Chapter 1 : Introduction and Methodology

1.1 . General Background

1.1.1 Cyber

Cyber is a prefix used in a growing number of terms to describe new things that
are being made possible by the spread of computers. The term cyber is used in
combination of other words that convey a meaning related to computer,
computer network and virtual reality.

There are other things related to cyber i.e. cyber phobia which means fear of
computer , cyberpunk which means science fiction which draws ideas of
computer science , cyber space which means a non-physical territory created by
computer , cyber café means commercial outlet where we can get internet
services and cybernetics means scientific study and communication of animal and
machine.1

1.1.2 Cyber crime

Cyber-crime is the emerging crime around the globe which has unique modus
operandi and can be committed being domiciled in any part of world against
individual or institution situated in other part.2 In general crime committed
through the help of computers and internet is known as cybercrime .Cyber-crimes
are defined as offences that are committed against individual or groups of
individual with a criminal motive to intentionally harm the reputation of the
victim cause physical or mental harm to the victim directly or indirectly using
1
NARAYAN PRASAD SHARMA CYBER SPACE AND CYBER LAW, 55 (2015 ).
2
NICK & ROBERT TAYLOR, THE WORLD’s CURRENT EFFORT ON CYBERCRIME, In: Computer Law and Security
Report, 390-395 (2004).

1
modern communication network such as internet, computers and mobile phones.
Theft of computer source code, unauthorized access, destructing computer and
computer system, illegal publication, violation of privacy, providing wrong
information, computer fraud etc. are known as cyber-crime.

Cyber-crime can generally be divided into two broad categories: - crime that are
facilitated by computer or the internet, and crime against computer or computer
system.3Cyber-crime is an extension of traditional crimes but takes place in
cyberspace.4Cyber-crime includes activities like:

a. Hacking
b. Child pornography
c. Cyber stalking
d. Denial of service attack
e. Virus dissemination
f. Software piracy
g. IRC crime
h. Credit card fraud
i. Phishing
j. Net extortion
Thus, any activity that uses computer as an instrumentality, target or a
means for perpetrating further crime, falls within the ambit of cybercrime.
If such an activities is committed by a person then it is regarded as a

3
GERALD R. FERRERA, CYBER LAW TEXT AND CASES, 402 (3rd Edition,2012).
4
The term “cyberspace” was first used by author William Gibson in his 1984 science fiction novel Neuromanceras
cited in Gabers , 23,(2002).

2
 cybercrime.5 To control such a activities cyber law is necessary for a
sanction.

1.1.3 Cyber law

Cyber law means an ample variety of political and legal issues related to the
internet and other communication technology, including intellectual property,
privilege freedom, freedom of expression and jurisdiction. 6 Cyber law governs the
legal issue of cyber space. The term cyber space is not restricted to internet. It is a
very wide term that includes computers, computer networks, the internet data
software etc.

Any laws relating to protecting the internet and other online communications
technologies is known as cyber law. Cyber law is also known as internet law.
Cyber law is the area of law that deals with internet, relationship to technological
and electronic elements including computers, software, hardware and
information system. On the other hand cyber law encompasses a wide variety of
legal issues related to use of communication technology.

Though there is sufficient laws relating to cybercrime in other countries but in

Nepal it is operated under Electronic Transaction Act, 2063 and Electronic
Transaction Rules, 2064.

5
VISHWANATH PARANJRAPE, CYBER CRIMES AND LAW,(Center Law Agency).7.(2010 ).
6
NARAYAN PRASAD SHARMA, CYBER SPACE AND CYBER LAW, 40 (2015).

3
1.2 Statement of problem

 Are the laws relating to cyber are fully developed or not?

 Are the laws relating to cybercrime are sufficient and effective or not?
 Whether Nepal is using effective security measure or not?
 What sorts of cybercrime is held in Nepal and jurisdiction for cyber suit
is sufficient or not?

1.3 Objectives of study

 To make the concept of cyber law clear

 To point out the laws relating to cyber crime
 To explore the weaknesses of prevailing laws and also pointing out laws
which should be amended

1.4 Significance of study

This study and the related research are conducted to enact the new legislation
related to cyber law. The study acknowledges that the prevailing laws related
to cyber are not sufficient. Similarly, it also affirms that the protection of
system is being increasingly difficult and complex due to rapid advancement
of technology.

4
The significance of conducting this research is as follows:
• This research will help to formulate the legislation related to cybercrime.
• This research will help to explore the knowledge about cyber security.
• This research will help to see the minimization of cybercrime.
 It would also help to enlarge jurisdiction for cyber suit.

1.5 Limitation of the study

This Study is solely concentrated on the Cyber law in Nepal. As there are no
clear and sufficient laws concerning cyber laws in Nepal. But in international
scenario, there are sufficient laws but in Nepal there is not a separate act. Also
this cybercrime and cyber law is a new topic and also it is a part of law relating
to information technology and computer science.

