internet therefore the
Information Technology Act and certain special rules enacted by the Indian legal
system. Due to certain technical nature, certain amendments also need therefore the
Indian Legal system formulated the rules to maintain its legal status in international
family.

To meet the need of 21st Century the Indian legal system deals with the laws
relating to the cyber space and cyber crime as following:

1. Information Technology Act:

To regulate the electronic communication the Indian Parliament has enacted

this Act, which involve the use of alternatives to the paper base means of
communication and storage of information, to facilitate the electronic filing with the
government agencies. Along with the enactment of the IT Act 2000, to recognize the
electronic communication certain important amendments has made in the Indian laws,
the amendments are required to make the execution of the regular laws in the
information technology age. The main object of the IT Act is to facilitate legal
reorganization and regulation of commercial activities through electronic medium.
This Indian Act is based mainly on the United Nations resolution No A/GES/51/162;
Dated 30th January, 1997, as well as on the UNICITRAL Model Law on Electronic
Commerce.48 This is only one act in Indian legal system, which known as the Cyber
Law of India. At the outset this act nowhere define the term cyber crime and this Act
does not focus its attention towards the various forms of cyber crimes.

If we see the basic object of this act, it is business law rather than the criminal
law. The maximum provisions of this Act deals with the regulations of e-commerce

48
IT Act 2000 vs 2008- Implementation, Challenges, and the role of adjudicating officers. By Karnika
seth.

78
and the recognition of the digital signature. As K.P. Singh has rightly pointed out the
major issue covered under the provision of the act are as following49.

a) Establish rules which recognize and validate contracts and execution through
electronic mediums;

b) Cover defaults rules for contract creation and governance of e-contract

performance;

c) Provide the definition and characteristics of a valid electronic writing and an

original documents;

d) Contents provisions for the recognition of electronic signature for legal and
commercial purposes;

e) Recognizes the admission of computer evidence in courts and arbitration

proceedings

The law is enacted to meet the digital technology and new communication
technology and it also provides penalties for misuse or illegal use of technology in
certain situation therefore it is known as cyber law of India. As per the preamble of
the Act, the object is more dealing with the electronic communication and the
contract, which made through the internet. The preamble of Act says there is need for
bringing in suitable amendments in the existing laws in our country to facilitate e-
commerce. It is, therefore proposed to provide for legal recognition of electronic
records and digital signature this will enable the conclusion of contracts and the
creation of rights and obligation through the electronic medium. It is also propose to
create the civil and criminal liabilities for contravention of the provision of the
proposed legislation.

Nature of the I.T. Act, 2000:

It is well recognized that it is mainly enacted to recognized and facilitate e-

commerce and not to govern cyber crimes, however the Act defines certain offences
and penalties. Chapter XI of the act deals with offences and the Chapter IX deals with
penalties and the authorities regarding adjudication. These two chapters of the I.T. act
deals with certain cyber crimes. Chapter IX focus on the following important features:

a) Regulating conduct in its unique way;

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Laws on Cyber Crime: P.K.Singh (2007), Book Enclave, Jaipur, First Publication. Page 96.

79
b) Civil regulations to be employed by premise rather than criminal;

c) The process of adjudication is entrusted to adjudicating officers rather than

regular civil courts;

d) Such adjudicating officers are required to know the laws and the IT or must
have judicial experience;

e) Adjudicating officers are vested with power of civil court;

f) The proceeding to be conducted by such adjudicating officers are to be

construed as judicial proceedings;

g) The quantum of compensation to be calculated at market rate for loss or

sufferings.

This features shows that this chapter mere gives of civil court, certain
provisions deals with power to impose the penalty. When these provisions of IT Act
which deals with the civil liability, and if the act is comes under any penal provision
of Criminal law, then it can registered under that Laws also. Means this cyber law is
not fully deals with the all cyber crime. but it needs the support of the conventional
criminal law. Because the cyber crime is not much different than the conventional
crime.

