Meaning of Cyber Crime

Cyber Crime

includes crimes

Which are committed through use of computers

Or

Where a computer or computer network is the target of crime

As per NCRB, 21,796 Cyber crimes(2017); 27,248(2018); 44,546(2019).

In 2009 we had 420 cases

*Earlier affected affluent now affecting everyone

AMANDEEP SINGH
Conventional Crimes through
Computer

AMANDEEP SINGH
 Cyber Defamation
• Sending defamatory email,derrogatory comments on Social
networking sites
• Annoymity
• Injure the reputation and dignity due to global access

• Sec 66 A IT Act
• Sec 500,509 IPC

AMANDEEP SINGH
 Cyber Defamation
• SMC Pneumatics (India) Pvt. Ltd. v. Jogesh
Kwatra
(defamatory e-mails)

AMANDEEP SINGH
 Digital Forgery
• Making use of digital technology to forge a
document.
• Computer –Tool/Target
• E.g. Fake Entry passes/I-Cards
• Sec 65 Tampering with computer resource
• Sec 465, 468, 469IPC

AMANDEEP SINGH
 Cyber Pornography
• Stimulating Sexual /erotic activity over the
Internet
• Sec.67,Sec.67A,Sec67B of the ITAct
• Sec 292,293,294 IPC

AMANDEEP SINGH
 Cyber Stalking/Harassment
• Manish Kathuria Case
• State of Tamil Nadu Vs Suhas Katti
• Sec 67

AMANDEEP SINGH
 Crimes committed
on a
Computer Network/Financial Frauds

AMANDEEP SINGH
Hacking/Unauthorised Access
Sec 43(a)read with Sec 66 IT Act
Sec 379,406 IPC

AMANDEEP SINGH
 Denial of Service
Sec 43 (f) read with Sec 66

AMANDEEP SINGH
Email Spamming/E-mail Bombing

Causing disruption
Sec 43(e) and 66 IT Act
Sec 287 IPC

AMANDEEP SINGH
 E-Mail Spoofing
Sec 66(D) IT Act
Sec 417,419 and 465 IPC
(Cheating & Forgery)

AMANDEEP SINGH
 Data Theft
Sec 43(b)read with 66 IT Act
Sec 379,405 and 420 IPC
(Theft,Criminal breach of trust,Cheating)

AMANDEEP SINGH
 Cyber Terrorism
Sec 66(F) IT Act
Sec 153A IPC

AMANDEEP SINGH
 Spreading Virus,Worms etc.
Sec 43(c) and 43(e) read with Sec66
Sec 268 IPC
(Public Nuisance)

AMANDEEP SINGH
 Phishing
Se 66(D) IT Act
379 and 420 IPC
(Theft & Cheating)

AMANDEEP SINGH
 Identity Theft
Se 66(C) IT Act
419 IPC
(Cheating )

AMANDEEP SINGH
 E-Mail Fraud
Sec 66(C) & 66(D) IT Act
415and 420 IPC
Lottery Scam

AMANDEEP SINGH
 Credit Card Fraud
Sec 43(a),43(b) &43(g) read with 66 IT Act
420,467,468 and 471 IPC
(Cheating & Forgery)

AMANDEEP SINGH
Web Jacking(Taking Control over Website)
Sec 65 IT Act
Sec 384 IPC
(Extortion)

AMANDEEP SINGH
 Electronic Signature
Sec 73 & 74 IT Act
Sec 417& 420 IPC
(Extortion)

AMANDEEP SINGH
 IPR Aspects

• Cybersquatting
• Linking
• Framing
• Meta tags
• Liability of intermediaries
Electronic Evidence
Electronic Evidence is any probative information stored or transmitted in digital form that
can be used at trial.

Information of probative value that is stored or transmitted in ‘binary form’.

Not only limited to computers but extends to digital devices such as telecommunication or
electronic multimedia devices like cell phones ,cameras etc.

Where do we find E-Evidence?

Storage devices which could be built in like cell phone ,Computer Hard disk

Or external like External Hard disk, Memory Cards Pen Drives etc.

In Digital files ,emails,photographs, Word processing documents,Message

History ,Spreadsheets, Internet Browser History,computer printouts,GPS Track
Logs,Server logs,Video Files, Audio Files,Routers, Backup Files etc.
Classification

Volatile:Which remains in the ditial media till it is powered .Vanishes as the power supply is
removed from the storage device e.g. RAM

Non-Volatile: Which remais even after the power is removed e.g.Hard Disk,Pen
Drive ,Mobile ,Tablets,CD/DVD etc.
Digital Foot Print : Every time we use use Internet we leave our Foot print

Voluminous,difficult to erase,easily modified, easily duplicated etc.