1.6Methodology of study

The study is carried out in doctrinal method. Analytical and historical method
of research will also be applied. The study is carried out on the basis of
primary and secondary sources of information. Primary sources of information
includes Civil code, Acts, Regulations, Judicial decisions and other
international instruments whereas secondary sources of information are
collected from various books, articles, law journals, webs, reports and other
legal materials.

5
1.7Literature review

A variety of literatures have been consulted throughout this research seminar

to make this research authentic and conclusive. Text books, articles, journals,
dissertations, thesis and other literatures related with the subject matter
written by eminent workers and published by various authorities have been
reviewed for this study. This study has obtained much information from the
various websites as well.
Some of the literatures reviewed for this study are as follows:-

1. The book "Cyber law and Cyber Crime" written Prashant Mali published by
Snow white, First Edition, 2005

2. The Book “Cyber Laws” written by Dr.Gupta and Agrawal published by

Premier, First Edition, 2008

3. The Book “Information Technology Law and Practice” written by Dr.Gupta

and Agrawal published by Premier, First Edition, 2009

4. The Book “A Practical Approach to Cyber Laws” written by K.Mani and

published by Kamal publishers, 2008

5. The Book “Information Technology Law” written by Diane Rowland and

Others, Published by Routledge Publication, Fourth Edition, 2012
6
6. The Book “The Law of Public Communication” written by Kent.R.Middleton
and others published by Longman Publication, Fourth Edition, 1997

7. The Book “Telecommunications Law and Regulation” written by IAN

Walden and John Angel published by Oxford, 2007

8. An article “An Analysis of Cyber Crime from Conceptual Perspective: Where

is Nepal?” written by Balaram Raut published in Nepal Law Review, Volume
24, 2012

9. The book “ Cyber laws” by Justice Yabindra Singh published by Universal

law publishing ,second edition,2005

1.8 Organization of the study

The study is divided into five chapters including introductory and

conclusion chapter.
The first chapter is the introductory chapter of this study general
background of the subject matter, the objective of the study, significance
of the study and methodological and additional aspect of this study are
dealt in this part.

7
In the second chapter history of cybercrime in world perspective and
Nepalese perspective is included.

The third chapter deals with the development of cyber law in world
perspective and Nepalese perspective is included.

Fourth chapter deals with the legislations and laws relating to cyber law in
Nepal. Also it includes some of the cases related to cybercrime.

In fifth chapter, findings, conclusions and suggestions of this study are

included.

8
 Chapter 2: History of cyber crime

2.1 History of computer and Internet

Computer was first invented by Charles Babbage. He made an analytical engine

and difference engine which were useful for computer processor. Later on from
1940 computers were invented formally for a work. From 1940 generation of
computer was got started as follows:

a. First Generation (1940-1956 A.D.) : It uses vacuum tubes as a

processor and computers of those days were IBM , EDVAC , ENIAC
etc.7
b. Second Generation(1956-1963) : It uses transistors as a processor
and computers of these days were IBM 140 , IBM 2090 etc.8
c. Third Generation (1964-1970): It uses Integrated circuits as a
processor.9
d. Fourth Generation (1970- till date): It uses microprocessor as a
main processor. Computers of these days as laptops , personal
computer etc.10
e. Fifth Generation: It uses biochip as a main processor. It also uses a
natural language.11

7
HIM KOIRALA,COMPUTER SCIENCE, 14 (2015).
8
Id. at 15.
9
Id. at 16.
10
Id. at 17.
11
Id. at 19.

9
 In this way Internet was made/propounded on fourth generation of
computer i.e. After 1970 A.D. The term Internet means a global network. The
internet is a global system of interconnected computer networks that use the
standard internet protocol suit which is called TCP/IP. It is also defined as a
network of network.

The internet was originally concerned by the department of defense as a way to

protect government communications systems in the event of a military strike. The
original network ARPANET evolved into a communication channel among
contractors, military, personnel and university researchers who were constructing
ARPA project.

By the late 1980’s thousands of cooperating networks were participating in the

internet.

2.2 History of computer and internet in Nepal

The history of IT and computers in Nepal dates back to not more than a couple of
decades. However, the growth of Information Technology here has been rapid.
The major leap towards the advancement in this field started when the first
computer IBM 1401, a second generation mainframe computer , was used in the
1971 census, although an electronic calculator called ‘Facid’ was used before in
the 1961 census. Again, another second generation mainframe computer ICL
2950/10 was used for the 1981 census.12

12
HIM KOIRALA, COMPUTER SCIENCE, 264, (2015).

10
The credit for introducing internet among the people mainly goes to the private
sector. Although the internet was initially limited only to email services, in 1995,
a company Mercantile Communications finally started the internet services in the
country. In 1998, Nepal Telecommunications Authority (NTA), a
telecommunications regulatory body, was formed as per the Telecommunications
Act 1997. NTA holds the power to issue license to the Internet Service Providers
(ISPs) in Nepal.

