======================

JUDICIAL
PRONOUNCEMENT

ON

CYBER LAW

WITH SPECIAL

REFERENCE TO

I.T. ACT.

======================
:::: ARJUN P RANDHIR :::
(B.com., L.L.B., L.L.M.,D.L.P)
 INDEX

1. OVERVIEW OF RULES ISSUED UNDER THE IT ACT, 2000…

2. INFORMATION TECHNOLOGY (AMENDMENT) ACT, 2008

3. OBJECT OF THE INFORMATION TECHNOLOGY ACT, 2000..

4. THE CORE OBJECTS OF THE INFORMATION

TECHNOLOGY ACT 2000 ………………………………………

5. CYBER LAW ENCOMPASSES LAWS RELATING TO:………

6. CYBER LAW IN INDIA……………………………………………..

7. THE INDIAN PENAL CODE, 1860………………………………..

8. THE INDIAN EVIDENCE ACT 1872………………………………

9. The Bankers’ Books Evidence (BBE) Act 1891:………………

10. POSITIVE ASPECTS OF INFORMATION TECHNOLOGY

ACT,2000……………………………………………………………

11. MOBILE CELL PHONES AND THE INFORMATION

TECHNOLOGY ACT, 2000 : ……………………………………..

12. JUDICIAL RESPONSE IN INDIA BEFORE THE

INFORMATION TECHNOLOGY ACT, 2000 ……………………

12.1 RANJIT D. UDESHI V. STATE OF MAHARASHTRA ……….

12.2 MUHAMMED IBRAHIM V. PUBLIC PROSECUTOR1, ……….

12.3 SUKANTO HALDER V. STATE OF WEST BENGAL, ……….

1
Muhammed Ibrahim v. Public Prosecutor, (1963) 29 M.L.J. 289; See also State of
Karnataka v. Basheer, 1979 Cri.L.J. 1183
12.4 K.A. ABBAS V. UNION OF INDIA, ……………………………..

12.5 RAJ KAPOOR V. STATE OF MAHARASHTRA, …………..

12.6 BOBBY ART INTERNATIONAL ETC. V. OM PAL SINGH

HOON,…………………………………………………………….

12.7 RAJKAPUR V. LAKSHMAN AND OTHERS, ………………

13. JUDICIAL RESPONSE IN INDIA AFTER THE INFORMATION

TECHNOLOGY ACT, 2000 ………………………………………

13.2 AIR FORCE BAL BHARTI SCHOOL CASE,…………………

13.3 TAMIL NADU V. SUHAS KATTI, ………………………………

13.4 BHUBANESWAR CASE ……………………………………….

13.5 DELHI POLICE SCHOOL AND MULTIMEDIA MESSAGE

SERVICE ………………………………………………………..

13.7 ANTHONY V. STATE OF KERALA, '………………………..

14. FACTORS TO BE TAKEN INTO CONSIDERATION FOR

DETERMINING LIABILITY IN ONLINE DEFAMATION …..

15. IMPORTANT JUDGMENTS ON IT ACT……………………..

15.1 STATE V. MOHD. AFZAL2…………………………………...

15.2 ADMISSIBILITY OF ELECTRONIC-EVIDENCE…………….

15.3. CONDITIONS FOR THE ADMISSIBILITY OF ‘ELECTRONIC

EVIDENCE…………………………………………………………

15.4. ANVAR P.V V. P.K.BASHEER & ORS3 ………………………

2
(2003) 3 JCC 1669; (2003) SCCONLINE DEL 935

3
Civil Appeal No. 4226 of 2012, decided on September 18, 2014
15.5 AJMAL KASAB CASE4,……………………………………….

15.6 STATE (NCT OF DELHI) V. NAVJOT SANDHU @ AFSAN

GURU5 ……………………………………………………………

16. JUDGMENT ON APPRECIATING AND ANALYZING

ELECTRONIC EVIDENCE………………………………………

17. ADMISSIBILITY OF ELECTRONICALLY RECORDED

CONVERSATION………………………………………………….

18. ADMISSIBILITY OF INTERCEPTED TELEPHONE CALLS…

19. EXAMINATION OF A WITNESS BY VIDEO CONFERENCE

AND ITS ADMISSIBILITY STATE OF MAHARASHTRA V DR

PRAFUL B DESAI6 ……………………………………………….

20. TWENTIETH CENTURY FOX FILM CORPORATION VS. NRI

FILM PRODUCTION ASSOCIATES (P) LTD7………………….

21. ADMISSIBILITY OF EVIDENCE RECORDED ON CD…………

22. ADMISSIBILITY OF INFORMATION RECORDED IN THE …...

23. CLOSED CIRCUIT TELEVISION (CCTV.)……………………….

24. K. RAMAJAYAM @ APPU V. THE INSPECTOR OF POLICE,

MADURAVOYAL POLICE STATION, CHENNAI.i……………..

25. KISHAN TRIPATHI @ KISHAN PAINTER V. THE STATE8, …

26. TAPE RECORDED………………………………………………….

4
(2012) 9 SCC 1
27. R.M. MALKANI V. STATE OF MAHARASHTRA9,……………..

28. ZIYAUDDIN BARHANUDDIN BUKHARI V. BRIJMOHAN

RAMDASS MEHRA…………………………………………………

29. R.K ANAND V. REGISTRAR, DELHI HIGH COURT10,……….

30. MOHD. ARIF V. STATE (NCT OF DELHI)11…………………….

31. PRASHANT BHARTI V. STATE (NCT OF DELHI)12,………….

32. THE IMEI NUMBER OF THE HANDSET, FROM WHICH THE

APPELLANT-ACCUSED WAS MAKING CALLS BY USING A

MOBILE PHONE (SIM)…………………………………………….

33. SOCIETY DES PRODUCTS NESTLE S.A. V. ESSAR

INDUSTRIES, 2006 SCC ONLINE DEL 1675: (2006) 33 PTC

469……………………………………………………………………

34. ANVAR P.V. VERSUS P.K. BASHEER AND OTHERS (CIVIL

APPEAL NO. 4226 OF 2012 DECIDED ON : 18-09-2014)

2014 10 SCC 473,…………………………………………………..

35. WHAT IS NATURE AND MANNER OF ADMISSION OF

ELECTRONIC RECORDS………………………………………....

36. STATE (NCT OF DELHI) V. NAVJOT SANDHU ALIAS

AFSAN GURU13 , ………………………………………………….

37. P.B. DESAI (DR.) OTHERS V. STATE OF MAHARASTRA14,.

10
2009 (10) SCALE 164.
11
(2011) 13 SCC 621: (2012) 2 SCC (Cri) 766.
12
(2013) 9 SCC 293; (2013) 3 SCC (Cri) 920.
13
(2005) 11 SCC 600
38. SMC PNEUMATICS (INDIA) PVT. LTD. V. JOGESH

KWATRA15…………………………………………………………

39. THE APEX COURT IN MODI ENTERTAINMENT NETWORK

AND ANR V. W.S.G. CRICKET PVT. LTD16. …………………..

40. PURPOSEFUL AVAILMENT TEST………………………………

41. THE SUPREME COURT IN KUSUM INGOTS & ALLOYS

LIMITED V. UNION OF INDIA AND ANR17 …………………….

42. INDIAN CASE LAWS VIS-À-VIS E-COMMERCE………………

43. NATIONAL ASSOCIATION OF SOFTWARE AND SERVICE

COMPANIES VS. AJAY SOOD & OTHERS18, ………………...

44. SMC PNEUMATICS (INDIA) PRIVATE LIMITED V. JOGESH

KWATRA19…………………………………………………………

45. SYED ASIFUDDIN & ORS V STATE OF ANDHRA PRADESH

& ANOTHER20………………………………………………………

46. CASIO INDIA CO. LIMITED V. ASHITA TELE SYSTEMS

PVT. LIMITED[43] ………………………………………………….

47. BANYAN TREE HOLDING (P) LIMITED V. A. MURALI

KRISHNA REDDY21………………………………………………..

14
AIR 2003 SC 2053
15
Suit No. 1279/2001. This case is still pending. Sited from “Ascertaining Cyber Jurisdiction in Cyber Space:
Jurisprudential Understanding and A Comparative Analysis” published by AIR Journal and available at
http://www.allindiareporter.in/ articles/index.php?article=1022 and orders available on Delhi High Court
website http://www.delhihighcourt.nic.in/dhc_ case_status_list_new.asp
16
AIR 2003 SC 1177
17
(2004) 6 SCC 254
18
119 (2005) DLT 596, 2005 (30) PTC 437 Del
19
Being Suit No. 1279/2001 available at http://cyberlaws.net/cyberindia/defamation.htm
20
2005 CrLJ4314 (AP)
48. RAMANATHAN CHETTIAR V SOMA SUNDERAM

CHETTIAR …………………………………………………………..

49. STATE OF TAMIL NADU VS SUHAS KATTI …………………..

50. SYED ASIFUDDIN AND ORS. V. THE STATE OF AP. &

ANR., 2005CRILJ4314…………………………………………….

51. P.R. TRANSPORT AGENCY VS. UNION OF INDIA (UOI)……

52. SMC PNEUMATICS (INDIA) PRIVATE LIMITED V. JOGESH

KWATRA…………………………………………………………….