 Criminal Activities relating to Social Media

Social Media Networks are becoming source for the discovery and investigation of criminal
activity
Profiles can be used to determine the identity and locating perpetrators
Computer Forensics or Digital Forensics: a branch of Forensic science pertaining to legal
evidence found in computers and other devices

The Goal is to ascertain the current state of digital artifact.

Digital artifact can be of any content types including text, audio, video, image, animation or a
combination.

Digital artifact includes:

● A computer system storage medium(Hard Disk or CD-ROM)
● An electronic document(An Email or Image)
● Even sequence of packets moving over a computer network

Overall Picture is: Digital Technology is used in fighting Criminals

Meta Data :That describe other Data(For E.g. Every digital image will have a meta data about
that image)
There are softwares to extract meta data.
 The Indian Evidence Act &The IT Act

Under IT Act :Computer[Sec 2 (1) (i)];Communication device[Sec 2 (1) (ha)];Computer

Network[Sec 2 (1) (j)];Preamble;Section 4(Legal Recognition to e-Records);Sec 5(Legal
recognition to e Signatures);Sec7 (retaining in electronic form);Sec 7A(Audit of documents,
etc., maintained in electronic form);Electronic Form [Sec 2(1)(r)]

Definition of Evidence has been ammended to include electronic evidence

Under Section 3 of the The Indian Evidence Act ,Documentary Evidence now includes
electronic records produced for the inspection of the Court

‘Electronic records’ has been given the same meaning as assigned under the Section 2 (1)(t)
of the IT Act 2000

"electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic
form or micro film or computer generated micro fiche;
Definition of ‘admission ‘ under Section 17 of the Indian Evidence Act has been changed to
include a statement in oral,documentary or electronic form which suggests any inference as
to any fact in issue or relevance.

Section 22 A of the Indian Evidence Act

When oral admissions as to contents of electronic records are relevant.

It provides that Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of
the electronic record produced is in question
 Section 65 A and Section 65 B of the Indian Evidence Act(Most Talked about)

Position before the year 2000

Before the year 2000, courts used to adopt Sections 61 to 65 of the Act while deciding the admissibility of electronic records. Indubitably,
electronic record is a document and the content of such document could be proved either by primary evidence or by secondary evidence.
When the original document itself is produced before the Court for its inspection, it is called as primary evidence as per Section 62 of the
Act. The contents of an original document must be proved by producing the document itself. If the original document is not available,
there arises a need for producing secondary evidence.

Section 63 of the Act provides for what all qualify as secondary evidence. For the purpose of electronic records, Section 63 (2) was used,
which states that

“Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with
such copies.”

In case the original document/primary evidence is not available with the party who wants to adduce it as evidence or if it is not possible
to get the original document, secondary evidence is used for proving its content as per the conditions laid down under Section 65 of the
Act. In other words, in case of an electronic record, if a party can produce the original record itself, then there is no need to take recourse
as mentioned under Section 65 of the Act. However, if it becomes impossible for a party to produce the original document/record itself,
then it is absolutely necessary to comply with Section 65 of the Act for producing secondary evidence in order to prove the contents of
such original record.
Position after the year 2000
Section 65A provides that the contents of an electronic record - which was earlier used to be proved in accordance with Sections
61 to 65 of the Act - may be proved in accordance with the provisions of Section 65B.

Now the long standing debate pertains to Section 65B of the Act, which has perplexed courts deciding admissibility of electronic
evidence during the course of trial. According to this provision, any information contained in an electronic record which is printed
on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a
document, provided the conditions mentioned under this section are satisfied.

In other words, the legislature, by way of a deemed fiction, has made a computer output also a document/primary evidence,
provided the conditions mentioned in Section 65B of the Act are fulfilled. Before the year 2000, it was treated as secondary
evidence but now after the enactment of Section 65B, it shall be treated as a document/primary evidence in order to prove the
contents of the original.
The Condition specified under Section 65 B (2)

(a) the computer output containing the information was produced by the computer during the period over which the computer was
used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person
having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so
contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in
which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic
record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the
ordinary course of the said activities.
Sec 65 B (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of
the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose
of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a
person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant
activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section
it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

In other words:

Sub-section 4 of Section 65B of the Act states that when a party desires to produce
secondary evidence as primary evidence as per Section 65B (1), a certificate is required
to be produced stating any of the things mentioned under Section 65B (4) of the Act.
When a certificate so required is produced by a party with regard to a computer output, it
shall be deemed to be treated as a document/primary evidence.
A legal conundrum arose as to whether the requirement of certificate mentioned under
Section 65B(4) is a mandatory pre-condition before producing a secondary evidence as
a document/primary evidence?
The first case in which such issue arose was Navjot Sandhu v. NCT Delhi 2005(Parliament
Attack Case) wherein a two-judge Bench of the Supreme Court (dealing with the proof
and admissibility of mobile telephone call records) held that even if a certificate is not
produced as per the requirement mentioned under Section 65B (4) of the Act, electronic
evidence is not held to be per se inadmissible. It can still be proved as per Section 63 read
with Section 65 of the Act as secondary evidence. The issue with such position was that
the Supreme Court, by giving such wide interpretation, had prima facie defeated the
legislative intent behind enacting Section 65B of the Act.

For almost a decade, the law laid down in Navjot Sandhu’s case was followed throughout
the country. The said position was re-considered in Anvar P.V Vs P.K Basheer& others 2014
case, wherein a three-judge Bench of the Supreme Court rectified the error
committed in former case and held that Section 65B is a special provision that overrides
Section 65, which is a general provision. The Court also held that any documentary
evidence by way of an electronic record shall be proved only when accompanied by a
certificate as prescribed under Section 65B(4). In absence of such certificate, secondary
evidence of electronic records/computer output is per se inadmissible in evidence.
In Sonu v. State of Haryana, although the Court relied upon the decision in Anvar’s case, it held that Section 65A and Section 65B relate to
mode of proof of the electronic record and not of its admissibility. The requirement of certificate is merely is a procedural defect which can
be cured when an objection is raised by a party when the document was adduced as evidence during the course of trial and not at any
other stage, it was held.

The said position also needs to be re-considered in view of the very title of Section 65B, which starts with the word ‘admissibility’ of
electronic records and not their proof.

In Shafhi Mohammed’s case, a two-judge Bench took a view contrary to Anvar’s case and held that requirement of certificate under Section
65B(4) is procedural and can be relaxed by the court in the interest of justice. Such a requirement is not mandatory if a party is not in a
position to produce it. Moreover, it is also open for a party to produce a computer output as secondary evidence in terms of Sections 63
and 65 of the Act.
The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors (2020)
case had finally taken note of the conflicting views taken in Anvar’s case and Shafhi Mohammed’s case, and
referred the matter to a larger bench for re-consideration.

The salient features of the decision are as follows:

1. Certificate u/s 65B (4) of the Evidence Act is a condition precedent to the admissibility of evidence by way of electronic
record;
2. Oral evidence in place of such certificate cannot satisfy Section 65B (4);
3. So long as the hearing in a trial is not over, the certificate can be directed to be produced;
4. the certificate is not necessary if the original document itself is produced, which can be done by the owner of a computer in
the witness box and proving that the computer is owned and/or operated by him
 State of Maharashtra vs Dr. Praful B.Desai
AIR 2003SC 2053

Question addressed : Whether a witness can be examined by means of Video Conference

The SC observed that Video Conferencing is an advancement of Science &Technology which

permits seeing , hearing and talking with someone who is not physically present with the
same facility and ease if they were physically present.
The legal requirement for the presence of the witness does not mean actual physical
presence.

The Court allowed it concluded that there is no reason why the examination of a witness by
Video conferencing should not be essential part of electronic evidence.

(progessive outlook)
 Amitabh Bagchi vs Ena Bagchi
AIR 2005 Cal 11

Held:Definition of electronic records includes video conferencing

Jagjit Singh Vs State of Haryana

2006 11SCC1
The Supreme Court considered the digital evidence in the form of interview transcripts from
the Zee News TV Channel, AajTak TV Channel and The Haryana News of Punjab Today TV
Channel
 Abdul Rahaman Kunji vs The State of West Bengal 2014

Calcutta HC held that an email downloaded and printed from the email account of
the person can be proved by virtue of Section 65 B r/w Sec 88A of Evidence Act.