2.3 History of cybercrime in World

After the establishment of internet crime related to internet were increased.

Later on it became a big issue on different countries. Information and
communications flow more easily around the world .This causes difficulty as the
internet based societies has no physical boundaries and thus much traffic escapes
national supremacy. As developing countries are entering into the internet world
but their overall awareness level regarding the cyber-crime and internet crime is
low.

Hacker’s code backers and cyber spics might sound like a modern artifact of the
computer age but their forefathers and pioneers of the field can be traced back to
more than half a century ago.

Some of the serious cyber-crime in history is:

a) British cryptographer Alan Turning and his team at Bletchley Park invent
a Bombe, a code breaking machine in 1939 A.D.
b) Lun Murphy aka captain Zap became the first cracker to be tried and
convicted as a felon on 1981 on U.S.A in Philadelphia.

11
 c) The Comprehensive Crime Control Act 1984 gives the secret service
jurisdiction over computer fraud under U.S. criminal code.
d) In 1985 hackers handbook was published.
e) First National Bank of Chicago became the victim of $70 million on
computer theft on 1989.
f) The Computer Misuse Act, 1990 was passed in the United Kingdom for
any unauthorized access to computer system.
g) In 1994 Russian cracker theft $10 billion from Citibank and transfer the
money to different bank account around the world.
h) A hacker alters/hack a websites of the United States Department of
Justice, the CIA AND THE US air force in 1996.
i) In 2000 A.D. teenage hacker Jonathan James becomes first juvenile to
serve a jail time for hacking.
j) In 2004 North Korea claims to have 500 trained hackers who successfully
crack South Korean, Japanese and their allies computer system.
k) Largest Defacement in Web history at that time is performed by the
Turkish hacker isKORPiTX who successfully hacked 21,549 websites in
one sweep.
l) Google intellectual property is stolen by Chinese hacker in what in what
come to be known as Operation Aurora in 2010.
m) Sony’s play station network is infiltrated and brought down on 2011 A.D.
n) The Bit coin exchange Mt. Gox filed for bankruptcy after $460 million
was apparently stolen by hackers in 2014.13

13
http://www.informationsecuritybuzz.com/articles/the-secret-history-of-cyber-crime/.

12
In this way we can find out many crimes related to cyber in today’s world due to a
development of internet and computer. Such tools are being misused in
unnecessary purpose.

2.4 History of cyber-crime in Nepal

A Cyber Crime is an act of creating, distributing, altering, stealing, misusing and

destroying information through the computer manipulation of cyberspace;
without the use of physical force and against the will or interest of the victim.

In Nepal also after a development of computer and internet, a crime related to

cyber is increasing day by day. Nepalese cyber-crime has got a short history
because only from 1995 Nepal introduces e-mail service through internet. In
Nepal in 2012 just nine (9) cyber-crime offences were reported. After that in 2013
it was increased up to 19 and on 2014 it became 22 by increasing. 14

Some of the cyber related crimes in Nepal are as follows:

a) In 2013 the police Central Investigation Bureau (CIB) arrested four (4) people
including two foreigners from Nigeria and Sierra Leone for operating a fraud
racket via SMS. Since no provision covers phishing, these men were
prosecuted under theft laws in the general legal code.
b) After the first constituent assembly election ,many people shows their anger
through social networking sites like Facebook by uploading and sharing
defamatory images and messages of political leader and public figures.

14
http://kathmandupost.ekantipur.
http://www.grin.com/en/e-book/305565/cybercrime-in-nepalcom/news/2http://www.imnepal.com/cyber-law-
nepal/014-05-25/cybercrime-without-cyber-rules.html.

13
c) In 2014 Raju Prasad shah from Nepal government who was a section officer in
Shiraha district told that to fire a gun from back to former Vice prime minister
and Home minister Bamdev Gautam on a photo of Bamdev Gautam on
Facebook comment. After that case was not filed in the court . 15
d) In 2016 a group of Nepalese hacker named Anonymous opnep has claimed to
have breached into the server of Nepal Telecom, the biggest
telecommunication service provider in Nepal. Hackers have gained access to
all the details of NTC users that include username, citizenship name, and
father’s name as well as other private information which you have to fill up
during new SIM registration.
e) In 2015 the Office of the President website was defaced by a Turkish hacker
challenging the government to narrow security gaps on Nepali websites.
f) Official Website of Nepali embassy in Australia has been hacked. The official
web-domain www.necan.gov.np has been hacked and still remains under-
control of the hacker. A group of hacker called ‘Unknown Ghost’ has put in the
clip of horror film in the website.
g) Pakistani and Bangladeshi Hacker’s group named DR@CUl@ has hacked a
number of Nepal Government’s websites.
h) Nepal Law Commission - a statutory independent body created by the Nepal
Law Commission Act, 2007 has also been hacked.
i) Another site to be hacked is Government of Nepal Ministry of Agriculture
Development Department of Agriculture Kanchanpur
http://www.dadokanchanpur.gov.np/index.html hacker left this message on

15
https://www.youtube.com/watch?v=DOkRB_jTnGw.