53 .RITU KOHLI CASE…………………………………………………

54. AVNISH BAJAJ VS. STATE (N.C.T.) OF DELHI………………

55. SOCIO -LEGAL IMPACT OF CYBER FRAUD IN INDIA………

56. BANGALORE CYBER FRAUD CASE …………………………..

57. CLICK FRAUD ……………………………………………………...

58. PUNE CYBER FRAUD CASE …………………………………….

59. KARAN BAHREE’S CASE ………………………………………..

60. LOTTERY FRAUD AND CYBER SQUATTER ………………….

61. WEST BENGAL CYBER FRAUD CASE ………………………..

62. HSBC, BANGALORE CYBER FRAUD CASE …………………

63. KOLKATA CYBER FRAUD CASE SULAGNA ROY…………..

64. CYBER FRAUD TRACED BY DETECTIVE DEPARTMENT

OF MUMBAI ………………………………………………………

65. NIGERIAN SCAM IN DELHI ……………………………………..

21
CS (OS) 894/2008 (High Court of Delhi, 23rd November 2009) (India)
66. ABDUL KADIR’S CASE …………………………………………..

67. CYBER PORNOGRAPHY …………………………………………

68. DIFFERENCE BETWEEN PRIMARY AND SECONDARY

EVIDENCE IN REFERENCE TO ELECTRONIC EVIDENCE…

69. LACUNAS IN THE IT ACT 2000 AMENDED BY THE IT ACT,

200822………………………………………………………………..

70. REVIEW ……………………………………………………………..

71. ‘CONCLUSIONS AND SUGGESTIONS’ ………………………..

72. TIPS FOR SECURING CELL PHONES …………………………

73. IMPORTANT WEBSITES & ADDRESSES………………………

SCHEDULE-1 : OFFENCE - IDENTITY OF THEFT , EMAIL FRAUD, EMAIL SPOOFING

PORNOGRAPHY, CHILD PORNOGRAPHY, HACKING, DATA THEFT
SCHEDULE-2 : THE INFORMATION TECHNOLOGY ACT,2000 AT A GLANCE

SCHEDULE-3 : SUBSEQUENT DEVELOPMENTS

SCHEDULE-4 : RECENT AMENDMENTS AS INTRODUCED BY THE IT AMENDMENT

ACT, 2008
SCHEDULE-5 : OFFENCES AND PENALTIES

TOP

22
Available at www.prasantmali.com visited on 23/04/2016.
1. OVERVIEW OF RULES ISSUED UNDER THE IT ACT, 2000

1.1 HISTORY BEHIND THE ENACTMENT OF CYBER LAWS

The United Nations Commission Trade Law (UNCITRAL) adopted the Model

Law on Electronic Commerce in 1996 in order to bring uniformity in the law of

different countries. The General Assembly of the United Nations by

Resolution dated 30th January 1997, recommended that all the states should

give favorable considerations to this Model Law when they enact or revise

their laws.

The Ministry of Commerce Government of India created the first draft of

the legislation following these guidelines termed as “E Commerce Act 1998”.

Since later a separate ministry for Information technology came into being

,the draft was taken over by the new ministry which redrafted the legislation

as “Information Technology Bill 1999”. This draft was placed in the Parliament

in December 1999 and was passed in May 2000. After the assent of the

President on June 9, 2000, the Act was finally notified with the effect from

October 17,2000. The preamble to the IT Act, 2000 points out a three fold

objective , firstly, to provide legal recognition for transactions carried out

through electronic means, secondly, to facilitate the electronic filing of

documents with government agencies, and thirdly, to amend certain Acts,

interalia, the Indian Penal Code, 1860 Indian Evidence Act, 1872. The IT Act,

2000 gave legal validity and recognition to electronic documents and digital

signatures and enabled conclusion of legally valid & enforceable e-contracts.

It also provided a regulatory regime to supervise the Certifying Authorities

issuing digital signature certificates and created civil and criminal liabilities for

contravention of the provisions of the IT Act, 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.

2. INFORMATION TECHNOLOGY (AMENDMENT) ACT, 2008

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. The IT Act contains of 90 sections spread over 13 chapters

(sections 91, 92, 93 and 94 of the principal Act were omitted by the

Information Technology (Amendment) Act 2008 and has 2 schedules

(schedule III and schedule IV was omitted by the information technology

(Amendment) Act 2008).

3. OBJECT OF THE INFORMATION TECHNOLOGY ACT, 2000.

Information Technology Act 2000 is a prime legislation dealing with

cybercrime, ecommerce, cyber terrorism and data protection and privacy. The

adoption of information technology law has facilitated the growth of

ecommerce and trade and provided law enforcing agency the iron hand to

deal with cyber offences effectively, making the country technologically

vibrant. 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.”

4. The Core Objects Of The Information Technology Act 2000 Are As

Under

a) To provide legal recognition for records.

b) To provide legal recognition of digital signature. Since traditional signatures

are prone to forgery and tampering hence they are insufficient for online

transactions and contracts. Online transaction requires unique and strong

protection which is fulfilled by digital signatures.

c) To provide legal recognition to e governance.

d) To provide punishments for cyber crimes. The offences were both novel

and hi-tech hence required new categorization which was dealt under

Information Technology Act 2000.

5. CYBER LAW ENCOMPASSES LAWS RELATING TO:

1. Cyber Crimes

2. Electronic and Digital Signatures

3. Intellectual Property

4. Data Protection and Privacy

Cyber crimes are unlawful acts where the computer is used either as a

tool or a target or both. The enormous growth in electronic commerce (e-

commerce) and online share trading has led to a phenomenal spurt in

incidents of cyber crime. Electronic signatures are used to authenticate

electronic records. Digital signatures are one type of electronic signature.

Digital signatures satisfy three major legal requirements – signer

authentication, message authentication and message integrity. The

technology and efficiency of digital signatures makes them more trustworthy

than hand written signatures. Intellectual property is refers to creations of the

human mind e.g. a story, a song, a painting, a design etc. The facets of

intellectual property that relate to cyber space are covered by cyber law.

These include:

5.1 copyright law in relation to computer software, computer source code,

websites, cell phone content etc,

5.2 software and source code licenses

5.3 trademark law with relation to domain names, meta tags, mirroring,

framing, linking etc

5.4 semiconductor law which relates to the protection of semiconductor

integrated circuits design and layouts,

5.5 patent law in relation to computer hardware and software.

Data protection and privacy laws aim to achieve a fair balance between

the privacy rights of the individual and the interests of data controllers such as

banks, hospitals, email service providers etc. These laws seek to address the

challenges to privacy caused by collecting, storing and transmitting data

using new technologies.

6. CYBER LAW IN INDIA

In India, cyber laws are contained in Information Technology Act 2000 which

came into force on October 17, 2000. The main purpose of the Act is to

provide legal recognition to electronic commerce and to facilitate filling of

electronic records with the government. The following Acts, rules and

regulations are covered under cyber laws:

1) Information Technology Act,2000.

2) Information Technology (Certifying authorities)Rules, 2000.

3) Information Technology (Security procedure),Rules 2004.

4) Information Technology(Certifying Authority Regulations)2001.

The major Acts, which got amended after enactment of Information

Technology Act, 2000.

7. The Indian Penal Code, 1860

The Indian Penal Code was amended by inserting the word ‘electronic’

thereby treating the electronic records and documents on a par with physical

records and documents. The Sections dealing with false entry in a record or

false document etc (e.g. 192, 204, 463, 464, 464, 468 to 470, 471, 474, 476

etc) have since been amended as ‘electronic record and electronic document’

there by bringing within the ambit of IPC. Now, electronic record and

electronic documents has been treated just like physical records and

documents during commission of acts of forgery or falsification of physical

records in a crime. After the above amendment, the investigating agencies

require to file the cases charge-sheet quoting the relevant sections from IPC

under section 463,464, 468 and 469 read with the ITA/ITAA under Sections

43 and 66 in like offences to ensure the evidence and/or punishment can be

covered and proved under either of these or under both legislation.

8. The Indian Evidence Act 1872

Prior to enactment of ITA, all evidences in a court were in the physical form

only. After existence of ITA, the electronic records and documents were

recognized. The definition part of Indian Evidence Act was amended as “all

documents including electronic records” were substituted . Other words e.g.

‘digital signature’, ‘electronic form’, ‘secure electronic record’ ‘information’ as

used in the ITA, were also inserted to make them part of the evidentiary

importance under the Act. The important amendment was seen by

recognition of admissibility of electronic records as evidence as enshrined in

Section 65B of the Act.

9. The Bankers’ Books Evidence (BBE) Act 1891:

Before passing of ITA, a bank was supposed to produce the original ledger or

other physical register or document during evidence before a Court. After

enactment of ITA, the definitions part of the BBE Act stood amended as:

“’bankers ‘ books’ include ledgers, day-books, cashbooks, account-books and

all other books used in the ordinary business of a bank whether kept in the

written form or as printouts of data stored in a floppy, disc, tape or any other

form of electromagnetic data storage device”. When the books consist of

printouts of data stored in a floppy, disc, tape etc, a printout of such entry

require to be certified in accordance with the provisions ,to the effect that it is

a printout of such entry or a copy of such printout by the principal accountant

or branch manager; and (b) a certificate by a person in-charge of computer

system containing a brief description of the computer system and the

particulars of the safeguards adopted by the system to ensure that data is

entered or any other operation performed only by authorized persons; the

safeguards adopted to prevent and detect unauthorized change of data and

to retrieve data that is lost due to systemic failure. The above amendment in

the provisions in Bankers Books Evidence Act recognized the printout from a

computer system and other electronic document as a valid document during

course of evidence, provided, such print-out or electronic document is

accompanied by a certificate in terms as mentioned above.

10. Positive aspects of Information Technology Act,2000.

10.1. Prior to the enactment of the IT Act, 2000 even an e-mail was not

accepted under the prevailing statutes of India as an accepted legal form of

communication and as evidence in a court of law. But the IT Act, 2000

changed this scenario by legal recognition of the electronic format. Indeed,

the IT Act, 2000 is a step forward.

10.2. From the perspective of the corporate sector, companies shall be able

to carry out electronic commerce using the legal infrastructure provided by

the IT Act, 2000. Till the coming into effect of the Indian Cyber law, the growth

of electronic commerce was impeded in our country basically because there

was no legal infrastructure to regulate commercial transactions online.

10.3. Corporate will now be able to use digital signatures to carry out their

transactions online. These digital signatures have been given legal validity

and sanction under the IT Act, 2000.