Chapter XI of the Act defines certain offences and prescribed the punishment
for that cyber crimes. For example, Section 65 of the Act deals with the offence of
Tampering with the computer source document. The wording of the tampering is as
following:

Section 65: Tampering with Computer Source Document: Whoever

knowingly or intentionally conceals, destroys or alters or intentionally or knowingly
causes another to conceal, destroy or alter any computer sources code use for a
computer, computer programmer, computer network or computer system, when the
computer code is required to be kept or maintain by the time being in force shall be
punishable with imprisonment up to three years, or with fine which may be extended
up to two lakh rupees or both .50

This is the penal section of the IT Act, which deals with concealing or
distorting the source of the computer. This offence deals with the privacy of the

50
Section 65, The Indian Information Technology Act , 2000

80
computers accession. For this, the punishment is provided up to the three years. This
section essentially tries to stop the efforts or actions or commands given to the
computer to alter the programs, destroy the programs or to cancel them in such a way
that they cannot be used by the person who owns the program. Whether this is
intentional or mischievous act but it attracts the punishment up to three years or fine
up to two lakhs rupees.

This section enacted mainly to protect the institution where the important data
is going to be kept or stored. The most important step, which an organization should
take is to register its source Code. There are times when it becomes difficult for an
organization to prove that a particular source code was there property as one of the
ex-employees might take away the code to see in other company. There, if the
organization has registered its source code then it is easy to pin down the culprit.51

Like this there are further section 66, 67, 70 etc. which deals with the offences
as like hacking the computer or offence of obscene publication in electronic form.
Section 65 to 75 of the IT Act deals especially with the cyber crimes and the
punishments for that, but these are not the all forms of the cyber crime. All these
offences deals with the criminal act though it is similar to the conventional crime,
where in the computer is either tool or target while committing that crime.

Section 66 deals with the offence of unauthorized access to the computer

resource. In the language of the computer, it is called hacking. The act in this offence
is going to be committed by using the dishonest intention. The Information
Technology Act does not use the term hacking. Hacking is the basic act of criminals
who later on treat to the other computer related crime and fraud. There are various
modes of unauthorized access to the computer, therefore the various sub-sections are
added to the sec. 66 of the Information Technology Act by making amendment

The Information Technology Act 2000 has provided certain important cyber
crime as like the cyber terrorism and publishing the obscene material. Along with the
Information technology, Indian legal system enacted certain rules and regulations,
which violation is cyber crime.

The following Act, Rules and Regulations are covered under cyber laws:

1. Information Technology Act, 2000

51
Cyber Law & Crime : Barkha U Rama Mohan (2011) Asia Law House, Hyderabad. Page 1.

81
2. Information Technology (Certifying Authorities) Rules, 2000

3. Information Technology (Security Procedure) Rules, 2004

4. Information Technology (Certifying Authority) Regulations, 2001

As the said act also cannot fulfill the need of the time and the cyber security is
facing the problem as well as the execution is impossible due to certain technical
problem. Therefore, the Information Technology Act is drastically amended in the
year 2008. The said amendment has made to bring the cyber crime under the preview
of the conventional law.

The Information Technology (Amendment) Act, 2008

After the execution from the 2000, the IT Act is facing difficulties while
executing. Due to certain technical loopholes in I T Act, 2000, the amendment is
sought to for the smooth execution of the Act; the amendment takes place in 2008,
which has changed the nature of the I.T. Act. To meet the hurdles for the enforcement
certain important sections are inserted in the I T Act and it brought the various illegal
activities on computer in the preview of cyber crime in this Act The Information
Technology (Amendment) Act, 2008 which was made effective from 27 October
2009. The IT (Amendment) Act, 2008 has brought remarkable changes in the IT Act,
2000 on several counts.

The amendment added certain important definitions in the Act, Section 2(ha)
is added “Communication device” which bring the cell phone under the preview of
cyber crime. This amendment brings all communication devices, cell phones, iPods or
other devices used to communicate, send or transmit any text, video, audio or image.
Section 2 (w) has also bring the service providers under the preview of cyber crime.
The amendment Act also inserted various new things in the Act as like the controlling
authority, power of adjudicative authority. However, more important is that, certain
provisions regarding the offences are included in the Act.

