CYBER LAWS AND ELECTRONIC EVIDENCE

 INTRODUCTION
The Term „Cyber Crime‟ needs no introduction in today‟s E-world. In this world, where
everything is available at a click, crimes are also been committed at a click. Cyber Crime thus is
the darker side of technology. It is a Crime where the computer is either a tool or a target. The
term WWW which stands for World Wide Web has now become World Wide Worry because of
mushroom growth in cyber crimes. Crime in a developing nation is a hindrance to its
development. It not only adversely affects all the members of the society but it also pulls down
the economic growth of the country. Computer Technology provided a boost to the human life. It
made the life of human being easier and comfortable. It not only added speed to the life of
human being, but it also added accuracy and efficiency. But this computer was exploited by the
criminals. This illegal use of computers for commission of crime leads to Cyber Crime. To
combat Cyber Crime India got armed herself with The Information Technology Act 2000. This
act got drastically amended in year 2008. The Amended Information Technology Act is not only
effective than the previous Act it is more powerful and stringent than the previous one.

 HISTORY OF CYBER LAWS IN INDIA

The information Technology Act is an outcome of the resolution dated 30th January 1997 of the
General Assembly of the United Nations, which adopted the Model Law on Electronic
Commerce, adopted the Model Law on Electronic Commerce on International Trade Law. This
resolution recommended, inter alia, that all states give favourable consideration to the said
Model Law while revising enacting new law, so that uniformity may be observed in the laws, of
the various cyber-nations, applicable to alternatives to paper based methods of communication
and storage of information.

The Department of Electronics (DoE) in July 1998 drafted the bill. However, it could only be
introduced in the House on December 16, 1999 (after a gap of almost one and a half years) when
the new IT Ministry was formed. It underwent substantial alteration, with the Commerce
Ministry making suggestions related to e-commerce and matters pertaining to World Trade
Organization (WTO) obligations. The Ministry of Law and Company Affairs then vetted this
joint draft.

The Union Cabinet approved the bill on May 13, 2000 and on May 17, 2000, both the houses of
the Indian Parliament passed the Information Technology Bill. The Bill received the assent of the
President on 9th June 2000 and came to be known as the Information Technology Act, 2000. The
Act came into force on 17th October 2000.

With the passage of time, as technology developed further and new methods of committing
crime using Internet & computers surfaced, the need was felt to amend the IT Act, 2000 to insert
new kinds of cyber offences and plug in other loopholes that posed hurdles in the effective
enforcement of the IT Act, 2000.

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This led to the passage of the Information Technology (Amendment) Act, 2008 which was made
effective from 27 October 2009. The IT (Amendment) Act, 2008 has brought marked changes in
the IT Act, 2000 on several counts.

 STATUTORY FRAMEWORK : INFORMATION TECHNOLOGY ACT 2000

 Structure of Act

The Act totally has 13 chapters and 90 sections (the last four sections namely sections 91 to 94 in
the Information Technology Act , 2000 dealt with the amendments to the four Acts namely the
Indian Penal Code 1860, The Indian Evidence Act 1872, The Bankers‟ Books Evidence Act
1891 and the Reserve Bank of India Act 1934). The Act begins with preliminary and definitions
and from thereon the chapters that follow deal with authentication of electronic records, digital
signatures, electronic signatures etc. Elaborate procedures for certifying authorities (for digital
certificates as per Information Technology Act -2000 and since replaced by electronic signatures
in the Information Technology Act Amendment -2008) have been spelt out. The civil offence of
data theft and the process of adjudication and appellate procedures have been described. Then
the Act goes on to define and describe some of the well-known cyber crimes and lays down the
punishments therefore. Then the concept of due diligence, role of intermediaries and some
miscellaneous provisions have been described. Rules and procedures mentioned in the Act have
also been laid down in a phased manner, with the latest one on the definition of private and
sensitive personal data and the role of intermediaries, due diligence etc., being defined as
recently as April 2011.

 Object of the Act

The object of The Information Technology Act, 2000 as defined therein is as under :-

"to provide legal recognition for transactions carried out by means of electronic data interchange
and other means of electronic communication, commonly referred to as "electronic methods of
communication and storage of information, to facilitate electronic filing of documents with the
Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act,
1872, the Banker's Book Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for
matters connected therewith or incidental thereto."

 Applicability

The Act extends to the whole of India and except as otherwise provided, it applies to also any
offence or contravention there under committed outside India by any person. There are some
specific exclusions to the Act (i.e. where it is not applicable) as detailed in the First Schedule,
stated below:

• Negotiable instrument (other than a cheque) as defined in Section 13 of the Negotiable

Instruments Act, 1881;

• Power-of-attorney as defined in Section 1A of the Powers-of-Attorney Act, 1882;

• Trust as defined in Section 3 of the Indian Trusts Act, 1882

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• Will as defined in clause (h) of Section 2 of the Indian Succession Act, 1925 including any
other testamentary disposition

• Any contract for the sale or conveyance of immovable property or any interest in such
property;

• Any such class of documents or transactions as may be notified by the Central Government.

 Highlights of the Act

Chapter-II of the Act specifically stipulates that any subscriber may authenticate an electronic
record by affixing his digital signature. It further states that any person can verify an electronic
record by the use of a public key of the subscriber.

Chapter III of the Act details about the electronic governance and provides inter alia amongst
others that where any law provides that information or any other matter shall be in writing or in
typewritten or printed form, then, notwithstanding anything contained in such law, such
requirement shall be deemed to have been satisfied if such information or matter is (a) rendered
or made available in an electronic form; and

(b) accessible so as to be usable for a subsequent reference

The said chapter also details the legal recognition of digital signatures.

Chapter IV of the said Act gives a scheme for the regulation of certifying authorities. The Act
envisages a Controller who shall supervise the Certifying Authorities as also laying down
standards and conditions governing the Certifying Authorities. The Controller will also specify
the various forms and content of digital signature certificates. The Act accepts the need for
recognizing foreign certifying authorities and it further details the various provisions for the
issuance of license to issue digital signature certificates.

Chapter VII of the Act details the scheme of things relating to digital signature certificates. The
duties of subscribers are also enshrined in the Act.

Chapter IX talks about penalties and adjudication for various offences. The penalties for
damage to a computer system have been fixed as damages by way of compensation not
exceeding Rs 1,00,00,000. The Act talks of appointment of an officer not below the rank of a
Director to the Government of India or an equivalent officer of a state government as an
Adjudicating Officer to judge whether any person has made a contravention of any of the
provisions of the Act. The officer has been given the powers of a civil court.

The Act in Chapter X talks of the establishment of Cyber Regulations Appellate Tribunal, an
appellate body where appeals against the orders passed by the Adjudicating Officers shall be
preferred.

Chapter XI of the Act talks about various offences, which could be investigated only by a police
officer not below the rank of Deputy Superintendent of Police. These offences include tampering

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with computer source documents, publishing of information that is obscene in electronic form
and hacking.

Hacking has been properly defined in Section 66 as, "Whoever with the intent to cause or
knowing that he is likely to cause wrongful loss or damage to the public or any person destroys
or deletes or alters any information residing in a computer resource or diminishes its value or
utility or affects it injuriously by any means, commits hacking." Further for the first time,
punishment for hacking as a cyber crime prescribed in the form of imprisonment upto 3 years or
with fine which may extend to Rs. 2,00,000/- or with both. This is a welcome measure as
hacking has assumed tremendous importance in the present day scenario. On previous occasions,
the web sites of the Government have been hacked into but no legal provision within the existing
legislation could be invoked to cover "hacking" as a cyber crime. It shall now be possible to try
and punish hackers under section 66 of the Information Technology Act , 2000.

The said Act also provides for the constitution of the Cyber Regulations Advisory Committee
which shall advice the government as regards any rules or for any other purpose connected with
the said act. The said Act also has four Schedules which amend the Indian Penal Code, 1860, the
Indian Evidence Act, 1872, The Bankers' Books Evidence Act, 1891, The Reserve Bank of India
Act, 1934 to make them in tune with the provisions of the Information Technology Act , 2000.