10.4. In today’s scenario, information is stored by the companies on their

respective computer system, apart from maintaining a back up. Under the IT

Act, 2000, it shall now be possible for corporate to have a statutory remedy if

any one breaks into their computer systems or networks and causes

damages or copies data. The remedy provided by the IT Act, 2000 is in the
form of monetary damages, by the way of compensation, not exceeding Rs.

1, 00, 00,000.

10.5. IT Act, 2000 has defined various cyber crimes which includes hacking

and damage to the computer code. Prior to the coming into effect of the

Indian Cyber law, the corporate were helpless as there was no legal redress

for such issues. But the IT Act, 2000 changes the scene altogether.

A)The Information Technology (Reasonable security practices and

procedures and sensitive personal data or information) Rules, 2011 These

rules are regarding sensitive personal data or information and are applicable

to the body corporate or any person located within India. It basically requires

entities holding sensitive personal information of users to maintain certain

specified security standards. B) The Information Technology (Electronic

Service Delivery) Rules, 2011 These rules provide for creation of a system of

electronic delivery of services. Under the Electronic Service Delivery Rules

the government can specify certain services, such as applications,

certificates, licenses etc, to be delivered electronically.

C) The Information Technology (Intermediaries Guidelines) Rules, 2011

These rules provide the rights and responsibilities of internet intermediaries in

India. If the Internet intermediaries follow these rules and exercise proper

cyber due diligence, they are entitled to a “safe harbour protection”.

Otherwise, they are liable for various acts or omission occurring at their

respective platforms once the matter has been brought to their notice.
D) The Information Technology (Guidelines For Cyber Cafe) Rules, 2011
According to these guidelines, cyber cafes should register themselves with an

appropriate government agency, and provide services to users only after

establishing their identity. It also deals with maintenance of records of such

identity as well as log of sites visited, among others.

E) The Cyber Appellate Tribunal (Salary, Allowances And Other Terms And
Conditions Of Service Of Chairperson And Members) Rules, 2009
These rules provide for the salary, allowances and terms of service of the

Chairperson and members of the Cyber Appellate Tribunal.

F) The Cyber Appellate Tribunal (Procedure For Investigation Of Misbehavior

Or Incapacity Of Chairperson And Members) Rules, 2009

These rules provide for the procedure for investigation of misbehavior or

incapacity of the Chairperson and members of the Cyber Appellate Tribunal.

G) The Information Technology (Procedure And Safeguards For Blocking For

Access Of Information By Public), 2009

The rules provide for the designation of an officer of the Central Government
for the purpose of issuing direction for blocking for access by the public any
information generated, transmitted, received, stored or hosted in any
computer resource. It provides the procedure and the safeguards to be
followed by the designated officer.

H) The Information Technology (Procedure And Safeguards For Interception,

Monitoring And Decryption Of Information) Rules, 2009

These rules explain the procedure and safeguards subject to which such
interception or monitoring or decryption may be carried out.

I) The Information Technology (Procedure And Safeguard For Monitoring And

Collecting Traffic Data Or Information) Rules, 2009
It contains the procedure for aggregate monitoring of communications and the
procedural safeguards to be observed in them.

J) The Information Technology (Use Of Electronic Records And Digital

Signatures) Rules, 2004

These rules deal with the manner and format in which the electronic records
should be filed, created or issued. It also states the manner or method of
payment of any fees or charges for filing or creating any electronic record.

K) The Information Technology (Security Procedure) Rules, 2004

These rules prescribe the provisions relating to secure digital signatures and
secure electronic records.

L) The Information Technology (Other Standards) Rules, 2003

The rules deal with the standards to be observed by the Controller to ensure
that the secrecy and security of the digital signatures are assured.

M) The Information Technology (Certifying Authority) Regulations, 2001

The regulation details the technical standards and procedures to be used by

a Certifying Authority.

N) Information Technology (Certifying Authorities) Rules, 2000

This rule deals with licensing of Certifying authorities and the procedures that
need to be complied by them. It also prescribed the eligibility, appointment
and working of Certifying Authorities.

11. MOBILE CELL PHONES AND THE INFORMATION TECHNOLOGY

ACT, 2000 :
This subject is pertaining to police authority because of they did not have

knowledge How to take action against accused. As per definition of term

Computers, as provided by Sec. 2(i) of the I.T. Act, mobile phones are

encompassed in the definition of a Computer. Mobile phones are been used

for exchange of information. As per Sec. 2(r) of the I. T. Act, "electronic form",

with reference to information, means any information generated, sent,

received or stored in media, magnetic, optical, computer memory, micro film,

computer generated micro fiche or similar device. Thus any information

shared on the mobile phone though it may be talks, text or entry of

information they are encompassed in the purview of the I. T. Act.

1. Section 66A of The I. T. Act, provides for punishment for sending offensive

messages through communication service, etc… This provision of Law is

parallel provision to Sec. 294, 504, 506, 507 & 509 of Indian Penal Code,

1860, only difference is that in this provisions of law the criminal uses his cell

phone or computer to express the offensive feeling. The punishment

prescribed under this section is imprisonment for a term which may extend to

three years and with fine. This section is embedded with an explanation

which states that for the purpose of this section, terms electronic mail and

electronic mail message means a message or information created or

transmitted or received on a computer, computer system, computer resource

or communication device including attachments in text, image, audio, video

and any other electronic record, which may be transmitted with the message.

This explanation widens the scope of this section and assures that the

criminal cannot escape his liability.

Newly added provision in the I. T. Act in the form of Section 67(A)

provides for punishment for publishing or transmitting of material containing

sexually explicit act, etc., in electronic form. This is most important for

teenagers. The trends of sharing pornography material on cell phones are on

increase. The incident of indecent MMS is not unknown to anyone. This

provision of law books those who publishes or transmits or causes to be

published or transmitted in the electronic form any material which contains

sexually explicit act or conduct. This provision of law is analogous to

provisions of Sec. 292 and 292-A of the Indian Penal Code, 1860. It provides

for a punishment on first conviction for imprisonment of either description for

a term which may extend to five years and with fine which may extend to ten

lakh rupees. In the even to second or subsequent conviction for imprisonment

of either description for a term which may extend to seven years and also

with fine which may extend to ten lakh rupees.

This provision of Law elaborates Section 67 which provides for

punishment for publishing or transmitting obscene material in electronic form.

—Whoever publishes or transmits or causes to be published or transmitted in

the electronic form, any material which is lascivious or appeals to the prurient

interest or if its effect is such as to tend to deprave and corrupt persons who

are likely, having regard to all relevant circumstances, to read, see or hear

the matter contained or embodied in it, shall be punished on first conviction

with imprisonment of either description for a term which may extend to three

years and with fine which may extend to five lakh rupees and in the event of

second or subsequent conviction with imprisonment of either description for a

term which may extend to five years and also with fine which may extend to

ten lakh rupees. ]

12. JUDICIAL RESPONSE IN INDIA BEFORE THE INFORMATION
TECHNOLOGY ACT, 2000

12.1 Ranjit D. Udeshi v. State of Maharashtra

The Supreme Court of India declared ‘Lady Chatterley’s Lovers’ written

by D.H. Lawrence as obscene book and publication. The Court held that

there is difference between ‘obscenity’ and ‘pornography’. Precise definitions

are not possible. However, obscenity is any material, which tends to corrupt,

cause annoyance, something of horror, indecent, immoral or with sexual

tendency. ‘Pornography’ means any material in writing, picture or other form,

which is intended to arouse sexual desire. Both are against public morality

and decency.

12.2 Muhammed Ibrahim v. Public Prosecutor23,

A vendor who did not know English had in his possession 63 copies of

an erotic novel called the ‘Tropic of Cancer’. The court ruled that the object of

Section 292 of the IPC is to protect members of the public who may be

tempted to buy these and so expose themselves to their corrupting influence.

Thus, the Section must be strictly interpreted and menses and intention are

not the essence of the offence.

12.3 Sukanto Halder v. State of West Bengal,

23
Muhammed Ibrahim v. Public Prosecutor, (1963) 29 M.L.J. 289; See also State of
Karnataka v. Basheer, 1979 Cri.L.J. 1183
Magazine “Nara Nari” was treated as obscene publication. To give effect to

public morality about art and literature, the court u/s 292 of the IPC, 1860

convicted the petitioner and sentenced him to 2 months rigorous

imprisonment and fine of Rs. 200 in default to rigorous imprisonment for 2

weeks.

12.4 K.A. Abbas v. Union of India,

The Chief Justice of Supreme Court M. Hidayatullah held regarding film

censorship that our freedom of speech and expression is not absolute rather

limited by reasonable restrictions under Art. 19 (2) in the interest of general

public to maintain public decency and morality. Therefore, film censorship has

full jurisdiction in the field of cinematograph film to prevent and control

obscenity and pornography.

12.5 Raj Kapoor v. State of Maharashtra,

The issue was the most controversial film, “Satyam Shivam Sundaram”.

Justice Krishna Iyer held that ‘A’ certificate by a high-powered Board of

Censors with specialized composition and statutory mandate is essential and

acceptable. But we have to examine whether it breaches public morals and

decency to invoke the penal provisions. However, certificate of the Board has

evidentiary value but does not exclude criminal liability on publication of

obscene and pornographic materials.

12.6 Bobby Art International etc. v. Om Pal Singh Hoon,

The controversy about the film “Bandit Queen” which contains nude scene

brings the Supreme Court’s attention. The story dealt with the life of Phoolan

Devi from her childhood in village till the period of brutal torture to her. She

was kidnapped, gang raped by the dacoits and was sexually harassed. The

film shows how she was raped in her early age and thereafter 2 minutes nude

scene in front of villagers standing around her and she was paraded nude

from her head to toe. Thereafter, when she joined the dacoits group, she took

revenge by killing 20 Thakur’s of her village. In that film the rapist’s obscene

posterior was also shown in the rape scene. The film was based on Mala

Sen’s book ‘India’s Bandit Queen’ published in 1991 and was in the market till

1994 without objection. The film was presented for certification to the Censor

Board under the Cinematograph Act, 1952 and the Board allowed ‘A’

certificate with direction for some modifications. The High Court held the film

as indecent and in violation of Art. 19(2), disgusting and revolting as it

degraded women and those specific pornographic scenes must be deleted.