14
 the site: Your Site Has Been Hacked by Dr@cul@ From BD GREY HAT
HACKERS, Im Owner Site Admin Yeaah Hahahaha..

In this way this we can find out many cyber related crimes in Nepalese
perspectives. Hacking , fraud through computers are increasing day by day.So
to control such a crimeful activities there are also a existing laws in our
country.

2.5Areas of cyber-crime in Nepal

a) SOCIAL MEDIA RELATED CYBER CRIME
Social Media related cyber-crime in Nepal includes using Porn Content in
social Media or creating fake profiles to intentionally harm someone with
the use of Facebook, Twitter, Instagram or any social Media Platform. In
the year 2070, a total of 19 cases of Social Media Cybercrimes were
reported. With the trending use of Social Media, the number of cases has
increased to 35 in 2072. It has been seen that the number of female victims
is more. Using Naked Pictures in social Media to take revenge has been the
most cases according to Crime Investigation Bureau (CIB) Nepal. 16
b) PIRACY RELATED CRIME
Any Content which has been copied to make a duplicate copy is considered
as Piracy. Using unauthorized trademarks and copying source code without
having the License to use it is considered Piracy Crime. Example, the font
used in Company logos can also be related to piracy crime, if the font is not
listed free for business purposes. Even though this related crime is not a

16
https://www.gadgetbytenepal.com/5-cyber-crimes-nepal/

15
 possibility in today’s context of Nepal, but we can see a various example of
Font piracy.17
Also, Source Code piracy cases have been heard in Nepal lately. Since the
case has not been solved, the whole story is an unsolved mystery. It has
been allegedly reported that a software company filed a case against a
Media House for copying their source code.

c) FAKE PROFILE MARKETING

Creating or using a fake profile, fake website or email to create a bad image
or inappropriate marketing is also considered as cybercrime. We can see
various examples of fake profiles, fake websites, and spam emails.
Spreading unwanted and inappropriate message using fake profile is
considered a Fake Profile Marketing. This rule also implies to businesses
where a fake product is sold. Marketing of fake duplicate product using the
name of a different brand also comes under the Fake Marketing Cyber
Crime.18
d) THREATENING USING EMAIL
Email threat is not much common cybercrime in Nepal. If an email contains
a threat or warning in mentality to harm or disturb any individual or any
organization, this is considered as a cyber-crime.19
e) UNAUTHORIZED ACCESS
Unauthorized access is one of the common issues in cybercrime world.
Getting access to a website, programme, server, service, or other system

17
Id. at
18
Id. at
19
Id. at

16
 using someone else’s account or other methods is called Unauthorized
Access. Examples of the unauthorized use of computers include an
employee using a company computer to send a personal e-mail or
someone gaining access to a bank computer and performing an
unauthorized transfer.20

20
Id. at

17
 Chapter 3 : Development of Cyber law

3.1 Development of cyber law in world perspectives

Cyber law is constantly being evolved. As newer opportunities and challenges

are surfacing cyber law being a constantly evolving phenomenon. Different
countries have had their own experiences while framing and implementing cyber
laws. There is essentially no written record of development in the field until 1960
with the publication of the first legal article on computer law titled as “ A lawyer’s
guide through the computer Maze “ by Roy N Freed.

Today’s internet was born in the early 1960’s while the initial efforts for its
regulation could only be witnessed in the late 1990’s. In the early 1970’s countries
began adopting broad laws aimed at protecting individual privacy. The genesis of
modern legislation in this area can be traced to first data protection law in the
world enacted by West Germany in 1970. It was followed by Sweden on 1973 ,
United States on 1974 , Germany on 1977 and France on 1978 . 21

Some of the foreign cyber laws are as follows:

a) United States of America(USA)

The US has both important knowledge and experience in the legal field of
cyber security. The major laws governing the cyber-crime in US are Uniform
Computer Information Transaction Act Can Spam Act of 2003. The US has a
very well defined structure for reporting crime. Federal Bureau of Investigation
(FBI) , the United States secret service etc. Each of these agencies has offices
21
NARAYAN PRASAD SHARMA, CYBER SPACE AND CYBER LAW, 57 (2015)

18
 located in every state to which crimes may be reported. Also Computer Fraud
and Abuse Act (1986), Electronic Communications Privacy Act, 1986 are also
laws related to cyber-crime.22
b) China
China boasts of 111 million internet users, the world second largest number
after the United States. In China cyber-crimes are controlled by police. Specific
regulation on cyber-crime started in 1994 when the State Council promulgated
the Ordinance on Security Protection of Computer Information System. 23
c) India