 TYPES OF CYBER CRIME

Cybercrimes can be basically divided into four major categories:

1. Cyber Crimes against persons.

Cyber crimes committed against persons include various crimes like transmission of child-
pornography, cyber porn, harassment of a person using a computer such as through e-mail,
fake escrow scams. The trafficking, distribution, posting, and dissemination of obscene
material including pornography and indecent exposure, constitutes one of the most important
Cyber crimes known today. The potential harm of such a crime to humanity can hardly be
explained. Cyber-harassment is a distinct Cyber crime. Various kinds of harassment can and
do occur in cyberspace, or through the use of cyberspace. Different types of harassment can
be sexual, racial, religious, or other. Persons perpetuating such harassment are also guilty of
cyber crimes. Cyber harassment as a crime also brings us to another related area of violation
of privacy of citizens. Violation of privacy of online citizens is a Cyber crime of a grave
nature. No one likes any other person invading the invaluable and extremely touchy area of
his or her own privacy which the medium of internet grants to the citizen. There are certain
offences which affect the personality of individuals can be defined as:
Harassment via E-Mails: This is very common type of harassment through sending letters,
attachments of files & folders i.e. via e-mails. At present harassment is common as usage of
social sites i.e. Facebook, Twitter, Orkut etc. increasing day by day.
Cyber-Stalking: It is expressed or implied a physical threat that creates fear through the use
to computer technology such as internet, e-mail, phones, text messages, webcam, websites or
videos.

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 Defamation: It involves any person with intent to lower down the dignity of the person by
hacking his mail account and sending some mails with using vulgar language to unknown
persons mail account.
Hacking: It means unauthorized control/access over computer system and act of hacking
completely destroys the whole data as well as computer programs. Hackers usually hacks
telecommunication and mobile network.
Cracking: It is act of breaking into your computer systems without your knowledge and
consent and has tampered with precious confidential data and information.
E-Mail Spoofing: A spoofed e-mail may be said to be one, which misrepresents its origin. It
shows it‟s origin to be different from which actually it originates.
SMS Spoofing: Spoofing is a blocking through spam which means the unwanted uninvited
messages. Here a offender steals identity of another person in the form of mobile phone
number and sending SMS via internet and receiver gets the SMS from the mobile phone
number of the victim. It is very serious cyber crime against any individual. Carding: It
means false ATM cards i.e. Debit and Credit cards used by criminals for their monetary
benefits through withdrawing money from the victim‟s bank account. There is always
unauthorized use of ATM cards in this type of cyber crimes.
Cheating & Fraud: It means the person who is doing the act of cyber crime i.e. stealing
password and data storage has done it with having guilty mind which leads to fraud and
cheating.
Child Pornography: In this cyber crime defaulters create, distribute, or access materials
that sexually exploit underage children.
Assault by Threat: It refers to threatening a person with fear for their lives or lives of their
families through the use of a computer network i.e. E-mail, videos or phones.

2. Cyber Crimes against property.

The second category of Cyber-crimes is that of Cyber crimes against all forms of property.
These crimes include computer vandalism (destruction of others' property) and transmission
of harmful viruses or programs. A Mumbai-based upstart engineering company lost a say
and much money in the business when the rival company, an industry major, stole the
technical database from their computers with the help of a corporate cyber spy software.
There are certain offences which affects persons property which are as follows:
Intellectual Property Crimes: Intellectual property consists of a bunch of rights. Any
unlawful act by which the owner is deprived completely or partially of his rights is an crime.
The most common type of IPR violation may be said to be software piracy, infringement of
copyright, trademark, patents, designs and service mark violation, theft of computer source
code, etc.
Cyber Squatting: It involves two persons claiming for the same Domain Name either by
claiming that they had registered the name first on by right of using it before the other or
using something similar to that previously. For example two similar names i.e.
www.yahoo.com and www.yahhoo.com.

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 Cyber Vandalism: Vandalism means deliberately damaging property of another. Thus cyber
vandalism means destroying or damaging the data or information stored in computer when a
network service is stopped or disrupted. It may include within its purview any kind of
physical harm done to the computer of any person. These acts may take the form of the theft
of a computer, some part of a computer or a peripheral or a device attached to the computer.
Hacking Computer System: Hackers attacks those included Famous Twitter, blogging
platform by unauthorized access/control over the computer. Due to the hacking activity there
will be loss of data as well as computer system. Also research especially indicates that those
attacks were not mainly intended for financial gain too and to diminish the reputation of
particular person or company. As in April, 2013 MMM India attacked by hackers.
Transmitting Virus: Viruses are programs written by programmers that attach themselves to
a computer or a file and then circulate themselves to other files and to other computers on a
network. They mainly affect the data on a computer, either by altering or deleting it. Worm
attacks plays major role in affecting the computer system of the individuals.
Cyber Trespass: It means to access someone‟s computer or network without the right
authorization of the owner and disturb, alter, misuse, or damage data or system by using
wireless internet connection.
Internet Time Thefts: Basically, Internet time theft comes under hacking. It is the use by an
unauthorized person, of the Internet hours paid for by another person. The person who gets
access to someone else‟s ISP user ID and password, either by hacking or by gaining access
to it by illegal means, uses it to access the Internet without the other person‟s knowledge.
You can identify time theft if your Internet time has to be recharged often, despite infrequent
usage.
3. Cyber Crimes against government
The third category of Cyber-crimes relates to Cyber crimes against Government. Cyber
terrorism is one distinct kind of crime in this category. The growth of internet has shown that
the medium of Cyberspace is being used by individuals and groups to threaten the
international governments as also to threaten the citizens of a country. This crime manifests
itself into terrorism when an individual "cracks" into a government or military maintained
website. The Parliament attack in Delhi and the recent Mumbai attack fall under this
category.
4. Cyber Crimes Against Society at large:
An unlawful act done with the intention of causing harm to the cyberspace will affect large
number of persons. These offences include:
Child Pornography: In this act there is use of computer networks to create, distribute, or
access materials that sexually exploit underage children. It also includes activities
concerning indecent exposure and obscenity.
Cyber Trafficking: It involves trafficking in drugs, human beings, arms weapons etc. which
affects large number of persons. Trafficking in the cybercrime is also a gravest crime.
Online Gambling: Online fraud and cheating is one of the most lucrative businesses that are
growing today in the cyber space. In India a lot of betting and gambling is done on the name

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of cricket through computer and internet. There are many cases that have come to light are
those pertaining to credit card crimes, contractual crimes, offering jobs, etc.
Financial Crimes: This type of offence is common as there is huge growth in the users of
networking sites and phone networking where culprit will try to attack by sending bogus
mails or messages through internet. Ex: Using credit cards by obtaining password illegally.
Forgery: It means to deceive large number of persons by sending threatening mails as online
business transactions are becoming the habitual need of today‟s life style.