However, the Supreme Court held that the film was about the real events in

our society and about psychological and physical hurt to women from

childhood which they are suffering in society in reality.

12.7 Rajkapur v. Lakshman and Others,

The Supreme Court had held that the prosecution of the producer, actor

of the film, u/s 292 of the IPC was unsustainable as it had been duly
 certified as worthy of exhibition u/s 5-A of the Cinematograph Act, 1952.

13. Judicial Response In India After The Information Technology Act,

2000

13.1 Jayesh S. Thakkar v. State of Maharashtra,

The petitioners wrote a letter to the Chief Justice of the Bombay High

Court, about pornographic websites on the internet. The letter was treated as

suo motu writ petition. The Bombay High Court passed an order to appoint a

committee to suggest and recommend ways of preventive and controlling

measure and means to protect children from access to pornographic and

obscene material on the internet.

13.2 Air Force Bal Bharti School Case,

A student of the Air Force Bal Bharti School, Lodhi Road, New Delhi was

arrested by the Delhi Police in April 2001. The alleged accused was then a

class XII student who created a pornographic website as revenge of being

teased by classmates and teachers. He listed in that website the names of his

12 school mate 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 u/s 67 of the Information Technology

Act 2000, and sections 292, 293, 294 of the IPC and the Indecent

Representation of Women Act.

13.3 Tamil Nadu v. Suhas Katti,

This was the first case of the Cyber Crime Cell Chennai. The defendant was

charged for annoying, obscene and defamatory message in the yahoo

message group relating to a divorcee woman. The accused at first opened a

false account in the name of the victim and then sent her information through

e-mails. It annoyed the victim because she had to face harrowing calls. The

victim filed a complaint about the fact before police. The Chennai police

traced the accused at Mumbai and arrested him immediately after few days. It

was found out by the police that the accused was victim’s family friend,

known to her and wanted to marry her. But she did not marry the accused.

However, she married another one who ended it in divorce later on. After her

divorce the accused again became very crazy about her and started

contacting her but she refused for the same. Then the accused started

harassing her through internet. The charge sheet was filed against the

accused u/s 469 and 509 of the IPC, 1860 and section 67 of the IT Act, 2000.

On the basis of the expert witness the court held that the crime is conclusively

proved and the accused was convicted and sentenced to undergo rigorous

imprisonment for 2 years and to pay Rs. 500 fine u/s 469 of the IPC i.e.

forgery for the purpose of harming reputation; for the offence u/s 509 of the

IPC i.e. word, gesture or act intended to insult the modesty of a woman with 1

year simple imprisonment and Rs. 500 fine; and for the offence u/s 67 of the
IT Act, 2000 with 2 years rigorous imprisonment and Rs. 4000 fine. The court

held that all these sentences must run concurrently.

13.4 Bhubaneswar Case

The Xavier Institute of Management lodged a cyber crime complaint with the

police in December 2004 that students and staff of these institutions are

getting numerous obscene e-mails. Not only those, the students were afraid

of online threatening, hacking and spamming. Police appointed technical

experts to investigate and examine the whole technological matters. At first

these indecent e-mails were considered by them as spam mails. Gradually,

the students and staff were being over flooded with obscene mails and

continuous sexual harassment through internet.

13.5 Delhi Police School and Multimedia Message Service (MMS) Clip
Case,

A Delhi Public School boy allegedly filmed his girlfriend in an act of oral sex

with him on his cell phone camera which is to be called as MMS clip. This

video clip was then forwarded by him to his friends, and then his friends sent

it to others. Gradually, within a minute it was available to almost all users and

even it was available for small price to the roadside vendors. The clip was

copied to VCD (Video Compact Disk) for sale and distribution. One IIT

Kharagpur student named Ravi Raj put that MMS clip of 2.37 minutes for

auction on the Baazee.com which was India’s top auction website and owned

by e-Bay. The Delhi police arrested DPS student, Mr. Ravi Ray Singh and the
portal’s CEO, Mr. Avnish Bajaj. The counsel for the boy contended that the

charge against his client is totally false and it is very difficult to prove who was

that particular person because there was no visual of his face in the clip and

he prayed for bail u/s 12 of the Juvenile Justice Act, 2000 though he was

arrested u/s 293, 294, 201 of the IPC, 1860 and Section 67 of the IT Act,

2000. Thus, Delhi Public School scandal was not only the issue of child

pornography but also MMS clip in cyberspace. In MMS Clip of School Girl in

Orkut Case, a class XII student was arrested by the cyber crime cell of the

Noida police and the arrested student had confessed that he along with his

friends created the picture of a girl, circulated among friends and created a

fake profile of that school girl in Orkut website. He was arrested under the

IPC, the Indecent Representation of Women Act and Section 67 of the IT Act,

2000. The victim girl was in clinical depression since she saw her profile in

website which was posted by her school mates.

13.6 Dr. L. Prakash Case the accused,

an orthopedic surgeon along with his 3 staff was arrested for making cyber

pornographic images of his clients forcefully and putting up pornographic

images of those women patients on the internet. The Fast Track Court

sentenced accused with life imprisonment and other 3 co-accused with 7

years rigorous imprisonment. MMS Clip in Krishna Nagar, West Bengal Case

a former boyfriend aged about 22 of victim was alleged to have circulated

nude pictures of a first-year College girl from his mobile phone after he got
married with another girl. The girl and her sister had decided not to go to

University even for examinations and not to face neighbors. The entire family

was in ridiculous situation that they even could not step out of house due to

taunts about those pictures. Father of alleged accused was an affluent bell

metal trader. He was arrested on the as victim’s father’s complaint though

alleged accused was roaming freely. The Officer-in-Charge of police station

said that “during their affair, accused had taken video clips on his mobile

phone which he circulated among youths in the locality. He also said that the

boy’s father knew and encouraged the same that was the cause of his arrest.

13.7 Anthony v. State of Kerala, '

It was held that to be an obscene object, it need not be visible to the naked

eye. Thus, the fact that the electronic impulses recorded on videotape are

thrown on the screen does not make it less visible than any other visual

object. Thus, the courts are found to be recognizant of changes in technology

and the need to reinterpret the words.

14. Factors to be taken into Consideration for Determining Liability in

Online Defamation

ISPs and website hosts or owners must therefore take care to control, as far

as possible, the information published on their websites. Factors which could

possibly be taken into account in determining whether an ISP or a website

host/ owner have exercised reasonable care are as follows:

a. The nature and purpose of the site containing the defamatory material and

the relationship of the defendant thereto, that is, whether the defendant is

bulletin board operator or an ISP or simply a company controlling its own

website;

b. Whether the monitoring system which was put into place is proportionate to

the size of the site;

c. The amount and characteristics of information flowing through the site;

d. The characteristics of the site users;

e. Whether or not the site attracted repeat offenders and, if so, why the site

was then not removed;

f. Whether defamatory materials is removed immediately upon request by the

person being defamed.

g. Measures which would assist in reducing the exposure of an ISP or

website host/owner to liability for defamation include:

h. The posting of clear notices warning potential users of the site not to put

libelous material onto the site;

i. Periodic monitoring of sites and bulletin boards with a view to the deletion of

any problematic material;

j. The introduction of systems to facilitate the speedy publication of apologies

in respect of any statements published on the site which are found to contain

libelous allegations;

k. Making access to the site conditional upon the provision by any user of its

name, address and other specified identifying data so that the author of any

defamatory statement may later be traced and disclosed to a potential

defendant if a claim for defamation is threatened.

15. IMPORTANT JUDGMENTS ON IT ACT.

15.1 State v. Mohd. Afzal24

The Division Bench of Delhi High Court in The last few years of the 20th

Century saw rapid strides in the field of information and technology. The

expanding horizon of science and technology threw new challenges for the

ones who had to deal with proof of facts in disputes where advanced

techniques in technology was used and brought in aid. Storage, processing

and transmission of data on magnetic and silicon medium became cost

effective and easy to handle. Conventional means of records and data

processing became out dated. Law had to respond and gallop wit the

technical advancement. He who sleeps when the sun rises, misses the

beauty of the dawn. Law did not sleep when the dawn of Information and

Technology broke on the horizon. World over, statutes were enacted. Rules

24
(2003) 3 JCC 1669; (2003) SCCONLINE DEL 935
relating to admissibility of electronic evidence and its proof were

incorporated.”

In both civil and criminal matters, the courts have to consider a lot of

electronic records as evidences and this process not only requires viewing

the older rules of admissibility of documentary evidence from a new

perspective but also applying new rules to the present day challenges. In

criminal trials, where the the right to life and and personal liberty of the

accused is at stake, proper appraisal of evidence (oral and documentary) is

the most important part of judicial function of a trial judge or magistrate. The

correctness of findings of facts and the quality of judgment depends upon

whether or not the trial judge or magistrate is familiar what the law applicable

to different kinds of evidences of various sorts of witnesses. Similarly, in civil

transactions which have been executed in the cyber space, appreciation of

electronic evidence becomes vital. Apart from the bare provisions contained

in the Indian Evidence Act, and various other laws to deal with the evidence

adduced by the parties during trial or proceeding, various judicial

pronouncements, particularly from the Supreme Court, have over the years,

been guiding the trail and appellate courts in properly analyzing and

evaluating the evidence led by the parties.

There are multiple issues before Courts in evaluating electronic or digital

evidence. We will deal with these issues in detail in latter chapters. In short

these issues are as following:

• Recognizing potential electronic evidence.

• Validity of electronic or digital evidence.

• Authenticity of electronic or digital evidence.

• Admissibility of electronic or digital evidence.