New cybercrime under I T Amendment Act, 2008:

Many cybercrimes for which no express provisions existed in the IT Act, 2000
now included by the IT (Amendment) Act, 2008. This Act adds new provisions in
section 66,as like Sending of offensive or false messages (s 66A), receiving stolen
computer resource (s 66B), identity theft (s 66C), cheating by personation (s 66D),

82
violation of privacy (s 66E). These all things though concern with the privacy rights
but that is going to violated by different mode so it require to be in the Act. A new
offence of Cyber terrorism is added in Section 66 F which prescribes punishment that
may extend to imprisonment for life. Section 66 F, covers any act committed with
intent to threaten unity, integrity, security or sovereignty of India or cause terror by
causing DoS attacks, introduction of computer contaminant, unauthorized access to a
computer resource, stealing of sensitive information, any information likely to cause
injury to interests of sovereignty or integrity of India, the security, friendly relations
with other states, public order, decency, morality, or in relation to contempt of court,
defamation or incitement to an offence, or to advantage of any foreign nation, group
of individuals or otherwise. These offences are more important because the offences
against the nation are now going to be committed by using new techniques of the
communication.

For other offences mentioned in Section 66, punishment prescribed is

generally up to three years and fine of one/two lakhs has been prescribed and these
offences are cognizable and bailable. This will not prove to play a deterrent factor for
cyber criminals. Further, as per new Section 84B, abetment to commit an offence is
made punishable with the punishment provided for the offence under the Act and the
new Section 84C makes attempt to commit an offence also a punishable offence with
imprisonment for a term, which may extend to one-half of the longest term of
imprisonment provided for that offence.

In certain offences, such as hacking (sec 66) punishment is enhanced from

three years of imprisonment and fine of two lakhs to fine of five lakhs. In Section 67,
for publishing of obscene information imprisonment term has been reduced from five
years to three years (and five years for subsequent offence instead of earlier ten years)
and fine has been increased from one lakh to five lakhs (rupees ten lakhs on
subsequent conviction). Section 67A adds an offence of publishing material
containing sexually explicit conduct punishable with imprisonment for a term that
may extend to five years with fine up to ten lakhs. This provision was essential to
curb MMS attacks and video voyeurism. Section 67B punishes offence of child
pornography, child’s sexually explicit act or conduct with imprisonment on first
conviction for a term up to five years and fine up to ten lakhs. This is a positive
change as it makes even browsing and collecting of child pornography a punishable

83
offence. Punishment for disclosure of information in breach of lawful contract under
Section 72 is increased from two yrs up to five yrs and from one lakh to five lakhs or
both. This will deter the commission of such crime. By virtue of Section 84 B person
who abets a cybercrime will be punished with punishment provided for that offence
under the Act. This provision will play a deterrent role and prevent commission of
conspiracy linked cybercrimes. In addition, punishment for attempt to commit
offences is given under Section 84 C, which will be punishable with one half of the
term of imprisonment prescribed for that offence or such fine as provided or both.52

Thus, the important changes takes place in I.T. Act 2008, which brings the
various crimes, which are committed by using the computer or any communication
device. Then also various cyber crimes are going to be registered using the Indian
Penal Code. It shows that the Amendment cannot cover all the cyber crimes, because
the cyber crime is basically different from the conventional crime, however the way
to commit the crime is changed and the computer is a tool to commit the crime or in
certain crime it is target.

2. Indian Penal Code .1860

Indian Penal code is the universal criminal law of India. The base to constitute
the offence is nothing but the guilty intention and prohibited act according to the
Indian Penal code. The Indian penal code is basic criminal law of India, along with
the time, the legal system enacted certain special criminal law. The cyber crime is
creation of information technology age, though the modes or ways to commits cyber
crime is different from the conventional crime, but it is not much different from the
conventional crime. The IT Act has not covered all the cyber crimes; again, Indian
Penal code is applicable. Due to the universal nature of the IPC, it covers almost all
the crime.

Therefore the enactment of Information technology compel the law makers to

amend the Indian Penal code, which is called as a conventional Penal law of India.
The First schedule to the Information Technology Act of 2000 has amended the
certain provisions of Indian Penal code, 1860. The amended provision have been
widened to include offences involving electronic record.