The Information Technology Act was first enacted in 2000, and has been
revised most recently in 2008. In this act section 43 is about data protection,
section 66 is about hacking, section 67 is about cyber terrorism, and section 72
is about privacy and confidentiality which are related to cyber-crime. 24

d) United Kingdom
In U.K. there exist different laws regulating cyber-crimes. Obscene Publication
Act (1959), Police and Criminal Evidence Act (1981), Computer Misuse Act
(1990) and Data Protection Act, 1998 are main laws concerning cyber-crimes in
UK.25

3.2 Development of Cyber law in Nepal

22
BALARAM RAUT, An Analysis of Cyber Crime from Conceptual Perspectives: Where is Nepal, 37 NEPAL LAW
REVIEW, 259-261 (2012)
23
Id. at 19
24
Id. at 19
25
Id. at 19

19
In Nepal cyber law was made on 2061 B.S. after the incident of hacking of Nepal
telecom’s network. Before that there was not any cyber-relating law because no
cyber-crime was found before that. Though the crimes were happened but those
were not of serious types and it was not filed in a court.

New cybercrime offences materialize daily but the legal system lags behind in
offering protection. Prior to 2004, cybercrimes were dealt with under the Public
Offence Act with minimal success. Later, the Electronic Transaction and Digital
Signature Act 2004 was passed.

The Electronic Transaction and Digital Signature Act was enacted to encourage
the IT industry in Nepal. Nepal’s last five-year plan aimed to increase access to
information technology to the public, which would help promote good
governance, better opportunities and a more informed society. Similarly, the IT
Policy 2010 was enacted to use IT as a tool for social and financial development,
which would ultimately help in reducing poverty. Though the policy is promising
on paper, not much has been implemented.

Some of the laws which are developed for cyber-crimes are:

a. Electronic Transaction Act, 2063

b. Banking Offences Act, 2007
c. Digital Signature Act, 2011
d. Public (Crime and Punishment) Act, 1970.
In this way such types of laws are developed in Nepal for regulating cyber-
crimes in Nepal.

Chapter 4 : Laws and legislation regulating cybercrime in Nepal

20
4.1 Legal provision relating to cybercrime

In Nepal there are three specific statutes which are regulating the cyber-crime
directly and indirectly. Those laws are The Electronic Transaction Act, 2063,
Banking Offences Act, 2007 and Digital Signature Act, 2011. And the cyber-crimes
which are not covered by these laws are dealt by Some Public (Crime and
Punishment) Act, 1970.

4.1.1 The Electronic Transaction Act, 2063

There was no separate and independent law related to computer crimes prior to
the enactment of the Electronic Transaction Act, 2063 referred to and all the
computer related crimes were tried under the traditional law of crimes, i.e.
Country Code and sector specified criminal laws. Because of increasing use of
computer in commission of different crimes and commission of crime against
computer, it posed practical problem for the regulating agencies to regulate
cyberspace transaction of citizens. ETA was promulgated by parliament of Nepal
recognizing the expediency to make, legal provision for authentication and
regularization of the recognition, validity, integrity and reliability of generation,
production, processing, storage, communication and transmission system of
electronic records by making the transactions to be carried out by means of
electronic data exchange or by any other means of electronic communications,
reliable and secured.26Furthermore, the act was promulgated for controlling the

26
Electronic Transaction Act, 8 Dec 2007, Preamble.

21
acts of unauthorized use of electronic records or of making alternation in such
records through the illegal manner.27

Under definition clause of the act, certain terminology related to cybercrime has
been defined which includes definition of computer, computer database,
computer network, data, access, electronic record, computer accessory and so
on. Major part of ETA governs provision related to electronic record and digital
signature, controller and certifying authority, digital signatures and certificates,
subscriber's duties and rights, government use of digital signature, network
service and constitution of tribunals. However, chapter 9 under ETA explicitly
provides provision related to offence relating to computer.
In more detail, section 44 of ETA has criminalized the act of piracy, destruction or
alteration of computer source code. If any person knowingly or with malafide
intention, pirates, destroys, alters computer source code to be used for any
computer, computer program, computer system or computer network or cause,
other to do so, shall be liable with punishment with imprisonment not exceeding
three years or with a fine not exceeding two hundred thousand rupees or with
both. Clarification of the section 44 has provided that 'computer source code'
means the listing of programs, computer command, computer design and layout
and program analysis of the computer resources in any form.

Section 45 of ETA has criminalized the act of unauthorized access in computer

material. If any person with an intention to have access in any program,
information or data of any computer, uses such a computer without authorization

27
ETA, 2063, preamble, para 2.

22
of the owner of or the person responsible for such computer or even in the case
of authorization, performs any act with an intention to have access in any
program, information or data contrary to from such authorization, such a person
shall be liable to the punishment with the fine not exceeding two hundred
thousand rupees or with imprisonment not exceeding three years or with both
depending on the seriousness of the offence.

Section 46 has criminalized the act of damaging any computer and information
system. If any person knowingly and with a malafide intention to cause wrongful
loss or damage to any institution destroys, damages, deletes, alters, disrupts any
information of any computer source by any means or diminishes value and utility
of such information or affects it injuriously or causes any person to carry out such
an act, such a person shall be liable to the punishment with the fine not exceeding
two thousand rupees and with imprisonment not exceeding three years or with
both.