• Relevancy of electronic or digital evidence.

• The Best Evidence rule

• Hearsay evidence what is the nature and manner of admission of electronic

records is one of the principal issue arising due to growth of cyber offences.

However, the sanctity of the principle that genuineness, veracity, or reliability

of the evidence is to be seen by the court only after the stage of relevancy

and admissibility remains intact.

15.2 ADMISSIBILITY OF ELECTRONIC-EVIDENCE

(Authenticity of electronic evidence is the prerequisite of admissibility)

Authenticity is often the central battleground for determining admissibility of

electronic evidence, as electronic records may be readily altered and made to

appear to be something they are not. It is not at all difficult to create a

document that looks like an e-mail sent by one of the parties to the case25.

New Sections 65A and 65B are introduced to the Evidence Act under

the Second Schedule to the IT Act. Section 5 of the Evidence Act provides

that evidence can be given regarding only facts that are at issue or of

relevance. Section 136 empowers a judge to decide on the admissibility of

the evidence. New provision Section 65A provides that the contents of

25
(Strauss v. Microsoft Corp., No. 91 Civ. 5928, 1995 WL 326492)
electronic records may be proved in accordance with the provisions of

Section 65B. Section 65B provides that notwithstanding anything contained in

the Evidence Act, any information contained in an electronic record (ie, the

contents of a document or communication printed on paper that has been

stored, recorded and copied in optical or magnetic media produced by a

computer (‘computer output’)), is deemed to be a document and is admissible

in evidence without further proof of the original’s production, provided that the

conditions set out in Section 65B(2) to (5) are satisfied.

15.3.CONDITIONS FOR THE ADMISSIBILITY OF ‘ELECTRONIC

EVIDENCE

Before a computer output is admissible in evidence, the following conditions

as set out in Section 65(B)(2) must be fulfilled:“

(2) The conditions referred to in subsection (1) in respect of a computer

output shall be the following, namely:(a) the computer out Put 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.

(3) Where over any period the function of storing or processing information for

the purposes of any activities regularly carried on over that period as

mentioned in clause (a) of subsection (2) was regularly performed by

computers, whether:

(a) by a combination of computers operating over that period;

(b) by different computers operating in succession over that period;

(c) by different combinations of computers operating in succession over that

period; or

(d) in any other manner involving the successive operation over that period, in

whatever order, of one or more computers and one or more combinations of

computers, all the computers used for that purpose during that period shall be

treated for the purposes of this section as constituting a single computer and

references in this section to a computer shall be construed accordingly.”

Section 65B(4) provides that in order to satisfy the conditions set out above, a

certificate of authenticity signed by a person occupying a responsible official

position is required. Such certificate will be evidence of any matter stated in

the certificate. The certificate must:

• identify the electronic record containing the statement;

• describe the manner in which it was produced; and

• give such particulars of any device involved in the production of the

electronic record as may be appropriate for the purpose of showing that the

electronic record was produced by a computer.

The certificate must also deal with any of the matters to which the conditions

for admissibility relate.

15.4. Anvar P.V v. P.K.Basheer & Ors26

The Hon’ble Supreme Court in Anvar P.V v. P.K.Basheer & Ors stated the

rules relating to application of law of evidence for admitting electronic

evidence. The Hon’ble Court said, “The evidence relating to electronic record,

as noted herein before, being a special provision, the general law on

secondary evidence under Section 63 read with Section 65 of the Evidence

Act shall yield to the same. Generally specially non derogant, special law will

always prevail over the general law. It appears, the court omitted to take note

of Sections 59 and 65A dealing with the admissibility of electronic record.

Sections 63 and 65 have no application in the case of secondary evidence

by way of electronic record; the same is wholly governed by Sections 65A

and 65B. To that extent, the statement of law on admissibility of secondary

evidence pertaining to electronic record, as stated by this court in Navjot

Sandhu case27 , does not lay down the correct legal position. It requires to

be overruled and we do so. An electronic record by way of secondary

26
Civil Appeal No. 4226 of 2012, decided on September 18, 2014
27
AIR 2005 SC 3820
evidence shall not be admitted in evidence unless the requirements under

Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same

shall be accompanied by the certificate in terms of Section 65B obtained at

the time of taking the document, without which, the secondary evidence

pertaining to that electronic record, is inadmissible.”

15.5 Ajmal Kasab case28,

As we saw in the Ajmal Kasab case, terrorists these days plan all their

activities either face-to-face, or through software. Being able to produce

transcripts of internet transactions helped the prosecution case a great deal in

proving the guilt of the accused. Similarly, in the case of

15.6 state (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru29

the links between the slain terrorists and the masterminds of the attack were

established only through phone call transcripts obtained from the mobile

service providers.

16. JUDGMENT ON APPRECIATING AND ANALYSING ELECTRONIC

EVIDENCE

16.1 Sivakumar v. State by The Inspector of Police30,

In case of Sivakumar v. State by The Inspector of Police, the Hon’ble High

Court of Madras laid down that without confronting with the witnesses of

electronic evidence, the evidence cannot be appreciated and analyzed. The

28
(2012) 9 SCC 1
29
AIR 2005 SC 3820
30
(Crl.A.No.131 of 2014), Decided On : 31-07-2015, [2015 0 Supreme(Mad) 2585]
relevant extracts of the judgment is as follow:“..In its impugned judgment the

trial Court had referred to the electronic evidence based vide the reports of

Forensic Scientists P.Ws.13 and 15. It is alleged that the accused was bent

upon sexually abusing his daughter/P.W.1. There was secret arrangement as

between P.Ws.1 and 2 and P.W.2’s brother P.W.14 Charles to record the Cell

phone conversation between the accused and P.W.1 which would expose the

sexual advances made by the accused towards P.W.1. PARA : 27 To

establish the said aspect, P.Ws.13, 15, M.Os.1 to 4 C.Ds., Cell phone and

analysis reports Ex.P11 to P13 have been marked. The trial Court in its

judgment referred to them electronic evidence and also reproduced the

transcription of the Cell phone conversation stated to have been transpired

between P.W.1 and the accused and used them as incriminating evidence to

convict the accused. PARA : 28 In this case, P.W.1 the alleged victim girl was

examined before the trial Court on 19.3.2013. She turned hostile. She had

disowned her complaint. P.W.14 Charles was examined on 19.9.2013. He

also turned hostile. Only thereafter on 30.9.2013, P.W.15 Forensic Scientist

who compared and analysed the Cell phone conversation stated to have

taken place between P.W.1 and the accused containing incriminating

information has been examined. Thus, there was no occasion to confront

P.Ws.1 and P.W.14 with the said electronic evidence. That part, accused

have to be furnished with the said Forensic report, cassettes and the

transcription of the conversation stated to have taken place between the

accused and P.W.1 through Cell phones. PARA : 29 It is pertinent to note that
neither P.W.1 nor P.W.14 were confronted with the said electronic evidence.

Only after confronting them viz., P.W.1 and 14 with the said electronic

evidence especially when they have turned hostile such evidence can be

appreciated and analyzed. This is an import aspect to be observed. However,

it was overlooked by the trial Court. Thus, there is no fair trial. In such

circumstances, the conclusion arrived at by the trial Court becomes faulty and

vitiated.”

16.1 KUNDAN SINGH vs. THE STATE31

In case of Kundan Singh Vs. The State the appellate challenged his

conviction under Section 201 and 404 IPC. On examination of the call detail

records (CDRs, for short) and after examining the video footage of the ATM

of the ICICI Bank at Saket from where money was withdrawn using the ATM

card of the deceased, the present appellant was arrested. The evidence and

materials collected during the police investigation including the recoveries

made at the behest of the appellant form the core evidence of the prosecution

case. On examination of the call detail records (CDRs, for short) and after

examining the video footage of the ATM of the ICICI Bank at Saket from

where money was withdrawn using the ATM card of the deceased, the

present appellant was arrested. The evidence and materials collected during

the police investigation including the recoveries made at the behest of the

appellant form the core evidence of the prosecution case.

31
CRL.A. 711/2014, Decided on : 24.11.2015, [2015 0 Supreme(Del) 3285]
17.ADMISSIBILITY OF ELECTRONICALLY RECORDED
CONVERSATION

R.M Malkani vs. State of Maharastra32

Held : this court made it clear that electronically recorded conversation is

admissible in evidence, if the conversation is relevant to the matter in issue
and the voice is identified and the accuracy of the recorded conversation is
proved by eliminating the possibility of erasure, addition or manipulation. This
Court further held that a contemporaneous electronic recording of a relevant
conversation is a relevant fact comparable to a photograph of a relevant
incident and is admissible as evidence under Section 8 of the Act. There is
therefore no doubt that such electronic record can be received as evidence.

18.ADMISSIBILITY OF INTERCEPTED TELEPHONE CALLS

State (NCT of Delhi) v Navjot Sandhu33

It was Held that an appeal against conviction following the attack on

Parliament on December 13 2001, in which five heavily armed persons

entered the Parliament House Complex and killed nine people, including eight

security personnel and one gardener, and injured 16 people, including 13

security men. This case dealt with the proof and admissibility of mobile

telephone call records. While considering the appeal against the accused for

attacking Parliament, a submission was made on behalf of the accused that

no reliance could be placed on the mobile telephone call records,

32
AIR 1973 SC 157
33
AIR 2005 SC 3820
 because the prosecution had failed to produce the relevant certificate under
Section 65B (4) of the Evidence Act. The Supreme Court concluded that a
cross-examination of the competent witness acquainted with the functioning
of the computer during the relevant time and the manner in which the
printouts of the call records were taken was sufficient to prove the call
records.

19. Examination of a witness by video conference and its admissibility

State of Maharashtra v Dr Praful B Desai34

Held : Involved the question of whether a witness can be examined by means

of a video conference. The Supreme Court observed that video conferencing
is an advancement of science and technology which permits seeing, hearing
and talking with someone who is not physically present with the same facility
and ease as if they were physically present. The legal requirement for the
presence of the witness does not mean actual physical presence. The court
allowed the examination of a witness through video conferencing and
concluded that there is no reason why the examination of a witness by video
conferencing should not be an essential part of electronic evidence.