52
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84
 Sec. 192 of the Indian Penal code has amended the meaning of fabricating
false evidence to include any false entry or electronic records containing a false
statement. The word electronic record is creation of this digital world. When the
electronic record is comes under the preview of the Indian Penal code, then most of
the offences relating the documents which are committed by way of computer are
comes under the jurisdiction of Indian penal code, though they are known as a cyber
crimes. Section 192 deals with the fabricating false evidence, whenever any
electronic record is falsely made which provided for the judicial proceeding then it
amount to be fabricating false evidence.

This offence can be committed by using the computer as a tool, and then also
it is subject to the Indian Penal code, apart from this the crime like web-jacking,
threatening emails etc. are within the preview of section 383 of Indian Penal code
dealing with the extortion. Whoever intentionally puts any person in fear of injury to
that person, or to any other and thereby dishonestly induce the person so put in fear to
deliver any property or valuable security or anything signed or sealed, which may be
converted into a valuable security, commits extortion. This offence can also be
committed by sending threading emails, Information technology Act provide the
punishment for this crime but it can be penalized under Indian Penal Code.

Fraud on the internet is big business. Most of the cyber crimes comes in the
category of fraud, but the Information Technology Act has not define the concept of
fraud therefore most of the offences comes under the preview of the Indian Penal
Code. Section 25 of IPC definitions fraudulently as a person is said to do a thing
fraudulently if he does that thing with intent to defraud but not otherwise. The IT Act
Section 66B used the word “dishonest intention” which is not defined in the IT Act
then one can refer to IPC, which is a general legislation in the area of criminal law.

When any cyber fraud is committed in real sense it would be cheating which is
defined in section 415 of I.P.C. when any person makes the cheating by using internet
it is very easy to him to hide his identity, this act perfectly comes it the offence
provided under section 416 of I.P.C. that is cheating by personation. Apart from this
various cyber offences are relevant under the sections as like 405,406,463,465 of
I.P.C. even the launching of virus is provided under section 43 of I.T.ACT is comes
under the preview of sec. 425 of I.P.C. The act of launching of virus and other

85
computer contaminants, would also amount to criminal offence of mischief. If the
essentials of mischief are satisfied it would be an offence too.

Thus, the Indian Penal Code almost covers various cyber crimes, but
considering the needs and development along with the information Technology Act
certain important amendments made in Indian Penal Code in 2000. The amendments
are sought to bring the paperless transactions under the preview of conventional
criminal law. This amendment is suitable in the age of electronic commerce. Due to
amendment the Act eliminated the basic requirement of paperless record and
documents because substantive as well as procedural law, Indian Penal code, 1860,
Indian Evidence Act, 1872 and even Criminal Procedure Code.

In Indian Penal Code the certain words as like ‘computer resources’ or

‘electronic record’ are inserted in various sections as like section 119,167,173,175 etc.
Thus, the Indian Penal Code covers the cyber crime. Even the Criminal Law
Amendment Act 2013 has inserted certain sections, which are covering the offences
which are going to be committed by using the computer or any communication
device. Section 354 C deals with voyeurism and Section 354 stalking, these offences
are subjected to the internet and communication device. Therefore the cyber crime
though new kind of offences are subjected to the Indian Penal code. If we see the
Section 354D. it is as following

Sec. 354D. Stalking53 – (1) Any man who-

(i) Follows a woman and contacts, or attempts to contact such woman to foster
personal interaction repeatedly despite a clear indication of disinterest by such
woman; or

(ii) Monitors the use by a woman of the internet, email or any other form of
electronic communication, commits the offence of stalking.

Provided that such conduct shall not amount to stalking if the man who
pursued it proves that-

(i) It was pursued for the purpose of preventing or detecting crime and the man
accused of stalking had been entrusted with the responsibility of prevention
and detection of crime by the State; or

53
Section 354D, Indian Penal Code, 1860.

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(ii) It was pursued under any law or to comply with any condition or requirement
imposed by any person under any law; or

(iii) In the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first

conviction with imprisonment of either description for a term which may extend to
three years, and shall also be liable to fine; and be punished on a second or subsequent
conviction, with imprisonment of either description for a term which may extend to
five years, and shall also be liable to fine.

Thus, the Indian penal code covers the cyber crime. There are various well
known cyber crimes, which are not contended in Information Technology Act, But
that covers in the Indian Peal Code.