 PARALLEL PROVISIONS IN THE IPC AND IT ACT

Many of the cyber-crimes penalised by the IPC and the IT Act have the same ingredients
and even nomenclature. Here are a few examples:
Hacking and Data Theft: Sections 43 and 66 of the IT Act penalise a number of activities
ranging from hacking into a computer network, data theft, introducing and spreading viruses
through computer networks, damaging computers or computer networks or computer
programmes, disrupting any computer or computer system or computer network, denying an
authorised person access to a computer or computer network, damaging or destroying
information residing in a computer etc. The maximum punishment for the above offences is
imprisonment of up to 3 (three) years or a fine or Rs. 5,00,000 (Rupees five lac) or both.
Section 378 of the IPC relating to "theft" of movable property will apply to the theft of any
data, online or otherwise, since section 22 of the IPC states that the words "movable
property" are intended to include corporeal property of every description, except land and
things attached to the earth or permanently fastened to anything which is attached to the
earth. The maximum punishment for theft under section 378 of the IPC is imprisonment of
up to 3 (three) years or a fine or both.
It may be argued that the word "corporeal" which means 'physical' or 'material' would
exclude digital properties from the ambit of the aforesaid section 378 of the IPC. The
counter argument would be that the drafters intended to cover properties of every
description, except land and things attached to the earth or permanently fastened to anything
which is attached to the earth.
Section 424 of the IPC states that "whoever dishonestly or fraudulently conceals or removes
any property of himself or any other person, or dishonestly or fraudulently assists in the
concealment or removal thereof, or dishonestly releases any demand or claim to which he is
entitled, shall be punished with imprisonment of either description 1 for a term which may
extend to 2 (two) years, or with fine, or with both." This aforementioned section will also
apply to data theft. The maximum punishment under section 424 is imprisonment of up to 2
(two) years or a fine or both.
Section 425 of the IPC deals with mischief and states that "whoever with intent to cause, or
knowing that he is likely to cause, wrongful loss or damage to the public or to any person,
causes the destruction of any property, or any such change in any property or in the
situation thereof as destroys or diminishes its value or utility, or affects it injuriously,
commits mischief". Needless to say, damaging computer systems and even denying access to

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a computer system will fall within the aforesaid section 425 of the IPC. The maximum
punishment for mischief as per section 426 of the IPC is imprisonment of up to 3 (three)
months or a fine or both.
Receipt of stolen property: Section 66B of the IT Act prescribes punishment for dishonestly
receiving any stolen computer resource or communication device. This section requires that
the person receiving the stolen property ought to have done so dishonestly or should have
reason to believe that it was stolen property. The punishment for this offence under Section
66B of the IT Act is imprisonment of up to 3 (three) years or a fine of up to Rs. 1,00,000
(Rupees one lac) or both.
Section 411 of the IPC too prescribes punishment for dishonestly receiving stolen property
and is worded in a manner that is almost identical to section 66B of the IT Act. The
punishment under section 411 of the IPC is imprisonment of either description for a term of
up to 3 (three) years, or with fine, or with both. Please note that the only difference in the
prescribed punishments is that under the IPC, there is no maximum cap on the fine.
Identity theft and cheating by personation: Section 66C of the IT Act prescribes
punishment for identity theft and provides that anyone who fraudulently or dishonestly
makes use of the electronic signature, password or any other unique identification feature of
any other person shall be punished with imprisonment of either description for a term which
may extend to 3 (three) years and shall also be liable to fine which may extend to Rs.
1,00,000 (Rupees one lac).
Section 66D of the IT Act prescribes punishment for 'cheating by personation by using
computer resource' and provides that any person who by means of any communication
device or computer resource cheats by personation, shall be punished with imprisonment of
either description for a term which may extend to 3 (three) years and shall also be liable to
fine which may extend to Rs. 1,00,000 (Rupees one lac).
Section 419 of the IPC also prescribes punishment for 'cheating by personation' and provides
that any person who cheats by personation shall be punished with imprisonment of either
description for a term which may extend to 3 (three) years or with a fine or with both. A
person is said to be guilty of 'cheating by personation' if such person cheats by pretending to
be some other person, or by knowingly substituting one person for another, or representing
that he or any other person is a person other than he or such other person really is.
The provisions of sections 463, 465 and 468 of the IPC dealing with forgery and "forgery for
the purpose of cheating", may also be applicable in a case of identity theft. Section 468 of
the IPC prescribes punishment for forgery for the purpose of cheating and provides a
punishment of imprisonment of either description for a term which may extend to 7 (seven)
years and also a fine. Forgery has been defined in section 463 of the IPC to mean the making
of a false document or part thereof with the intent to cause damage or injury, to the public or
to any person, or to support any claim or title, or to cause any person to part with property,
or to enter into any express or implied contract, or with intent to commit fraud or that fraud
may be committed.
In this context, reference may also be made to section 420 of the IPC that provides that any
person who cheats and thereby dishonestly induces the person deceived to deliver any

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property to any person, or to make, alter or destroy the whole or any part of a valuable
security, or anything which is signed or sealed, and which is capable of being converted into
a valuable security shall be punished with imprisonment of either description for a term
which may extend to 7 (seven) years, and shall also be liable to fine.
The only difference between the punishments prescribed under sections 66C and 66D of the
IT Act and section 419 of the IPC is that there is no maximum cap on the fine prescribed
under the IPC. However, the punishment under section 468 is much higher in that the
imprisonment mat extend to 7 (seven) years. Further, whilst the IT Act contemplates both
the imposition of a fine and imprisonment, the IPC uses the word 'or' indicating that the
offence could be punished with imprisonment or by imposing a fine. Most importantly, the
fundamental distinction between the IPC and the IT Act in relation to the offence of identity
theft is that the latter requires the offence to be committed with the help of a computer
resource.
Obscenity: Sections 67, 67A and 67B of the IT Act prescribe punishment for publishing or
transmitting, in electronic form: (i) obscene material; (ii) material containing sexually
explicit act, etc.; and (iii) material depicting children in sexually explicit act, etc.
respectively. The punishment prescribed for an offence under section 67 of the IT Act is, on
the first conviction, imprisonment of either description for a term which may extend to 3
(three) years, to be accompanied by a fine which may extend to Rs. 5,00,000 (Rupees five
lac), and in the event of a second or subsequent conviction, imprisonment of either
description for a term which may extend to 5 (five) years, to be accompanied by a fine
which may extend to Rs. 10,00,000 (Rupees ten lac). The punishment prescribed for
offences under sections 67A and 67B of the IT Act is on first conviction, imprisonment of
either description for a term which may extend to 5 (five) years, to be accompanied by a fine
which may extend to Rs. 10,00,000 (Rupees ten lac) and in the event of second or
subsequent conviction, imprisonment of either description for a term which may extend to 7
(seven) years and also with fine which may extend to Rs. 10,00,000 (Rupees ten lac).
The provisions of sections 292 and 294 of the IPC would also be applicable for offences of
the nature described under sections 67, 67A and 67B of the IT Act. Section 292 of the IPC
provides that any person who, inter alia, sells, distributes, publicly exhibits or in any manner
puts into circulation or has in his possession any obscene book, pamphlet, paper, drawing,
painting, representation or figure or any other obscene object whatsoever shall be punishable
on a first conviction with imprisonment of either description for a term which may extend to
2 (two) years, and with fine which may extend to Rs. 2,000 (Rupees two thousand) and, in
the event of a second or subsequent conviction, with imprisonment of either description for a
term which may extend to 5 (five) years, to be accompanied by a fine which may extend to
Rs. 5,000 (Rupees five thousand).
Section 294 of the IPC provides that any person who, to the annoyance of others, does any
obscene act in any public place, or sings, recites or utters any obscene song, ballad or words,
in or near any public place, shall be punished with imprisonment of either description for a
term which may extend to 3 (three) months, or with fine, or with both.