This Supreme Court decision has been followed in other high court rulings
(eg, Amitabh Bagchi v Ena Baqchi35 More recently, the High Court of Andhra
Pradesh in Bodala Murali Krishna v Bodala Prathima36 held that necessary
precautions must be taken to identify the witness and ensure the accuracy of
the equipment being used. In addition, any wishing to avail itself of the facility
of video conferencing must meet the entire expense.

20. Twentieth Century Fox Film Corporation vs. NRI Film Production
Associates (P) Ltd37. Certain condition for video-recording of evidence
has been laid down:
a) Before a witness is examined in terms of the Audio-Video Link, witness is

to file an affidavit or an undertaking duly verified before a notary or a judge

that the person who is shown as the witness is the same person as who is

34
AIR 2003 SC 2053
35
AIR 2005 Cal 11
36
(2007) 2 ALD 72
37
AIR 2003 KANT 148
going to depose on the screen. A copy is to be made available to the other

side.

b) The person who examines the witness on the screen is also supposed to

file an affidavit/ undertaking before examining the witness with a copy to the

other side with regard to identification.

c) The witness has to be examined during working hours of Indian Courts.

Oath is to be administered through the media. d) The witness should not

plead any inconvenience on account of time difference between India and

USA.

e) Before examination of the witness, a set of plaint, written statement and

other documents must be sent to the witness so that the witness has

acquaintance with the documents and an acknowledgement is to be filed

before the Court in this regard.

f) The learned judge is to record such remarks as is material regarding the

demur of the witness while on the screen.

g) The learned judge must note the objections raised during recording of

witness and to decide the same at the time of arguments.

h) After recording the evidence, the same is to be sent to the witness and his

signature is to be obtained in the presence of a Notary Public and thereafter it

forms part of the record of the suit proceedings.

i) The visual is to be recorded and the record would be at both ends. The

witness also is to be alone at the time of visual conference and notary is to

certificate to this effect.

j) The learned judge may also impose such other conditions as are necessary

in a given set of facts.

k) The expenses and the arrangements are to be borne by the applicant who

wants this facility.

21. ADMISSIBILITY OF EVIDENCE RECORDED ON CD

In Jagjit Singh v State of Haryana38 , the speaker of the Legislative Assembly

of the State of Haryana disqualified a member for defection. When hearing
the matter, the Supreme Court considered the appreciation of digital evidence
in the form of interview transcripts from the Zee News television channel, the
Aaj Tak television channel and the Haryana News of Punjab Today television
channel. The Supreme Court of India indicated the extent of the relevance of
the digital materials in Paragraph 25 of his ruling:
“The original CDs received from Zee Telefilms, the true translation into

English of the transcript of the interview conducted by the said channel and

the original letter issued by Zee Telefilms and handed over to Ashwani Kumar

on his request was filed on June 23 2004. The original CDs received from

Haryana News channel along with the English translation as above and the

original proceedings of the Congress legislative party in respect of

proceedings dated June 16 2004 at 11.30am in the Committee room of

Haryana Vidhan Sabha containing the signatures of three out of four

independent members were also filed.” In Paragraphs 26 and 27 the court

went on to indicate that an opportunity had been given to the parties to review

the materials, which was declined. The court determined that the electronic

evidence placed on record was admissible and upheld the reliance placed by

38
(2006) 11 SCC 590
the speaker on the recorded interview when reaching the conclusion that the

voices recorded on the CD were those of the persons taking action. The

Supreme Court found no infirmity in the speaker’s reliance on the digital

evidence and the conclusions reached.

22. ADMISSIBILITY OF INFORMATION RECORDED IN THE HARD DISC

In Dharambir vs. Central Bureau of Investigation39 The court arrived at the

conclusion that when Section 65-B talks of an electronic record produced by

a computer referred to as the computer output, it would also include a hard

disc in which information was stored or was earlier stored or continues to be

stored. It distinguished as there being two levels of an electronic record. One

is the hard disc which once used itself becomes an electronic record in

relation to the information regarding the changes the hard disc has been

subject to and which information is retrievable from the hard disc by using a

software program. The other level of electronic record is the active accessible

information recorded in the hard disc in the form of a text file, or sound file or

a video file etc. Such information that is accessible can be converted or

copied as such to another magnetic or electronic device like a CD, pen drive

etc. Even a blank hard disc which contains no information but was once used

for recording information can also be copied by producing a cloned had or a

mirror image.

39
2008 SCC OnLine Del 336 : (2008) 102 DRJ 299 : (2008) 148 DLT 289 : ILR (2008) 2 Del 842,
23. CLOSED CIRCUIT TELEVISION (CCTV.)

State of M.P. v. Dharkole40

As a prelude, it will be appropriate to quote the following passage from the

book “Law of Evidence” by the celebrated author Vepa P. Sarathi (6th Edition,

page 208). We quote, “The law, it is said, walks a respectable distance

behind science, but courts try to keep abreast. The criminal is quick to use

science to commit ingenious crimes, and so the police and the courts should

be no less innovative; and courts should always encourage the police to do

so and admit the evidence collected by any innovative method. The law

courts can play an important role by-

(1) taking expert evidence to see whether the best scientific methods have

been used,

(2) by the Judge scrutinizing the evidence carefully, and

(3) encouraging the scientists, when the evidence is reliable, by giving judicial

recognition to his methods.”

Criminal Justice Delivery System is built upon the episodic memory of

witnesses and their capacity to translate the data stored in their memory into

human language, for the purpose of communication and understanding by the

Judge for rendering justice. Episodic memory is broadly described by Prof.

Sen Cheng from RUHR University, Bosch, Germany as “fairly accurate

representation of personally experienced episodes.” To put it in short, the

ophthalmic and auditory senses in human beings capture events and store

40
2004 AIR SCW 6241
them as memory in the brain. Thereafter the events can be narrated orally via

a language. That is why, perhaps Jeremy Bentham called Witnesses as “eyes

and ears of Justice”.

The capability of the human mind to give its own interpretation to what the

eyes saw and what the ears heard while narrating, cannot be discounted.

Universally, Courts have recognized the fact that there are bound to be

exaggerations and embellishments in oral accounts. If five people are asked

to see an event and give an account of it individually, there will not be

unanimity in their versions. This has been scientifically tested and the

following passage from Laxman v. State of Maharashtra41 may be worth

extracting, “Before we discuss the evidence further, we may observe that

Professor Munsterberg, in a book called On the Witness Stand (p. 51) cited

by Judge Jerome Frank in his Law and the Modern Mind (1949 ed. p. 106),

gives instances of experiments conducted by enacting sudden unexpected

pre-planned episodes before persons who were then asked to write down,

soon afterwards, what they had seen and heard. The astounding result was:

“Words were put into the mouths of men who had been silent spectators

during the whole short episode; actions were attributed to the chief

participants of which not the slightest trace existed; and essential parts of the

tragic-comedy were completely eliminated from the memory of a number of

witnesses.”

41
(1974) 3 SCC 704
24. K. Ramajayam @ Appu v. The Inspector of Police, Maduravoyal
Police Station, Chennai.42

Held : It is axiomatic that CCTV footage does not suffer such ills and human

fragilities, and they are indubitably superior to human testimony of facts.

25. Kishan Tripathi @ Kishan Painter v. The State43,

The Delhi High Court has discussed the law relating to admissibility of CCTV

footage and appreciation of the same. The CCTV footage is captured by the

cameras and can be stored in the computer where files are created with serial

numbers, date, time and identification marks. These identification

marks/details are self generated and recorded, as a result of pre-existing

software commands. The capture of visual images on the hard disc is

automatic in the sense that the video images get stored and recorded suo-

moto when the CCTV camera is on and is properly connected with the hard

disc installed in the computer. There is no need that someone must watch the

CCTV footage when it is being stored and recorded. The recording is a result

of commands or instructions, which had already been given and

programmed. The original hard disc, therefore, could be the primary and the

direct evidence. Such primary or direct evidence would enjoy a unique

position for anyone who watches the said evidence would be directly viewing

the primary evidence. Section 60 of the Evidence Act states that oral

evidence must be direct, i.e., with reference to the fact which can be seen, it

42
2016 SCC OnLine Mad 451
43
2016 SCC OnLine Del 1136.
must be the evidence of the witness, who had seen it, with reference to the

fact, which could be heard, it must be evidence of the witness, who had heard

it and if it relates to the fact, which could be perceived by any other sense or

any other manner, then it must be the evidence of the witness, who says who

had perceived it by that sense or by that manner. Read in this light, when we

see the CCTV footage, we are in the same position as that of a witness, who

had seen the occurrence, though crime had not occurred at that time when

the recording was played, but earlier. When a judge watches the CCTV

footage with his own eyes as a judge gives you an insight into the real world

in the past. When the court itself watch the CCTV footage, it travels back in

time to the time when the occurrence took place and thereby has seen the

occurrence in the same position as that of a witness, who would have seen

the occurrence, if he was present. There cannot be a more direct evidence.

This video recording which captures the occurrence, would be per se and

mostly discerningly reliable and compellingly conclusive evidence, unless its

authenticity and genuineness is in question. Per force, we must rule out any

possibility of manipulation, fabrication or tampering. The hard-disk CCTV

footage must pass the integrity test. It is a twofold test, system integrity and

record integrity. It is with this over cautious and pensive approach, that we

have to precede our consideration to CCTV footage. The Court should accept

the genuineness and authenticity of

the CCTV footage played before it, for good and sound reasons. System

integrity test should be satisfied by ocular testimonies and other independent

witnesses. System while recording CCTV footage works contemporaneously

and stores data.