Cyber crimes in Indian Penal Code

(a) Cyber Stalking

There is no universally accepted definition of cyber Stalking, it is generally

defined as the repeated acts of harassment or threatening behavior of the cyber
criminal towards the victim by using Internet services. Stalking in General terms can
be referred to as the repeated acts of harassment targeting the victim such as following
the victim, making harassing phone calls, killing the victims pet, vandalizing victims
property, leaving written messages or objects. Stalking may be followed by serious
violent acts such as physical harms to the victim. It all depends on the course of
conduct of the stalker. It is made punishable under section 354D of IPC.

(b) Cyber squatting

Cyber squatting is the obtaining of a domain name in order to seek payment

from the owner of the trademark, (including business name, trade name, or brand
name), and may include typo squatting (where one letter is different). A trademark
owner can prevail in a cyber squatting action by showing that the defendant, in bad
faith and with intent to profit, registered a domain name consisting of the plaintiff's
distinctive trademark. Factors to determine whether bad faith exists are the extent to
which the domain name contains the registrant's legal name, prior use of the domain
name in connection with the sale of goods and services, intent to divert customers
from one site to another and use of false registration information and the registrant's

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offer to sell the domain name back to the trademark owner for more than out-of -
pocket expenses.

(c) Data Diddling

This kind of attack involves altering the raw data just before a computer
processes it and then changing it back after the processing is completed.

(d) Cyber Defamation

Cyber defamation is not too much different than the defamation provided in
Sec.499 of IPC .it is nothing but any derogatory statement, which designed to injure a
person's business or reputation, constitutes cyber defamation. Defamation can be
accomplished as libel or slander. Cyber defamation occurs when defamation takes
place with the help of computers or the Internet, as like, someone publishes
defamatory matter about someone on a website or sends e-mails containing
defamatory information to all of that person’s friends.

(e) Trojan Attack

A Trojan, the program is aptly called an unauthorized program which

functions from inside what seems to be an authorized program, thereby concealing
what it is actually doing.

(f) Forgery

Counterfeit currency notes, postage and revenue stamps, mark sheets etc can
be forged using sophisticated computers, printers and scanners. It is very difficult to
control such attacks. For e.g. across the country students buy forged mark sheets for
heavy sums to deposit in college.

(g) Financial crimes

This would include cheating, credit card frauds, money laundering etc. such
crimes are punishable under both IPC and IT Act. Therefore when suck crimes takes
place, both laws can be attracted. A leading Bank in India was cheated to the extent
of 1.39 corers due to misappropriation of funds by manipulation of computer records
regarding debit and credit accounts.

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(h) Internet time theft

It is nothing but one kind of cheating, where the internet is tool for committing
this crime. This can notes the usage by an unauthorized person of the Internet hours
paid for by another person. This kind of cyber crime was unheard until the victim
reported it. This offence is usually covered under IPC and the Indian Telegraph Act.

(i) Virus/worm attack

Virus is a program that attaches it selves to a computer or a file and then

circulates to other files and to other computers on a network. They usually affect the
data on a computer, either by altering or by deleting it. Worms, unlike viruses do not
need the host to attach themselves They merely make functional copies of themselves
and do this repeatedly until they eat up all the available space on a computer's
memory. This is one kind of trespass in the conventional crime. Though it is purely a
cyber crime, It covers under the Indian Penal code.

(j) E-mail spoofing

It is a kind of e-mail that appears to originate from one source although it has
actually been sent from another source. Such kind of crime can be done for reasons
like defaming a person or for monetary gain etc. E.g. if A sends email to B’s friend
containing ill about him by spoofing B’s email address, this could result in ending of
relations between B and his friends.

(k) Email bombing

Email bombing means sending large amount of mails to the victims as a result
of which their account or mail server crashes. The victims of email bombing can vary
from individuals to companies and even the email service provider. This is one kind
of the mischief, where in the account or server is subject to destructs.

(l) Salami attack

This is basically related to finance and therefore the main victims of this crime
are the financial institutions. This attack has a unique quality that the alteration is so
insignificant that in a single case it would go completely unnoticed. E.g. a bank
employee inserts a program whereby a meager sum of Rs 3 is deducted from
customers account. Such a small amount will not be noticeable at all. However, due

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such merger from all the account holders collect huge amount. This is purely a
criminal breach of contract.