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  Cyber crimes not provided for in the IPC
The following cyber-crimes penalised by the IT Act do not have an equivalent in the IPC.
Section 43(h) of the IT Act: Section 43(h) read with section 66 of the IT Act penalises an
individual who charges the services availed of by a person to the account of another person
by tampering with or manipulating any computer, computer system, or computer network. A
person who tampers with the computer system of an electricity supplier and causes his
neighbour to pay for his electricity consumption would fall under the aforesaid section 43(h)
of the IT Act for which there is no equivalent provision in the IPC.
Section 65 of the IT Act: Section 65 of the IT Act prescribes punishment for tampering with
computer source documents and provides that any person who knowingly or intentionally
conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy,
or alter any computer source code (i.e. a listing of programmes, computer commands, design
and layout and programme analysis of computer resource in any form) used for a computer,
computer programme, computer system or computer network, when the computer source
code is required to be kept or maintained by law for the time being in force, shall be
punishable with imprisonment for up to 3 (three) years or with a fine which may extend to
Rs. 3,00,000 (Rupees lac) or with both.
To a certain extent, section 409 of the IPC overlaps with section 65 of the IT Act. Section
409 of the IPC provides that any person who is in any manner entrusted with property, or
with any dominion over property in his capacity as a public servant or in the way of his
business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of
trust in respect of that property, shall be punished with imprisonment for life or with
imprisonment of either description for a term which may extend to 10 (ten) years, and shall
also be liable to a fine. However, section 65 of the IT Act does not require that the person
who tampers with or damages or destroys computer source documents should have been
entrusted with such source code. Under section 409 of the IPC, criminal breach of trust
should have been committed by someone to whom the property was entrusted.
Violation of privacy: Section 66E of the IT Act prescribes punishment for violation of
privacy and provides that any person who intentionally or knowingly captures, publishes or
transmits the image of a private area of any person without his or her consent, under
circumstances violating the privacy of that person, shall be punished with imprisonment
which may extend to 3 (three) years or with fine not exceeding Rs. 2,00,000 (Rupees two
lac) or with both.
There is no provision in the IPC that mirrors Section 66E of the IT Act, though sections 292
and 509 of the IPC do cover this offence partially.
Section 292 of the IPC has been discussed above. Section 509 of the IPC provides that if any
person intending to insult the modesty of any woman, utters any word, makes any sound or
gesture, or exhibits any object, intending that such word or sound shall be heard, or that such
gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman,
such person shall be punished with simple imprisonment for a term which may extend to 1

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(one) year, or with fine, or with both. Unlike section 66E of the IT Act which applies to
victims of both genders, section 509 of the IPC applies only if the victim is a woman.
Section 67C of the IT Act: Section 67C of the IT Act requires an 'intermediary' to preserve
and retain such information as may be specified for such duration and in such manner and
format as the Central Government may prescribe. The section further provides that any
intermediary who intentionally or knowingly contravenes this requirement shall be punished
with imprisonment for a term which may extend to 3 (three) years and also be liable to a
fine. An 'intermediary' with respect to any particular electronic record, has been defined in
the IT Act to mean any person who on behalf of another person receives, stores or transmits
that record or provides any service with respect to that record and includes telecom service
providers, network service providers, internet service providers, web-hosting service
providers, search engines, online payment sites, online-auction sites, online-market places
and cyber cafes. There is no corresponding provision in the IPC.
Cyber terrorism: Section 66F of the IT Act prescribes punishment for cyber terrorism.
Whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to
strike terror in the people or any section of the people, denies or causes the denial of access
to any person authorized to access a computer resource, or attempts to penetrate or access a
computer resource without authorisation or exceeding authorised access, or introduces or
causes the introduction of any computer contaminant, and by means of such conduct causes
or is likely to cause death or injuries to persons or damage to or destruction of property or
disrupts or knowing that it is likely to cause damage or disruption of supplies or services
essential to the life of the community or adversely affect critical information infrastructure,
is guilty of 'cyber terrorism'. Whoever knowingly or intentionally penetrates or accesses a
computer resource without authorisation or exceeding authorised access, and by means of
such conduct obtains access to information, data or computer database that is restricted for
reasons for the security of the State or foreign relations, or any restricted information, data or
computer database, with reasons to believe that such information, data or computer database
so obtained may be used to cause or likely to cause injury to the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with foreign States, public
order, decency or morality, or in relation to contempt of court, defamation or incitement to
an offence, or to the advantage of any foreign nation, group of individuals or otherwise, is
also guilty of 'cyber terrorism'.
Whoever commits or conspires to commit cyber terrorism shall be punishable with
imprisonment which may extend to imprisonment for life.
There is no provision in the IPC that mirrors section 66F of the IT Act, though section 121
of the IPC (waging, or attempting to wage war, or abetting waging of war, against the
Government of India) does cover this offence partially.

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  NATURE OF OFFENCE-WHETHER COMPOUNDABLE, COGNIZABLE AND

BAILABLE
Section 77A of the IT Act provides that, subject to certain exceptions, all offences under the
IT Act for which the punishment is imprisonment for a term of 3 (three) years or less, are
compoundable. The provisions of sections 265B and 265C of the Code of Criminal
Procedure, 1973 ("CrPC") shall apply with respect to such compounding.
Section 77B of the IT Act provides that notwithstanding anything contained in the CrPC, all
offences punishable with imprisonment of 3 (three) years and above under the IT Act shall
be cognizable and all offences punishable with imprisonment of 3 (three) years or less shall
be bailable.
Most of the cyber-crimes covered under the IT Act are punishable with imprisonment of 3
(three) years or less. The cyber-crimes which are punishable with imprisonment of more
than 3 (three) years are:
a. Publishing or transmitting obscene material in electronic form under section 67 of the IT
Act;
b. Publishing or transmitting of material containing sexually explicit act, etc., in electronic
form under section 67A of the IT Act;
c. Publishing or transmitting of material depicting children in sexually explicit act, etc., in
electronic form under section 67B of the IT Act; and
d. Cyber terrorism under section 66F of the IT Act.
All of the cyber-crimes under the IPC are bailable other than offences under section 420
(cheating and dishonestly inducing delivery of property), section 468 (forgery for the
purpose of cheating), section 411 (dishonestly receiving stolen property), section 378 (theft)
and section 409 (criminal breach of trust by public servant, or by banker, merchant or
agent), which are non-bailable.
Offences under sections 463 and 465 (forgery), sections 425 and 426 (mischief), section 468
(forgery for the purpose of cheating), section 469 (forgery for the purpose of harming
reputation) and section 292 (sale, etc., of obscene books, etc.) of the IPC are non-
compoundable offences while offences under sections 378 and 379 (theft), 420 (cheating
and dishonestly inducing delivery of property), sections 425 and 426 (mischief when the only
loss or damage caused is loss or damage to a private person), section 509 (word, gesture or
act intended to insult the modesty of a woman), section 411 (Dishonestly receiving stolen
property) and section 419 (Punishment for cheating by personation) of the IPC are
compoundable offences. Of these, offences under sections 420 and 509 can be compounded
only with the permission of the court. Most of the cyber crimes under the IPC are cognizable
other than the offences under sections 425 and 426 (mischief) and sections 463 and 465
(forgery) which are non-cognizable.
The overlap between the provisions of the IPC and the IT Act may sometimes lead to an
anomalous situation wherein certain offences are bailable under the IPC and not under the IT
Act and vice versa and certain offences are compoundable under the IPC and not under the
IT Act and vice versa. For instance, in case of hacking and data theft, offences under

12
sections 43 and 66 of the IT Act that are bailable and compoundable while offences under
section 378 of the IPC are non-bailable and offences under section 425 of the IPC are non-
compoundable. Further, in case of the offence of receipt of stolen property, the offence
under section 66B of the IT Act is bailable while the offence under section 411 of the IPC is
non-bailable. Similarly, in case of the offence of identity theft and cheating by personation,
the offences under sections 66C and 66D of the IT Act are compoundable and bailable while
the offences under sections 463, 465 and 468 of the IPC are non-compoundable and the
offences under sections 468 and 420 of the IPC are non-bailable. Finally, in case of
obscenity, the offences under sections 67, 67A and 67B of the IT Act are non-bailable while
the offences under section 292 and 294 of the IPC are bailable. This issue has been dealt
with by the Bombay High Court in the case of Gagan Harsh Sharma v. The State of
Maharashtra 2 (discussed below) wherein offences under sections 408 and 420 of the IPC
that are non-bailable and cannot be compounded other than with the permission of the court
were in conflict with offences under sections 43, 65 and 66 of the IT Act that are bailable
and compoundable.