26. TAPE RECORDED

The conditions for admissibility of a tape-recorded statement may be stated

as laid down by the court in the Ram Singh v. Col. Ram Singh44,
“(1) The voice of the speaker must be duly identified by the maker of the

record or by others who recognize his voice. In other words, it manifestly

follows as a logical corollary that the first condition for the admissibility of

such a statement is to identify the voice of the speaker. Where the voice has

been denied by the maker it will require very strict proof to determine whether

or not it was really the voice of the speaker.

(2) The accuracy of the tape-recorded statement has to be proved by the

maker of the record by satisfactory evidence — direct or circumstantial.

(3) Every possibility of tampering with or erasure of a part of a tape-recorded

statement must be ruled out otherwise it may render the said statement out of

context and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act.

(5) The recorded cassette must be carefully sealed and kept in safe or official

custody.

(6) The voice of the speaker should be clearly audible and not lost or

distorted by other sounds or disturbances.”

44
1985 Supp SCC 611 at page 657.
In American Jurisprudence 2nd (Vol. 29) the learned Author on a conspectus

of the authorities referred to in the foot-note in regard to the admissibility of

tape-recorded statements at p. 494 observes thus:

“The cases are in general agreement as to what constitutes a proper

foundation for the admission of a sound recording, and indicate a reasonably

strict adherence to the rules prescribed for testing the admissibility of

recordings, which have been outlined as follows:

(1) a showing that the recording device was capable of taking testimony;

(2) a showing that the operator of the device was competent;

(3) establishment of the authenticity and correctness of the recording;

(4) a showing that changes, additions, or deletions have not been made;

(5) a showing of the manner of the preservation of the recording;

(6) identification of the speakers; and

(7) a showing that the testimony elicited was voluntarily made without any

kind of inducement.

However, the recording may be rejected if it is so inaudible and indistinct that

the jury must speculate as to what was said.”

27. R.M. Malkani v. State of Maharashtra45,

this Court observed at page 477 “Tape recorded conversation is admissible

provided first that the conversation is relevant to the matters in issue;

secondly, there is identification of the voice; and thirdly, the accuracy of the

45
(1973) 1 SCC 471; 1973 SCC (Cri) 399: (1973) 2 SCR 417.
tape-recorded conversation is proved by eliminating the possibility of erasing

the tape record. A contemporaneous tape record of a relevant conversation is

a relevant fact and is admissible under Section 8 of the Evidence Act. It is res

gestae. It is also comparable to a photograph of a relevant incident. The tape-

recorded conversation is therefore a relevant fact and is admissible under

Section 7 of the Evidence Act.”

28. Ziyauddin Barhanuddin Bukhari v. Brijmohan Ramdass Mehra46,

it was held by this Court that tape-records of speeches were “documents”, as

defined by Section 3 of the Evidence Act, which stood on no different footing
than photographs, and that they were admissible in evidence on satisfying the
following conditions:
“(a) The voice of the person alleged to be speaking must be duly identified by

the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of

the record and satisfactory evidence, direct or circumstantial, had to be there

so as to rule out possibilities of tampering with the record.

(c) The subject-matter recorded had to be shown to be relevant according to

rules of relevancy found in the Evidence Act.” Shamsher Singh Verma v.

State of Haryana,47. In view of the definition of ‘document’ in Evidence Act,

and the law settled down is that the compact disc is also a document. It is not

necessary for the court to obtain admission or denial on a document under

sub-section (1) to Section 294 CrPC personally from the accused or

complainant or the witness. The endorsement of admission or denial made by

46
(1976) 2 SCC 17 : 1975 (Supp) SCR 281.
47
2015 SCC OnLine SC 1242
the counsel for defence, on the document filed by the prosecution or on the

application/report with which same is filed, is sufficient compliance of Section

294 CrPC. Similarly on a document filed by the defence, endorsement of

admission or denial by the public prosecutor is sufficient and defence will

have to prove the document if not admitted by the prosecution. In case it is

admitted, it need not be formally proved, and can be read in evidence. In a

complaint case such an endorsement can be made by the counsel for the

complainant in respect of document filed by the defence.

29. R.K Anand v. Registrar, Delhi High Court48,

In the interesting case of R.K Anand v. Registrar, Delhi High Court49, the

original electronic materials upon which the sting operation by a journalist

was based was held not needed to have been taken in the Court custody. In

that case in a sting operation a particular conversation between two persons

was recorded. Based upon the electronic tape recorded conversation played

before the Court, contempt notices came to be issued for subverting and

interfering with the course of justice in a criminal trial. In that case the copies

of the original sting recordings were called for and seen by the Court. The

original microchips and the magnetic tapes were allowed to be retained in the

custody of the journalist of the TV channel. Upon the case that was an

incorrect and fatal procedure, the Supreme Court considered the rationale

behind it thus: “If the recordings on the microchips were fake from the start or

48
2009 (10) SCALE 164.
49
2009 (10) SCALE 164.
if the microchips were morphed before notice was issued to the TV channel,

those would come to the Court in that condition and in that case the question

whether the microchips were genuine or fake/morphed would be another

issue. But once the High Court obtained their copies there was no possibility

of any tampering with the microchips from that stage. Moreover, the High

Court might have felt that the TV channel with its well equipped

studio/laboratory would be a much better place for the handling and

conservation of such electronic articles than the High Court Registry.”

Consequently, holding that all tape recorded conversation must be sealed

without considering its intrinsic source or its custody with a party would be an

exercise devoid of application of mind.

30. Mohd. Arif v. State (NCT of Delhi)50

In the case of Mohd. Arif v. State (NCT of Delhi)51, the Apex Court discussed

the functioning of SIM card and mobile handset in order to explain how details

of calls made/received on mobile number and approximate location of a

mobile user can be ascertained on the basis of data available in computer of

telecom service provider. It can be used in determination of

movement/location of a person on the basis of mobile phone possessed by

him based on the call detail records (CDR). An active mobile phone has two

components i.e. the mobile instrument and the SIM card. Every mobile

instrument has a unique identification number, namely, instrument

50
(2011) 13 SCC 621: (2012) 2 SCC (Cri) 766.
51
(2011) 13 SCC 621: (2012) 2 SCC (Cri) 766.
manufactured equipment identity (for short “IMEI number”). Such SIM card

could be provided by the service providers either with cash card or post-paid

card to the subscriber and once this SIM card is activated the number is

generated which is commonly known as mobile number. The mobile service

is operated through a main server computer called mobile switching centre

which handles and records each and every movement of an active mobile

phone like day and time of the call, duration of the call, calling and the called

number, location of the subscriber during active call and the unique IMEI

number of the instrument used by the subscriber during an active call. This

mobile switching centre manages all this through various sub-systems or sub-

stations and finally with the help of telephone towers. These towers are

actually base trans-receiver stations also known as BTS. Such BTS covers a

set of cells each of them identified by a unique cell ID. A mobile continuously

selects a cell and exchanges data and signaling traffic with the corresponding

BTC. Therefore, through a cell ID the location of the active mobile instrument

can be approximated.

31. Prashant Bharti v. State (NCT of Delhi)52,

The complainant/prosecutrix in her first complaint dated 16-2-2007 had

alleged that the appellant-accused had called her on her phone at 8.45 p.m.

and asked her to meet him at Lodhi Colony, New Delhi. When she reached

there, he drove her around in his car. He also offered her a cold drink (Pepsi)

52
(2013) 9 SCC 293; (2013) 3 SCC (Cri) 920.
containing a poisonous/intoxicating substance. Having consumed the cold

drink, she is stated to have felt inebriated, whereupon, he took advantage of

her and started misbehaving with her, and also touched her breasts. Insofar

as the instant aspect of the matter is concerned, the presence of the

complainant/prosecutrix, as well as the appellant-accused, at the alleged

place of occurrence (Lodhi Colony, New Delhi), on the night of 15-2-2007

after 8.45 p.m., has been established to be false on the basis of mobile phone

call details of the parties concerned. The proof of the aforesaid factual matter

must be considered to be conclusive for all intents and purposes, specially, in

view of the observations made by the Supreme Court in Gajraj v. State (NCT

of Delhi) [(2011) 10 SCC 675; (2012) 1 SCC (Cri) 73] wherein it was held as

under: (SCC p. 681, para 19) ..We are satisfied, that the process, by which

the appellant-accused came to be identified during the course of

investigation, was legitimate and unassailable.

32. The IMEI number of the handset, from which the appellant-accused
was making calls by using a mobile phone (SIM) registered in his name,
being evidence of a conclusive nature,

cannot be overlooked on the basis of such like minor discrepancies. In fact

even a serious discrepancy in oral evidence would have had to yield to the

aforesaid [authentic digital evidence which is a by-product of machine

operated electronic record having no manual interference]…

33. Societe Des Products Nestle S.A. v. Essar Industries, 2006 SCC
OnLine Del 1675: (2006) 33 PTC 469.

According to Section 63(2) of the Evidence Act, secondary evidence inter alia

means and includes, “Copies made from the originals by mechanical

processes which in themselves ensure the accuracy of the copy, and copies

compared with such copies”. Section 65 of the Evidence Act enables

secondary evidence of the contents of a document to be adduced if the

original is of such a nature. Section 65(d) specially provides that secondary

evidence of the existence, condition’, or contents of a document may

adduced if “the original is of such a nature as not to be easily movable”.

Rapid rise in the field of information & technology in the last decade of 20th

Century and the increasing reliance placed upon electronic record by the

world at large necessitated the laying down of a law relating to admissibility

and proof of electronic record. The Legislature responded to the crying need

of the day by inserting into the Evidence Act Sections 65A & 65B, relating to

admissibility of computer generated evidence in the only practical way it could

so as to eliminate the challenge to electronic evidence. By virtue of the

provisions of Section 65A, the contents of electronic records may be proved

in evidence by the parties in accordance with the provisions of Section 65B.