(m) Web Jacking

This term has taken from the word hijacking. Once a website is web jacked the
owner of the site looses all control over it. The person gaining such kind of an access
is called a hacker who may even alter or destroy any information on the site. As it is
one kind of hacking, but the IT Act has not use the word hacking specially, but deals
with the various kind of unauthorized access or tampering with the computer
resources, IT Act cannot cover all kind of hacking therefore IPC is generally
applicable to such kind of the unauthorized access.54

These are the offences, which are subject to the Indian Penal code and without
the general principles of criminal law and specially Indian Penal Code; cyber law
cannot work in India. However, the nature of offences changes, the base of the crime
is quite same. Therefore, IPC is having wider scope even in conventional crime and
the cyber crime in India.

3. Indian Evidence Act and Criminal procedure Code

These are two important procedural laws in Indian legal system. Both are
dealing with the procedure of criminal proceeding. Due to increasing crimes of fraud
through the computer and internet, these Act are also required to amend and make
suitable for the information technology age. Considering the need equired changes
have been made in the Indian Evidence Act, Indian Penal Code and Criminal
Procedure Code by the Indian Parliament on December 23, 2008 with the passing of
Amended IT Bill 2006. In Indian Evidence Act, Section 3 relating to interpretation
clause words 'Digital Signature' and 'Digital Signature Certificate', the words
'Electronic Signature' and 'Electronic Signature Certificate' are substituted.

In Criminal Procedure Code, after Section 198 A55, Section 198 B has been
inserted according to which, "No Court shall take cognizance of an offence
punishable under Sections 417, 419 and 502 of the Indian Penal Code, except upon a
complaint made by the person aggrieved by the offence". Moreover in the Indian
Penal Code the meaning of some words like "offences" and "computer resource" has

54
www.mondaq.com// Article by Rajkumar Dubey last access on dated 20/3/15 at 7.15 pm.
55
Section 198 A of Cr. P.C. 1973

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been made more exhaustive which take colour from the IT Act, 2000. It shows that
India is successful in facing new challenges of IT. Many amendments have been made
in the Copy Right Act on the argument that certain knowledge should be treated as
private property and capable of 'Ownership'. Considering the requirement of society
now, cyber law is providing a worth in administration of justice.

4. Cyber laws in India.

Apart from the Information Technology Act and Indian Penal Code, there are
certain laws and regulations, which deal with the cyber crime. Even certain civil laws
are relevant in certain misuse in cyber space. However, generally the fraud is there in
cyber crime, therefore it concerns with the criminal law, otherwise even Law of Tort
is also relevant and can provide the remedy to unauthorized use of the computer and
internet. Apart from The Information Technology Act 2000 and Indian Penal Code
1860, there are various other laws relating to cyber crime in India. They are as
following.

1. Common Law (governed by general principles of law)

2. The Bankers’ Book Evidence Act, 1891

3. The Reserve Bank of India Act, 1934

4. The Information Technology (Amendment) Act, 2008 and 2009

5. The Information Technology (Removal of difficulties) Order, 2002

6. The Information Technology (Certifying Authorities) Rules, 2000

7. The Information Technology (Certifying Authorities) Regulations, 2001

8. The Information Technology (Securities Procedure) Rules, 2004

9. Various laws relating to IPRs.

Thus, the Indian legal system is having various laws concerning the cyber
crimes. But the nature of the cyber crime is technical, therefore it require the technical
process to execute the criminal law in proper sense. The technical process is lacking
in Indian legal system, therefore though the substantive criminal law is sufficient, but
due to lacking in procedural aspect its unable to execute it in India. The basic problem
in the cyber crime is that, there is specific manner by which the internet can be
misuse; it is on the criminals, that they always misuse it in different manner, therefore

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it is not possible to the legal system to meet with the need. Apart from this, the nature
of cyber crime is transnational, therefore it required the international co-operation.
Mere making laws is not sufficient, cyber law cannot work without the international
co-operation. The Information Technology Act 2000 and all the related laws having
provision regarding the transnational jurisdiction, but execution is possible when all
countries in the world recognized that act as a crime, and allow the proceeding on that
aspect.

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