Section 47 has criminalized the act of publication of illegal materials in electronic

form. Although constitution of Nepal has guaranteed freedom of expression 28,
ETA limits the freedom of expression. Pursuant to ETA, if any person publishes or
displays any material in the electronic media including computer, internet which
are prohibited to publish or display by the prevailing law or which may be
contrary to the public morality or decent behavior or any types of materials which
may spread hate or jealousy against anyone or which may jeopardize the
harmonious relations subsisting among the people of various castes, tribes and

28
Interim Constitution of Nepal, 2063, Article 13(3)(a)

23
communities shall be liable to the punishment with the fine not exceeding one
hundred thousand rupees or with the imprisonment not exceeding five years or
with both.29

Section 48 has criminalized the act of disclosure of confidentiality. If any person

who has an access in any record, book, register, correspondence, information,
documents or any other material under the authority divulges or causes to
divulge confidentiality of such to any unauthorized person, he/she shall be liable
to the punishment with a fine not exceeding ten thousand rupees or with
imprisonment not exceeding two years or with both, depending on the degree of
offence.30

Section 52 of ETA has criminalized the act of commission of computer fraud. If any
person with an intention to commit any fraud or any other illegal act, creates,
publishes or otherwise provides digital signature certificate or acquires benefit
from the payment of any bill, balance amount of any one's account, any inventory
or ATM card in connivance of or otherwise by committing any fraud, amount of
the financial benefit so acquired shall be recovered from the offender and be
given to the person concerned and such an offender shall be liable to the
punishment with a fine not exceeding one hundred thousand rupees or with an
imprisonment not exceeding two years or with both.31

29
ETA, 2063, Section 47.
30
Id. at , Section 48.
31
Id. at , Section 52.

24
Section 53 of ETA has criminalized abetment to commit computer related offence.
A person who abets other to commit an offence relating to computer under the
act or who attempts or is involved in the conspiracy to commit such an offence
shall be liable to the punishment with a fine not exceeding fifty thousand rupees
or with imprisonment not exceeding six months or with both, depending on the
degree of the offence.32Section 54 of the ETA has criminalized punishment to the
accomplice. A person who assists other to commit any offence under the act or
acts as accomplice, by any means shall be liable to one half of the punishment for
which the principal is liable.33

Furthermore, the act stipulated extra-territorial jurisdiction in case of cybercrime.

If any person commits any act which constitutes offence under the act and which
involves the computer, computer system or network system located in Nepal,
even though such an act is committed while residing outside Nepal, a case may be
filed against such a person and shall be punished accordingly. Furthermore, for
the offence committed by a corporate person, such an offence shall be deemed to
have been committed by a person who was responsible as chief for the operation
of the corporate body at the time of committing such an offence. However, if the
person acting as chief proves that such an offence was committed without his/her
knowledge or that he/she has exercised all reasonable efforts to prevent such and
offence, he/she shall not be liable to the guilty. The act under cybercrime may
also deem to be criminalized under other laws. If any act deemed to be an offence
under ETA and also deemed to be offence under the other laws prevailing, it shall
not be deemed to have been hindered by ETA to file a separate case and punish
32
Id. at., Section 53
33
Id. at., Section 54.

25
accordingly 34 -- for example the online defamation can be tied under laws for
defamation, online prostitution can be filed under laws prohibiting prostitution,
online gambling under laws prohibiting gambling in Nepal and so on.

4.1.2 Banking Offence and Punishment Act, 2008

Banking Offence and Punishment Act, 2008 is the law governing banking
operation and transaction. Section 6 of the act has prohibited obtaining or making
payment by way of abuse or unauthorized use of a credit card, debit card,
automated teller machine (ATM) card or other electronic means. 35The person
committing this crime shall be punished with recovery of amount and punishment
up to five years depending on the amount of money.36

4.1.3 Some Public (Crime and Punishment) Act, 1970

Some Public (Crime and Punishment) Act, 1970 has prohibited certain action
amounting it to be as public crime which includes commission of act to make
obscene show by using obscene speech, word or gesture in public place, 37 to print
or publish any obscene materials using obscene language or by any word or
picture which denotes obscene meaning; or to exhibit or sell or distribute such
obscene publication in public place other than the purpose of public health or

34
Id. at., Section 59.
35
Banking Offence and Punishment Act, 2008, Section 6.
36
Id. at, Section 15.
37
Some Public (Crime and Punishment) Act, 1970, Section 2(1)(c).

26
health science38, to threat or scold or tease or to commit any undue act or to
express any undue thing to anyone through telephone, letter or any other means
or medium with keeping intention to intimidate, terrorize or cause trouble or to
insult or defame or harass to him/her.39The act has stipulated penalty for
commission of crime as stipulated above with punishment of fine up to ten
thousand rupees and compensation to the victim.