The testimony of the witness to carry out such procedure to download and print the
same is sufficient to prove the electronic communication
 MLAT:Introduction
• Fighting cyber crime is pervasively cross-border. Evidence
related to cyber crimes is typically found in multiple
jurisdictions, and a rapid response is needed to preserve
electronic evidence.
• By the early 2000s, nations around the world recognised that
cyber crime had become a vexing issue that affected virtually
all nations. Despite the impacts experienced by individuals,
businesses,and governments in countries prosecution of
these crimes was difficult for at least two reasons: one was
that there were no international standardised definitions of
cyber crime and the second was that the legal processes to
transfer electronic evidence across borders were either non-
existent or inadequate.
 BACKGROUND
• Sec 105 of Cr.PC provides for reciprocal
arrangements made by the central
government with foreign governments with
regard to service of summons
/warrants/judicial process
 MLAT
• Countries all over the world have signed Mutual Legal
Assistance Treaties (MLATs) to establish cross border
cooperation. MLATs are considered very important tools for
law enforcement agencies, governments and the private
sector.
• A MLAT is a formal agreement between countries to seek and
exchange evidence located in their jurisdictions upon requests
from another country that is party to the treaty.
• Typically, the relevant evidence, whether physical, electronic,
or testimonial, is related to criminal activity and is sought to
aid law enforcement in the requesting state
• Under Secy(Legal) IS-II Divison MHA
• Indian Embassy/Mission
• Designated Authority in another Country
• During the investigation of the 26/11 terror
attacks in Mumbai, the NIA relied on the India-
US MLAT to access evidence on the Headley-
Rana case – the evidence finally formed a part
of the charge sheet filed by the agency. On the
other hand, the agency sent a letters
rogatory(Sec 166A of Cr.PC) to Pakistan in the
same case to obtain evidence from the
country.
 India US MLAT
• On October 17, 2001, approximately one month after the September 11 attack
on the US, the IndiaUS MLAT was signed with both states emphasising
increasing bilateral cooperation on counterterrorism.

• The India-US MLAT allows the two countries to offer the “widest measure of
mutual assistance” to each other in the investigation and prosecution of
terrorism, narco-trafficking, economic offences and organised crime.

• The MLAT designates one central authority in each country to process

incoming requests. In the US, the designated central authority is the Office of
International Affairs at the US Department of Justice (DOJ) or a person
designated by the DOJ. In India, the central authority is the Ministry of Home
Affairs (MHA) or a person designated by MHA. Incoming requests are received
by the central authority within the executive branch and are executed with
the cooperation and approval of the competent federal court.
 About India US MLAT
• An Indian investigating agency seeking evidence in the US would submit a request to the
MHA. The MHA would then examine the request for compliance with the treaty and laws of
the requested state and would send the request to the DOJ.

• On receiving an MLA request, the DOJ will ensure that the incoming request is consistent
with US constitutional protections, including the Fourth Amendment probable cause
requirement. The DOJ will also examine whether the request is consistent with First
Amendment speech protections. The DOJ reviews incoming MLA requests to screen out
evidence that will be used to prosecute speech crimes, such as criminal libel, political
dissent, or blasphemy.

• The US DOJ would then review the request and, once approved, forward the request to a
prosecuting attorney. After review, this prosecuting attorney would bring the request from
the Indian law enforcement entity before a US federal judge. If the judge determined that
the Indian request met the relevant US legal requirements, the judge would issue an order
requiring the production of the documents by the US service provider. The company would
then produce the specified content, which would then be reviewed by the US DOJ to ensure
compliance with US laws. The US DOJ would next release the permitted content to MHA in
India. Finally, MHA would provide the content to the Indian Police
Law
Enforcement MHA
Agency

Office of
U.S Federal Judge
International Affairs
DOJ
Service
Provider

DOJ
MHA
LEA

DR.AMANDEEP SINGH RMLNLU LUCKNOW

Regardless of whether a request from Indian law enforcement is submitted via
MLAT request or the letter rogatory, the request would need to show “probable
cause” (the US legal standard), despite the fact that the crime occurred outside
the US, the victim and suspect are not US persons, and the electronic evidence
is being requested by foreign law enforcement. The “probable cause” standard
is stricter

DR.AMANDEEP SINGH RMLNLU LUCKNOW

• Response Time 6 to 24 Months
• A 2013 US official report found that the
average time from start to finish for this
process is an estimated average of at least 10
months
 Removal of Ambiguity
 Bringing Equity in Internet Governance
 Regular changes in law
 Generating awareness
 Implementation of law
 Standard Operating Procedures
 Self regulation

DR.AMANDEEP SINGH RMLNLU LUCKNOW

DR.AMANDEEP SINGH RMLNLU LUCKNOW