 ROLE OF JUDICIARY IN EXPANDING CYBER CRIME JURISPRUDENCE

A. Google India Pvt Ltd. Vs.Vishaka Industries and Anr. AIR 2020 SC 350
The Apex Court of India herein rejected the plea of immunity against liability as internet
intermediary by Google India. Prior to the amendment to Section 79 of the Information
Technology Act made in 2009, the protection to a network service provider was only for
liability under the IT Act, this protection did not extend to liabilities arising under other
enactments.
Asbestos sheets are produced by Vishakha Industries, and there were articles published
by an individual “Ban Asbestos‟ in group which was hosted in the Google Groups
services provided by Google. Since the group was hosted by Google India, it was also
made a party to the suit. It was alleged that Google India has failed to take down the
articles which were hosted by the Google, even after several notices were served.
Google appealed under Section 482 of the Code of Criminal Procedure to the Andhra
Pradesh High Court seeking to quash the complaint claiming that no liability over the
defamatory article being an intermediary under Section 79 of the Information Technology
Act should be incurred by Google. This was claimed on the basis that it was neither an
author nor the publisher of the blog, in order to incur the liability.
The request to quash the proceeding was rejected by the High Court, explaining that
Google as an intermediary had failed to act on the notice provided against an
objectionable post when notified by the aggrieved person, hence under the IT Act Google
India shall incur liability as it did not “move its little finger” even after several notices
sent by the complainant. Due to the omission of acts by Google it could not claim any
exemption under the IT Act.
The Supreme Court held that the matter is deemed to be decided on the basis of Section
79 of the IT Act, prior to the amendment of 2009 as the complaint was filed before the

13
 amendment. After the amendment, the scope of protected for intermediaries has
increased, as it states that the intermediaries shall be granted exemption from liability
„notwithstanding anything contained in any law for the time being in force‟. The only
exception to seek protection is if the intermediary had “knowledge” of the objectionable
material. “Actual Knowledge” was dealt in the case of Shreya Singhal, to mean an order
from court or a competent authority under law. But the precedent of Shreya Singhal Case
can not be applicable as the complaint arose before the amendment.
The second contention that was raised before the Supreme Court of India was that Google
was not intermediary but only a subsidiary of Google LLC. The court opted to not
adjudicate this contention and said it was a matter for trial. The Supreme Court also set
aside the finding made by the High Court that Google had failed to act despite receiving
notice.
The Supreme Court mentioned that under Section 499 of the Indian Penal Code, which
states the liability arising for criminal defamation, no immunity could be claimed in
complaints which arose before the 2009 amendment in the court of law. The Bench
comprising of Justice Ashok Bhushan and Justice K M Joseph stated, “We hold that
Section 79 of the Act, prior to its substitution, did not protect an intermediary in regard to
the offence under Section 499/500 of the IPC”.
B. Sharat Babu Digumarti v. Govt. of NCT of Delhi AIR 2017 SC 150

While determining the question whether the appellant who has been discharged under
Section 67 of the IT Act could be proceeded under Section 292 IPC, the Bench of Dipak
Misra and Praffula C. Pant, JJ. held that when the Information Technology Act in various
provisions deals with obscenity in electronic form, it covers the offence under Section
292 IPC. It is to be noted that electronic forms of transmission is covered by the IT Act, a
special law and that a special law shall prevail over the general and prior laws.

The case dealt with an appeal against the High Court‟s order charging the appellant under
Section 292 IPC, despite the charges being dropped under Section 67 of the IT Act. The
appellant, senior manager of the intermediary, had been singularly framed under Section
292 IPC while the managing director of the intermediary has been discharged of all the
offences as per the decision in Aneeta Hada v. Godfather Travels and Tours (P) Ltd.,
(2008) 13 SCC 703. Counsel for the appellant urged that Section 79, as the language
suggested, keeping in view the paradigm of internet world where service providers of
platforms do not control and indeed cannot control the acts/omissions of primary,
secondary and tertiary users of such internet platforms, protected the intermediary till he
had the actual knowledge. Whereas counsel for the respondent pleaded that the role of
person in charge of the intermediary was extremely vital as it pertained to sale of obscene
material which was punishable under Section 292 IPC and not under Section 67 of the IT
Act.
The Court said that the offence in question related to electronic record and Section 67
clearly stipulated punishment for publishing, transmitting obscene materials in electronic
form. The said provision read with Sections 67-A and 67-B was a complete code, Section

14
 79 being an exception provision conferred protection to the individuals. Section 292 IPC
makes offence the sale of obscene books, etc. but once the offence has a nexus with the
electronic record the protection under Section 79 cannot be ignored and negated. The
Court quashed the criminal prosecution lodged against the appellant.

C. W.B. State Election Commission v. Communist Party of India (Marxist), 2018 SCC
OnLine SC 1137AIR2018 SC 3964
The Bench comprising of CJ Dipak Misra and AM Khanwilkar and Dr DY Chandrachud,
JJ., addressing the challenge to the Calcutta High Court‟s decision on issuing directions
for the acceptance of nominations in the electronic form by the West Bengal State
Election Commission, decided to set aside the impugned judgment and order of the High
Court.
The present appeal consisted of the facts that the candidate who wished to contest the
panchayat elections were not being allowed to collect and submit their nomination forms
as a result of the violent actions of the supporters of the ruling party in the State. The
relief that the respondents were pressing upon was that the State Election Commission
must accept nominations already filed, in the electronic form.
The Supreme Court on observing the facts and contentions of the parties and on
analyzing the whole scenario of circumstances in the present matter stated that the
provision contained in the Panchayat Elections Act 1973 and Rules constitute a complete
code in regard to the conduct of the election, including the matter of filing nominations.
Neither the Panchayat Elections Act nor the Rules contemplate the filing of nominations
in the electronic form and for any such reform, a legislative amendment has to be carried
out.
Further, in the matter concerning the uncontested seats in the said elections, the Bench
stated that the intervention of this Court is sought on the basis that free and fair elections
are a part of the basic feature of the Constitution. While the Court was of the view that
the validity of the elections must be tested in election petitions under Section 79(1) of the
Act, however, the seriousness of the allegations and proceedings placed before the Court
would necessitate exercising the power under Article 142 of the Constitution of India.
Accordingly, the Court extended a period of 30 days for filing nominations in regard to
the uncontested seats. For the reasons mentioned hereinabove, the judgment and order of
the Calcutta High Court impugned in the appeal was set aside. The appeal was disposed
of in the terms above.
D. Ramesh Rajagopal vs. Devi Polymers Private Limited AIR 2016SC 1920
While dealing with the appeal filed against orders of High Court whereby it dismissed
appellant's Petition to quash criminal proceedings, the Hon‟ble Apex Court observed as
follows:
As regards the commission of offences under the Information Technology Act, 2000 the
allegations are that the Appellant had, with fraudulent and dishonest intention on the
website of Devi Consultancy Services i.e. www.devidcs.com that the former is a sister
concern of Devi Polymers. Further, that this amounts to creating false electronic record.