4.1.4 Children's Act 1992

Children's Act, 1992, promulgated to protect and promote children's rights, to far
extent has addressed the prohibition of child pornography broadly. Section 16(2)
of the act prohibits making photograph of child for the purpose of engaging a
child in immoral profession. Section 16(3) prohibits publication, exhibition or
distribution of photograph or personal events or description of a child tarnishing
the character of such child. Section 53 of the act provides punishment for the
person committing such crime including seizure of the photograph and
reasonable compensation to children for adverse effect on character of child.

4.2 Other Legal Provision relating to cybercrime in Nepal

a. Information Technology Policy (2057)

b. E-Government Master Plan Report
38
Id. at, Section 2(1)(c1).
39
Id. at., Section 2(1)(j).

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c. E-Governance in Nepal
d. Cyber law enforcement in Nepal
e. Computer crime and intellectual property section

Beside these Nepal Police has played a great institutional effort as:

 Public awareness programs

 Co-operation with neighboring countries
 Immediate circulation of international criminals through INTERPOL
 Employment of Trained police on IT sector

4.3 Some of the relevant cases related to cyber law in Nepal

In Nepal in 2012 just nine (9) cybercrime offences were reported. After that in
2013 it was increased up to 19 and on 2014 it became 22 by increasing. It is
increasing day by day. Also many of the cases would not file to court due to
certain reason.
Some of the cases which are filed in a court are:
 Yuvaraj Sharma Shivakoti Vs. Narendra Devkota40
Fact: The defendant was caught by police on2069-6-12 and charge sheet was
registered on 2069-6-12 at Kathmandu District Court. The charge against the
defendant was that the defendant sent message using the abusive words and
vulgar text to applicant. The applicant requested so many times to the
defendant for not to do this kind of activities, but he failed.

40
Balaram Raut, An Analysis of Cyber Crime from Conceptual Perspectives: Where is Nepal, 37 NEPAL LAW
REVIEW,

28
 Legal provision: Applied legal provision on this case is (Section 47(1) and 76 of
the Electronic Transaction Act, 2063).
Decision: not given by Kathmandu district court.
 Sadiksha Piya Vs Manish Shrestha
The Charge sheet of this case was registered in Kathmandu district court on
2069-1-20 and the case was of hacking of password and uploading of naked
photo by defendant. The act to hack other password is illegal and it is
prohibited by law and the criminal has used this method and uploaded the
naked photo of victims which creates difficulty for her in life. Court gave the
verdict on the basis of Section 44 and 47 of the Electronic Transaction Act
2006.

 Sabina Karki Vs. Suresh Sharma Adhikari

The defendant misused the email ID for illegal entrance to closed document of
the company which harm the good will of the company because he violates
the law. The applicant request for punishment for the defendant and police
took the action. He was punished according to Section 44, 45 and 46 of the
Electronic Transaction Act 2006.

 Shova K.C. Vs. Bhojraj Lingden

The applicant complained the police that unknown person has used her email
ID and uploaded the naked photo of her in different sites. Police investigate
the case and found a person suspect to be involved on this activity. The
suspected person was found innocent and acquitted (cleared of blame) by
court.

29
 Maina Dhital vs. Bikash Thapa
On 2067-6-1 the Kathmandu district court granted the detention warrant to
put the defendant in jail. And again on 2067-6-21 Appellate court also
confirmed the order of Kathmandu district court. The major charges were that
defendant has sent her the sexy pictures and sexy words to her email ID and
harassed her from long time. Later on defendant was found innocent and get
freed later.

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 Chaptr 5 : Findings, Conclusion and Suggestions

5.1 Findings
From the above research researchers find out the following findings:

 In Nepal, the concept of cyber law is not fully developed. Also there is no any
debate about cyber law in any level of government so that the laws related
with cybercrime can be improved and revised. So when we talk about the
cyber-crime through online then we must think about its various aspects like;
perfect laws, regulating mechanism, well-trained Judged, public prosecutors
and police in the field of information technology.
 In all over the world the criminal law is used to regulate the misuse of the
cyber issues. In Nepal of course there is one law which is Electronic
Transaction Act, 2063. It has provided so many provisions related with the
online or cyber law. But this law is not so effective because the institutions
which have been authorized to apply it are not well known about the cyber
law or they are not well trained in this field. They do not have ideas about
cyber law. Even if we talk about the cases which are filed in Kathmandu district
court; only some of the cases have been decided and also accused party is
acquitted in such a cases. The reasons behind it are that the investigating
agency, the Nepal police, the public prosecutor as well as the judges are not
familiar with cyber law and its application. If we read the files of the cases,
there is nothing in the file that will help the police and public prosecutor which
will be strong evidence to support the cases. It means at one hand law is not
sufficient and it has not incorporated the issues which are existing in the field

31
 of cyber law and at the other hand; implementing agencies are not well
trained and well equipped with modern technology.
 Also, due to the advancement of technology and communication, devastating
form of Crime i.e. Cyber Crime is increasing day by day in Nepal. With the
development of internet, people have started their super knowledge of
Computer for personal benefit or harm motive through illegal procedure like
fraud, hacking etc.
 Nepal is being victim of cyber-attack and hacking from time to time because of
the low web security, cheap web development and lack of Ethical hacker
 Jurisdiction for fileing a case of cyber-crime is limited here in Nepal.