15
 In view of the finding above we find that no offence is made out Under Section 66 of the
I.T. Act, read with Section 43. The Appellant was a Director of Devi Polymers and
nothing is brought on record to show that he did not have any authority to access the
computer system or the computer network of the company. That apart there is nothing on
record to show the commission of offence Under Section 65 of the I.T. Act, since the
allegation is not that any computer source code has been concealed, destroyed or altered.
We have already observed that the acts of the Appellant did not have any dishonest
intention while considering the allegations in respect of the other offences. In the
circumstances, no case is made out Under Sections 65 and 66 of the I.T. Act, 2000.
E. B.N. Firos vs. State of Kerala and Ors. 2018(9)SCC 220
The Appellant-B.N. Firos-proprietor of Comtech IT Solutions, Thiruvananthapuram had
filed a Writ Petition challenging a Notification dated 27th December, 2002 issued Under
Section 70(1) of the Information Technology Act, 2000 (hereinafter referred to as "I.T.
Act") declaring the computer, computer system and computer network specified in the
Schedule to the Notification to be "protected systems" under the I.T. Act. The vires of
Section 70 of the I.T. Act itself was also challenged. The Writ Petition was dismissed.
The said order of dismissal has been affirmed in writ appeal by a Division Bench of the
High Court and the review filed there against has also been dismissed. Aggrieved, this
appeal(s) has been filed.
The Court herein observed that the amendment to Section 70(1) of the I.T. Act brought in
by Act No. 10 of 2009, in our considered view, makes the power of declaration of
protected system even more stringent by further circumscribing the power of declaration
of protected system only in respect of a computer resource which directly or indirectly
affects the facility of Critical Information Infrastructure, which is a defined expression in
the I.T. Act (already extracted). The amendment, in our considered view is not a first
time introduction of parameters to govern the exercise of power Under Section 70(1) of
the I.T. Act. Rather, it is an attempt to circumscribe the power even further than what was
prevailing under the pre-amended law, by narrowing down the ambit of "government
work" so far as it is relatable to the facility of Critical Information Infrastructure, as
defined under the Act.
F. Union of India (UOI) and Ors. vs. G.S. Chatha Rice Mills and Ors.MANU/SC/0714/2020
The provisions in the Customs Act for the electronic presentation of the bill of entry for
home consumption and for self-assessment have to be read in the context of Section 13 of
the Information Technology Act which recognizes "the dispatch of an electronic record"
and "the time of receipt of an electronic record". The legal regime envisaging the
electronic presentation of records, such as the presentation of a bill of entry, has been
imparted precision as a result of the enabling framework of the Information Technology
Act under which these records are maintained. The presentation of the bill of entry Under
Section 46 is made electronically and is captured with time stamps in terms of the
requirements of the Information Technology Act read with Rule 5(1) of the Information
Technology (Electronic Service Delivery) Rules 2011.

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G. The State of Uttar Pradesh vs. Aman Mittal and Ors. 2019(19)SCC740
The question examined was as to whether an activity emanating from electronic form
which may be obscene would be punishable Under Section 292 Indian Penal Code or
Section 67 of the IT Act or both or any other provision of the IT Act. This Court held that
Section 292 Indian Penal Code makes offence sale of obscene books, etc. but once the
offence has a nexus or connection with the electronic record the protection and effect of
Section 79 cannot be ignored and negated in view of special provision for a specific
purpose. The IT Act has to be given effect to so as to make the protection effective and
true to the legislative intent
H. The Bank NSP Case: State by Cyber Crime Police vs. Abubakar Siddique
In this case a management trainee of a bank got engaged to a marriage. The couple used
to exchange many emails using the company‟s computers. After some time they had
broken up their marriage and the young lady created some fake email ids such as “Indian
bar associations” and sent mails to the boy„s foreign clients. She used the banks computer
to do this. The boy„s company lost a huge number of clients and took the bank to court.
The bank was held liable for the emails sent using the bank„s system.
I. Bazee.com case: Avnish Bajaj vs. State (N.C.T.) Of Delhi 3 Comp LJ 364 Del, 116
(2005) DLT 427, 2005 (79) DRJ 576
In December 2004 the Chief Executive Officer of Bazee.com was arrested because he
was selling a compact disk (CD) with offensive material on the website, and even CD
was also conjointly sold-out in the market of Delhi. The Delhi police and therefore the
Mumbai Police got into action and later the CEO was free on bail.
J. Parliament Attack Case: State vs. Mohammad Afjal Delhi 1, 107 (2003) DLT 385, 2003
(71) DRJ 178, 2003 (3) JCC 1669
The Bureau of Police Research and Development, Hyderabad had handled this case. A
laptop was recovered from the terrorist who attacked the Parliament. The laptop which
was detained from the two terrorists, who were gunned down on 13th December 2001
when the Parliament was under siege, was sent to Computer Forensics Division of
BPRD. The laptop contained several proofs that affirmed the two terrorist‟s motives,
mainly the sticker of the Ministry of Home that they had created on the laptop and affixed
on their ambassador car to achieve entry into Parliament House and the fake ID card that
one of the two terrorists was carrying with a Government of India emblem and seal. The
emblems (of the 3 lions) were carefully scanned and additionally the seal was also craftly
created together with a residential address of Jammu and Kashmir. However careful
detection proved that it was all forged and made on the laptop.
K. Andhra Pradesh Tax Case: Andhra Pradesh State Road vs. The Income-Tax Officer 1964
AIR SCR (7) 17.
The owner of the plastics firm in Andhra Pradesh was arrested and cash of Rs. 22 was
recovered from his house by the Vigilance Department. They wanted evidence from him
concerning the unaccounted cash. The suspected person submitted 6,000 vouchers to
prove the legitimacy of trade, however when careful scrutiny the vouchers and contents
of his computers it unconcealed that every one of them were made after the raids were

17
 conducted. It had been concealed that the suspect was running 5 businesses beneath the
presence of 1 company and used fake and computerized vouchers to show sales records
and save tax. So the dubious techniques of the businessman from the state were exposed
when officials of the department got hold of computers utilized by the suspected person.
L. State of Tamil Nadu v. Suhas Katti
The woman, a divorcee, complained to the police about a man who was sending her
obscene, defamatory and annoying messages in a Yahoo message group, after she turned
down his proposal for a marriage. The accused opened a fake email account in the name
of the woman, and forwarded emails received in that account. The victim also received
phone calls by people who believed that she was soliciting for sex work .The police
complaint was lodged in February 2004 and within a short span of seven months from the
filing of the First Information Report, the Chennai Cyber Crime Cell achieved a
conviction. Katti was punished with two years‟ rigorous imprisonment and Rs. 500 fine
under S. 469 IPC (forgery for the purpose of harming reputation), one year‟s simple
imprisonment and Rs. 500 for offence under S. 509 IPC (words, gestures or acts intended
to insult the modesty of a woman) and two years‟ rigorous imprisonment and Rs. 4000
fine for offence under S. 67 of IT Act 2000 (punishment for publishing or transmitting
obscene material in electronic form).
M. Fatima Riswana v. State Represented by ACP, Chennai and other,
Both the public prosecutor and counsel for the petitioners applied to the court for transfer
to another (male) judge, to save the district lady judge from embarrassment of having to
view certain CDs that are part of the evidence. The order for transfer was passed and the
justification for this was that the “said trial would be about the exploitation of women and
their use in sexual escapades by the accused, and the evidence in the case is in the form
of CDs. and viewing of which would be necessary in the course of the trial, therefore, for
a woman Presiding Officer it would cause embarrassment.”
N. S.M.C. Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra
India's first case of cyber defamation case, In this case, the defendant Jogesh Kwatra
being an employ of the plaintiff company started sending derogatory, defamatory,
obscene, vulgar, filthy and abusive emails to his employers as also to different
subsidiaries of the said company all over the world with the aim to defame the company
and its Managing Director Mr. R K Malhotra. The plaintiff filed a suit for permanent
injunction restraining the defendant from doing his illegal acts of sending derogatory
emails to the plaintiff. On behalf of the plaintiffs it was contended that the emails sent by
the defendant were distinctly obscene, vulgar, abusive, intimidating, humiliating and
defamatory in nature.
O. Air force Bal Bharti School Case
This was filed in the Juvenile court, Delhi on the charge of cyber pornography. Some
jurists say this is the first Indian cyber pornographic case which was charge sheeted in the
juvenile court. The brief facts in issue were that a student of the Air force Bal Bharti
School, Lodhi Road, New Delhi was arrested by the Delhi Police in the year 2001 April.
The alleged accused was then a class XII student who created a pornographic website as

18
 revenge of being teased by classmates and teachers. He listed in that website the name of
his 12 school mates „girls and teachers in sexually explicit manner. He was then
suspended by the School Authorities though the juvenile court allowed his bail prayer.
However, he was charged under s. 67 of the Information Technology Act 2000, and ss.
292, 293, 294 of the Indian Penal Code and the Indecent Representation of Women Act.
The most significant steps were taken by the law enforcement agencies in India. Further,
Honble Judge also restrained the defendant from publishing, transmitting or causing to be
published any information in the actual world as also in cyberspace which is derogatory
or defamatory or abusive of the plaintiff.
P. Shreya Singhal v. U.O.I AIR 2015 SC 1523
This is a landmark judgment, concerning section 66A of the Information Technology Act,
2000. This Section was not in the Act as originally enacted, but came into force by virtue
of an Amendment Act of 2009 with effect from 27.10.2009. Section 66A of the
Information Technology Act, 2000 was struck down in its entirety being violative of
Article 19(1)(a) and not saved under Article 19(2).

 ELECTRONIC EVIDENCE

 Introduction

The 21st century saw a technological revolution which enthralled not only India but the whole
world. The use of computers is not limited to established organizations or institutions but
available to every individual at swipe of a finger. Information Technology has eased out almost
every humanized action. In this age of cyber world as the application of computers became more
popular, there was expansion in the growth of technology. The evolution of Information
Technology (IT) gave birth to the cyber space wherein internet provides equal opportunities to
all the people to access any information, data storage, analyse etc. with the use of high
technology. This increasing reliance on electronic means of communications, e-commerce and
storage of information in digital form has most certainly caused a need to transform the law
relating to information technology and rules of admissibility of electronic evidence both in civil
and criminal matters in India. The proliferation of computers and the influence of information
technology on society as whole, coupled with the ability to store and amass information in digital
form have all necessitated amendments in Indian law to incorporate the provisions on the
appreciation of digital evidence. The Information Technology Act, 2000 and its amendment are
based on the United Nations Commission on International Trade Law (UNCITRAL) model Law
on Electronic Commerce. The Information Technology (IT) Act 2000 was amended to allow for
the admissibility of digital evidence. An amendment to the Indian Evidence Act 1872, the Indian
Penal Code 1860 and the Banker's Book Evidence Act 1891 provides the legislative framework
for transactions in electronic world.

 Statutory Provision- The Indian Evidence Act, 1872

Section 3 The definition of evidence as given in the Indian Evidence Act, 1872 covers a) the
evidence of witness i.e. oral evidence, and b) documentary evidence which includes electronic

19
record produced for the inspection of the court. Section 3 of the Act was amended and the phrase
“All documents produced for the inspection of the Court” was substituted by “All documents
including electronic records produced for the inspection of the Court”. Regarding the
documentary evidence, in Section 59, for the words “Content of documents” the words “Content
of documents or electronic records” have been substituted and Section 65A & 65B were inserted
to incorporate the admissibility of electronic evidence.

S.17 Admission Defined. The definition of 'admission' (Section 17 of the Evidence Act) has
been changed to include a statement in oral, documentary or electronic form which suggests an
inference to any fact at issue or of relevance.

S.22A. When oral admissions as to contents of electronic records are relevant.— New Section
22-A has been inserted into Evidence Act, to provide for the relevancy of oral evidence
regarding the contents of electronic records. It provides that oral admissions regarding the
contents of electronic records are not relevant unless the genuineness of the electronic records
produced is in question. So remember until your evidence‟s admissibility is in question, none of
the corroboration that you provide about its genuineness along is going to be valid.

S. 34. Entries in books of accounts including those maintained in an electronic form, regularly
kept in the course of business, are relevant.

S. 35 An entry in any public or other official book, register or record or an electronic record
made by a public servant in the discharge of his official duty, or by any other person in
performance of a duty is kept, is itself a relevant fact.

S. 39. What evidence to be given when statement forms part of a conversation, document,
electronic record, book or series of letters or papers.

When any statement of which evidence is given forms part of a longer statement, or of a
conversation or part of an isolated document, or is contained in a document which forms part of a
book, or is contained in part of electronic record or a connected series of letters or papers,
evidence shall be given of so much and no more of the statement, conversation, document,
electronic record, book or series of letters or papers as the Court considers necessary in that
particular case to the full understanding of the nature and effect of the statement, and of the
circumstances under which it was made.

S. 45A. Opinion of Examiner of Electronic Evidence.

When in a proceeding, the court has to form an opinion on any matter relating to any information
transmitted or stored in any computer resource or any other electronic or digital form, the
opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information
Technology Act, 2000 (21 of 2000)., is a relevant fact.

S. 47A. Opinion as to electronic signature where relevant

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When the Court has to form an opinion as to the [Electronic signature] of any person, the opinion
of the Certifying Authority which has issued the [Electronic Signature Certificate] is a relevant
fact.

S. 67A. Proof as to digital signature

Expert in the case of a secure 2[electronic signature], if the [electronic signature] of any
subscriber is alleged to have been affixed to an electronic record the fact that such [electronic
signature] is the 2[electronic signature] of the subscriber must by proved.

Section 65B of Indian Evidence Act is under focus in the Judicial and Law Enforcement
circles.The main points that makes here are:

a) Section 65B (as well as 65A) of Indian Evidence Act refer to the special provisions of the Act
in respect of Electronic Documents. Though Section 65 is referring to “Secondary” documents in
paper form, there is no such distinction made as to the electronic document.

b) There is no need to distinguish Primary and Secondary and all documents need to be
interpreted by a human being which takes the form of a Section 65B certificate.

c) A “Hard disk” which may contain an electronic document also cannot be considered the
“Primary Document” since it is only a “Container” and the real Electronic document is an
expression in binary language which cannot be read by a human being and needs to be
interpreted with the assistance of a binary reading device (Computer + operating system
+Application).

d) Section 65B explains the conditions under which an electronic document can be considered as
“Admissible” in a Court as a “Document” and it needs to be suitably confirmed for the Court to
accept the document, which is often termed as “Section 65B certificate or Statement”

e) Section 65B refers to a process of producing a “Computer Output” of the electronic document
which is the evidence to be admitted and such computer output can be either in the form of a
“Print Out” or a “Copy”.

f) There is a “Process” by which the electronic document becomes the “Computer output” and
Section 65B identifies this as the subject activity which needs to be conducted by a person
having lawful control over the computer producing such output and that during the period of
such production, the Computer should be working properly etc.

g) The focus of Section 65B is the activity of conversion of the electronic document residing
inside a system which can be seen by an observer into a “Computer Output”.

h) The other clarifications contained in the Section 65B such as that the the Computer Output
could be produced by a combination of computers, acting in succession etc as relating to
dynamic creation of an electronic document from a data base and routing it through multiple
devices onto a final visible form in the computer of the observer and thereafter its porting into a
Printer.

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i) Considering these interpretations, the Section 65B certification is a “matter of fact”
certification to the effect that “What I saw is what I reproduced as a computer output faithfully”
and this can be done by any person who is observing an electronic document in his computer and
wants it to be produced as an evidence. It is not necessary that a document from yahoo website
has to be certified only by a Yahoo server administrator. Similarly, a statement of account
downloaded from an ICICI bank website need not be certified only by the ICICI Bank manager
but by any person who can lawfully access the document in electronic form.

j) There is also an important distinction that “Content Owner” is different from “Content
Viewer” and Section 65B is meant to be produced by a content viewer. On the other hand the
content owner in respect of say a Bank statement is the official Bank manager and he can
provide a print out as the owner of the content who understands the content and is considered as
an “Expert” in the domain. Anybody else who views the document provides a Section 65B
certificate that the print out (or a soft copy) is a faithful reproduction.

S. 73A. Proof as to verification of electronic signature.

In order to ascertain whether a digital signature is that of the person by whom it purports to have
been affixed, the Court may direct--
(a) that person or the Controller or the Certifying Authority to produce the Digital Signature
Certificate;
(b) any other person to apply the public key listed in the Digital Signature Certificate and verify
the digital signature purported to have been affixed by that person.
Explanation.-For the purposes of this section, "Controller" means the Controller appointed under
sub-section (1) of section 17of the Information Technology Act, 2000.
S. 81A. Presumption as to Gazettes in electronic forms.