5.2 Conclusion
One of the main focal point of this seminar is to make other understand about
the cybercrime, cyber law that exist in Nepal, its jurisdiction and how cyber
law is working in our country. The problem facing us today is the rapid
progress of technology which has found its way around existing social control
systems and allowed individuals to do as they please with this technology. The
law and government are struggling to catch up but we feel that it is also
important to bring the common man into the fight against cyber-crime.

There is less awareness about cyber law on our country. Another factor is the
cost of the original product. In so many cases Nepal government is also not
able to bear the cost and using either pirated software. It is not possible to
eliminate cyber-crime from cyber space in it’s entirely.

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 5.3 Suggestions

On the basis of study conducted on the subject matter, the researcher wants
to give the following suggestions:
 The coordination between Nepal Police, public prosecutor and Nepal telecom
must be written in law because if it would happen then there would not be
confusion while they will use their power for investigating.
 There is cyber cell in Teku, Kathmandu which should be enlarged and there
must be separate information and technology department which will deal with
cyber-crime.
 At presently, only Kathmandu district court has been given the jurisdiction to
register the charge sheet and proceed the trial of cybercrime. This jurisdiction
should also be given to other district courts of Nepal. Otherwise it is very
difficult to assume the real problem existing in the online in Nepal.
 Cyber Crime should be taken as seriously and with effective measures.
 Website should be made keeping the qualitative and Security measure in
mind.
 Nepal should sign Regional and International Treaty and Agreements
Protecting the Cyber Security.
 To reduce such a activities related to cyber-crime our country should develop
high security level on each computerized system and also appoint ethical
hacker on a related organization.

33
 References

Books

1. The book "Cyber law and Cyber Crime" written Prashant Mali published
by Snow white, First Edition, 2005

2. The Book “Cyber Laws” written by Dr.Gupta and Agrawal published by

Premier, First Edition, 2008

3. The Book “Information Technology Law and Practice” written by Dr.Gupta

and Agrawal published by Premier, First Edition, 2009

4. The Book “A Practical Approach to Cyber Laws” written by K.Mani and

published by Kamal publishers, 2008

5. The Book “Information Technology Law” written by Diane Rowland and

Others, Published by Routledge Publication, Fourth Edition, 2012

6. The Book “The Law of Public Communication” written by

Kent.R.Middleton and others published by Longman Publication, Fourth Edition,
1997

34
7. The Book “Telecommunications Law and Regulation” written by IAN
Walden and John Angel published by Oxford, 2007

8. The book “Cyber laws” by Justice Yabindra Singh published by Universal law
publishing, second edition,2005

9. The book “Cyber space and cyber law” by Narayan Prasad Sharma published
by Koselee Prakashan, 2015

Journal Article

1. An article “An Analysis of Cyber Crime from Conceptual Perspective:

Where is Nepal?” written by Balaram Raut published in Nepal Law
Review, Volume 24, 2012
2. An article “Understanding Cybercrime in Nepalese Context” written by
Kishwor Sapkota published in Nepal Law Review, Volume 25, 2013

Internet

1. http://therisingnepal.org.np/news/16133
2. http://www.grin.com/en/e-book/305565/cybercrime-in-nepal (eta)
3. http://kathmandupost.ekantipur.com/news/2014-05-25/cybercrime-
without-cyber-rules.html (cybercrime)
4. https://www.gadgetbytenepal.com/5-cyber-crimes-nepal/
5. http://attrition.org/errata/charlatan/ian_murphy/threat_profile/
6. http://www.acfe.com/fraud-examiner.aspx?id=4294990799

35
 7. http://www.enigmasoftware.com/top-20-countries-the-most-
cybercrime/
8. https://www.gadgetbytenepal.com/5-cyber-crimes-nepal/
9. http://kathmandupost.ekantipur.
http://www.grin.com/en/e-book/305565/cybercrime-in-nepalcom/ne
ws/2http://www.imnepal.com/cyber-law-nepal/014-05-25/
cybercrime-without-cyber-rules.html
10. https://studymoose.com/cybercrime-computer-crime-essay
11. https://www.youtube.com/watch?v=DOkRB_jTnGw
12. http://kathmandupost.ekantipur.com/news/2016-03-09/nepal-
telecom-network-allegedly-hacked.html

Statute

1. Banking Offence Act 2007

2. Digital Signature Act 2011
3. Electronic Transaction Act 2063
4. Information and Technology Policy 2057

36
37