S. 85A. Presumption as to electronic agreements.

S. 85B. Presumption as to electronic records and electronic signatures.

S. 85C Presumption as to Electronic Signature Certificates.

S. 88. And S 88A deals with Presumption as to telegraphic messages and to electronic messages.

S. 90A. Presumption as to electronic records five years old.

S. 131. Production of documents or electronic records which another person, having possession,
could refuse to produce.

No one shall be compelled to produce documents in his possession or electronic records under
his control, which any other person would be entitled to refuse to produce if they were in his
possession or control, unless such last-mentioned person consents to their production.

 Judicial Pronouncements on Relevance and Admissibility of Electronic

Evidence
i. Union of India and Ors. v. CDR Ravindra V. Desai: (2018) 16 SCC 272.

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 The Court emphasised that non-production of a certificate Under Section 65B on an
earlier occasion is a curable defect.

ii. Sonu alias Amar v. State of Haryana: (2017) 8 SCC 570,

The crucial test, as affirmed by Apex Court, is whether the defect of non production of
certificate could have been cured at the stage of marking the document. If an objection
was taken to the CDRs being marked without a certificate, the Court could have given the
prosecution an opportunity to rectify the deficiency.

iii. State vs. M.R. Hiremath (01.05.2019 - SC) : 2019 (3) SCC (Cri.) 109

High Court erred in coming to the conclusion that the failure to produce a certificate
Under Section 65B(4) of the Evidence Act at the stage when the charge-sheet was filed
was fatal to the prosecution. The need for production of such a certificate would arise
when the electronic record is sought to be produced in evidence at the trial. It is at that
stage that the necessity of the production of the certificate would arise.

iv. P. Gopalkrishnan vs. State of Kerala and Ors. (29.11.2019 - SC) : AIR 2020 SC 1

The contents of the memory card/pen drive being electronic record must be regarded as a
document. If the prosecution is relying on the same, ordinarily, the Accused must be
given a cloned copy thereof to enable him/her to present an effective defence during the
trial. However, in cases involving issues such as of privacy of the complainant/witness or
his/her identity, the Court may be justified in providing only inspection thereof to the
Accused and his/her lawyer or expert for presenting effective defence during the trial.
The court may issue suitable directions to balance the interests of both sides.

v. Tomaso Bruno and Ram Singh [1985 Supp SCC 611]

It was held that electronic evidence is admissible and provisions under Sections 65-A and
65-B of the Evidence Act are by way of a clarification and are procedural provisions. If
the electronic evidence is authentic and relevant the same can certainly be admitted
subject to the Court being satisfied about its authenticity and procedure for its
admissibility may depend on fact situation such as whether the person producing such
evidence is in a position to furnish certificate under Section 65-B(4).

vi. Court in Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473: observed that electronic
evidence by way of primary evidence was covered by Section 62 of the Evidence Act to
which procedure of Section 65-B of the Evidence Act was not admissible. However, for
the secondary evidence, procedure of Section 65-B of the Evidence Act was required to
be followed and a contrary view taken in Navjot Sandhu [State (NCT of Delhi) v. Navjot
Sandhu,: (2005) 11 SCC 600:] that secondary evidence of electronic record could be
covered under Sections 63 and 65 of the Evidence Act, was not correct.

Any documentary evidence by way of an electronic record under the Evidence Act, in
view of Sections 59 and 65-A, can be proved only in accordance with the procedure

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 prescribed Under Section 65-B. Section 65-B deals with the admissibility of the
electronic record. The purpose of these provisions is to sanctify secondary evidence in
electronic form, generated by a computer.

vii. In Shafhi Mohammad vs. State of Himachal Pradesh, (2018) 2 SCC 801, noticing the
three Judge Bench Decision in Anvar P.V. have explained the said decision, holding the
rigor of the rule there, that secondary evidence of electronic record can only be led
subject to satisfaction of the requirements of Section 65-B(4), to be ameliorated in view
of another three-Judge Bench Decision of their Lordships in Tomaso Bruno and another
vs. State of Uttar Pradesh, (2015) 7 SC 178, and, laid down that in a case where
electronic evidence is produced by a party, who is not in possession of the device,
applicability of Sections 63 and 65 of the Evidence Act, cannot be held excluded. It is
held there by their Lordships that the requirement of producing a certificate under Section
65-B(4), as a condition precedent to the leading of secondary evidence of electronic
record, is attracted when such evidence is produced by a person, who is in control of the
relative device, and, not when the device is with the opposite party.Thus the court
clarified the legal position on the subject on the admissibility of the electronic evidence,
especially by a party who is not in possession of device from which the document is
produced. Such party cannot be required to produce certificate Under Section 65B(4) of
the Evidence Act. The applicability of requirement of certificate being procedural can be
relaxed by Court wherever interest of justice so justifies.
viii. Arjun Panditrao Khodkar Vs. Kailash Kushanrao Gorantyal and Ors.(14.07.2020)

Civil Appeal No.20825-20826 of 2017

With regard to the requirement of certificate under Section 65 B (4) the position was
settled at rest in following terms

The required certificate under Section 65B(4) is unnecessary if the original document
itself is produced. This can be done by the owner of a laptop computer, computer tablet
or even a mobile phone, by stepping into the witness box and proving that the concerned
device, on which the original information is first stored, is owned and/or operated by him.
In cases where the “computer” happens to be a part of a “computer system” or “computer
network” and it becomes impossible to physically bring such system or network to the
Court, then the only means of providing information contained in such electronic record
can be in accordance with Section 65B(1), together with the requisite certificate under
Section 65B(4).

The judgment in Tomaso Bruno being per incuriam, does not lay down the law correctly.
Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad and
the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law
correctly and are therefore overruled. I t is necessary to clarify what is contained in the
last sentence in paragraph 24 of Anvar P.V.which reads as “…if an electronic record as
such is used as primary evidence under Section 62 of the Evidence Act…”. This may

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 more appropriately be read without the words “under Section 62 of the Evidence Act,…”.
With this minor clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does
not need to be revisited.

General directions are issued to cellular companies and internet service providers to
maintain CDRs and other relevant records for the concerned period (in tune with Section
39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other
record is seized during investigation in the said period. Concerned parties can then
summon such records at the stage of defence evidence, or in the event such data is
required to cross-examine a particular witness. This direction shall be applied, in criminal
trials, till appropriate directions are issued under relevant terms of the applicable licenses,
or under Section 67C of the Information Technology Act,

Appropriate rules and directions should be framed in exercise of the Information

Technology Act, by exercising powers such as in Section 67C, and also framing suitable
rules for the retention of data involved in trial of offences, their segregation, rules of
chain of custody, stamping and record maintenance, for the entire duration of trials and
appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise,
appropriate rules for preservation, retrieval and production of electronic record, should be
framed as indicated earlier, after considering the report of the Committee constituted by
the Chief Justice‟s Conference in April, 2016.

 CONCLUSION
In conclusion, computer crime does have a drastic effect on the world in which we live. It
affects every person no matter where they are from. Effective Legal enforcement of
Cyberlaws requires a multipronged approach. No one strategy by itself is self sufficient or
mutually exclusive to create effective enforcement results. To devise a well integrated action
plan for cyber law enforcement is the need of the hour. It is imperative to spread greater
awareness on the subject amongst general public and impart continuous training to the law
enforcement personnel and forensic experts. Due measures to establish means and processes
of evaluating new ICT developments and products including establishing accreditation
agencies, certification policies, CERT, and procedures to enhance information security in the
online world require strategic adoption . In addition to specific consumer protection
initiatives, the private sector‟s dedication and support for a secure Internet system is crucial
to curbing unlawful conduct on the Internet. The public private participation and increased
Corporate accountability and responsibility in maintaining security practices can assist in
improved enforcement of cyber laws. In addition, global initiatives to harmonise cyber laws
( in substantive and procedural spirit) will play a vital role in removing existing lacunae by
crystallizing the laws of cyberspace. Participation of International organizations,
professional & industry associations, law enforcement agencies, cyber law experts and other
relevant bodies in creation of multilateral Treaties/Conventions and formulation of Code of
Conduct for Cyberspace will assist in evolution of clear principles that will govern the
cyberspace.

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