Sub-clause (1) of Section 65B stipulates that any information contained in

electronic record shall be deemed to be a document and shall be admissible

in evidence without further proof or production of the originals, if the

conditions mentioned in the said Section are satisfied in relation to the

information and computer in question. Sub-clause (2) of Section 65B lays

down the conditions required to be satisfies for admissibility of the electronic

record and reads as follows:—

“65B(2).

The conditions referred to in subsection (1) in respect of a computer output

shall be the following, namely:—

(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 then 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 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.

Sub section 4, which is pertinent to the matter in issue, reads as under:—

“(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”.

34. Anvar P.V. Versus P.K. Basheer and others (CIVIL APPEAL NO. 4226 OF
2012 Decided On : 18-09-2014) 2014 10 SCC 473,

This case relates to election petition filed under the Representation of People

Act, 1951 alleging the corrupt practices by the elected candidate. The Hon’ble

High Court dismissed election petition holding that corrupt practices pleaded

in petition are not proved.

35. What is nature and manner of admission of electronic records was
one of the principal issues arising for consideration in this appeal.

The appellant founded its case and attempted to prove the corrupt practices

for declaring election to be void under section (100)(b) of the Representation

of People Act, 1951. Speeches, songs and announcements were recorded

using other instruments and by feeding them intoa computer, CDs were made

therefrom which were produced in court. Admission of those CDs as

electronic evidence has extensively been dealt in this case by the Hon’ble

Court. The relevant paragraph of the judgment pronounced by the Hon’ble

Supreme Court is produced below:

...5. The evidence consisted of three parts –

(i) electronic records,

(ii) documentary evidence other than electronic records, and

(iii) oral evidence. As the major thrust in the arguments was on electronic

records, we shall first deal with the same.

6. Electronic record produced for the inspection of the court is documentary

evidence under Section 3 of The Indian Evidence Act, 1872 (hereinafter

referred to as ‘Evidence Act’).

The Evidence Act underwent a major amendment by Act 21 of 2000 [The

Information Technology Act, 2000 (hereinafter referred to as ‘IT Act’)].

Corresponding amendments were also introduced in The Indian Penal Code

(45 of 1860), The Bankers Books Evidence Act, 1891, etc.

7. Section 22A of the Evidence Act reads as follows:

“22A. When oral admission as to contents of electronic records are relevant.-

Oral admissions as to the contents of electronic records are not relevant,

unless the genuineness of the electronic record produced is in question.”

8. Section 45A of the Evidence Act reads as follows:

“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.

Explanation.--For the purposes of this section, an Examiner of Electronic

Evidence shall be an expert.”

9. Section 59 under Part II of the Evidence Act dealing with proof, reads as

follows:

“59. Proof of facts by oral evidence.—All facts, except the contents of

documents or electronic records, may be proved by oral evidence.”

10. Section 65A reads as follows:

“65A. Special provisions as to evidence relating to electronic record:

The contents of electronic records may be proved in accordance with

the provisions of section 65B.”

11. Section 65B reads as follows:

“65B. Admissibility of electronic records:

 (1) Notwithstanding anything contained in this Act, 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 (hereinafter referred to as the computer output) shall be

deemed to be also a document, if the conditions mentioned in this

section are satisfied in relation to the information and computer in

question and shall be admissible in any proceedings, without further

proof or production of the original, as evidence of any contents of the

original or of any fact stated therein of which direct evidence would be

admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer

output shall be the following, namely: -

(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.

(3) Where over any period, the function of storing or processing information

for the purposes of any activities regularly carried on over that period as

mentioned in clause (a) of sub-section (2) was regularly performed by

computers, whether – (a) by a combination of computers operating over that

period; or (b) by different computers operating in succession over that period;

or (c) by different combinations of computers operating in succession over

that period; or (d) in any other manner involving the successive operation

over that period, in whatever order, of one or more computers and one or

more combinations of computers, all the computers used for that purpose

during that period shall be treated for the purposes of this section as

constituting a single computer; and references in this section to a computer

shall be construed accordingly.

(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.

(5) For the purposes of this section, - (a) information shall be taken to be

supplied to a computer if it is supplied thereto in any appropriate form and

whether it is so supplied directly or (with or without human intervention) by

means of any appropriate equipment; (b) whether in the course of activities

carried on by any official, information is supplied with a view to its being

stored or processed for the purposes of those activities by a computer

operated otherwise than in the course of those activities, that information, if

duly supplied to that computer, shall be taken to be supplied to it in the

course of those activities; (c) a computer output shall be taken to have been

produced by a computer whether it was produced by it directly or (with or

without human intervention) by means of any appropriate equipment.

Explanation: For the purposes of this section any reference to information

being derived from other information shall be a reference to its being derived

there from by calculation, comparison or any other process.” These are the

provisions under the Evidence Act relevant to the issue under discussion.
12. In the Statement of Objects and Reasons to the IT Act, it is stated thus:

“New communication systems and digital technology have made drastic

changes in the way we live. A revolution is occurring in the way people

transact business.” In fact, there is a revolution in the way the evidence is

produced before the court. Properly guided, it makes the systems function

faster and more effective. The guidance relevant to the issue before us is

reflected in the statutory provisions extracted above.

13. Any documentary evidence by way of an electronic record under the

Evidence Act, in view of Sections 59 and 65A, can be proved only in

accordance with the procedure prescribed under Section 65B. Section 65B

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.

It may be noted that the Section starts with a non obstante clause. Thus,

notwithstanding anything contained in the Evidence Act, 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 a document only if the conditions mentioned under

sub-Section (2) are satisfied, without further proof or production of the

original. The very admissibility of such a document, i.e., electronic record

which is called as computer output, depends on the satisfaction of the four

conditions under Section 65B(2). Following are the specified conditions under

Section 65B(2) of the Evidence Act:

(i) The electronic record containing the information should have been

produced by the computer during the period over which the same was

regularly used to store or process information for the purpose of any activity

regularly carried on over that period by the person having lawful control over

the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind

from which the information is derived was regularly fed into the computer in

the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating

properly and

that even if it was not operating properly for some time, the break or breaks

had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or

derivation from the information fed into the computer in the ordinary course of

the said activity.

14. Under Section 65B(4) of the Evidence Act, if it is desired to give a

statement in any proceedings pertaining to an electronic record, it is

permissible provided the following conditions are satisfied: (a) There must be

a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record

was produced; (c) The certificate must furnish the particulars of the device

involved in the production of that record; (d) The certificate must deal with the

applicable conditions mentioned under Section 65B(2) of the Evidence Act;

and (e) The certificate must be signed by a person occupying a responsible

official position in relation to the operation of the relevant device.

15. It is further clarified that the person need only to state in the certificate

that the same is to the best of his knowledge and belief. Most importantly,

such a certificate must accompany the electronic record like computer

printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc.,

pertaining to which a statement is sought to be given in evidence, when the

same is produced in evidence. All these safeguards are taken to ensure the

source and authenticity, which are the two hallmarks pertaining to electronic

record sought to be used as evidence. Electronic records being more

susceptible to tampering, alteration, transposition, excision, etc. without such

safeguards, the whole trial based on proof of electronic records can lead to

travesty of justice.

16. Only if the electronic record is duly produced in terms of Section 65B of

the Evidence Act, the question would arise as to the genuineness thereof and

in that situation, resort can be made to Section 45A – opinion of examiner of

electronic evidence.

17. The Evidence Act does not contemplate or permit the proof of an

electronic record by oral evidence if requirements under Section 65B of the

Evidence Act are not complied with, as the law now stands in India.

18. It is relevant to note that Section 69 of the Police and Criminal Evidence

Act, 1984 (PACE) dealing with evidence on computer records in the United
Kingdom was repealed by Section 60 of the Youth Justice and Criminal

Evidence Act, 1999. Computer evidence hence must follow the common law

rule, where a presumption exists that the computer producing the evidential

output was recording properly at the material time. The presumption can be

rebutted if evidence to the contrary is adduced. In the United States of

America, under Federal Rule of Evidence, reliability of records normally go to

the weight of evidence and not to admissibility.

19. Proof of electronic record is a special provision introduced by the IT Act

amending various provisions under the Evidence Act. The very caption of

Section 65A of the Evidence Act, read with Sections 59 and 65 B is sufficient

to hold that the special provisions on evidence relating to electronic record

shall be governed by the procedure prescribed under Section 65 B of the

Evidence Act. That is a complete code in itself. Being a special law, the

general law under Sections 63 and 65 has to yield.

36. State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru53 ,

a two-Judge Bench of this Court had an occasion to consider an issue on

production of electronic record as evidence. While considering the printouts of

the computerized records of the calls pertaining to the cell phones, it was held

at Paragraph-150 as follows:

“150. According to Section 63, secondary evidence means and includes,

among other things, “copies made from the original by mechanical processes

53
(2005) 11 SCC 600
which in themselves insure the accuracy of the copy, and copies compared

with such copies”. Section 65 enables secondary evidence of the contents of

a document to be adduced if the original is of such a nature as not to be

easily movable. It is not in dispute that the information contained in the call

records is stored in huge servers which cannot be easily moved and

produced in the court. That is what the High Court has also observed at para

276. Hence, printouts taken from the computers/servers by mechanical

process and certified by a responsible official of the service-providing

company can be led in evidence through a witness who can identify the

signatures of the certifying officer or otherwise speak of the facts based on

his personal knowledge. Irrespective of the compliance with the requirements

of Section 65-B, which is a provision dealing with admissibility of electronic

records, there is no bar to adducing secondary evidence under the other

provisions of the Evidence Act, namely, Sections 63 and 65. It may be that

the certificate containing the details in sub-section (4) of Section 65-B is not

filed in the instant case, but that does not mean that secondary evidence

cannot be given even if the law permits such evidence to be given in the

circumstances mentioned in the relevant provisions, namely, Sections 63 and

65.”

21. It may be seen that it was a case where a responsible official had duly

certified the document at the time of production itself. The signatures in the

certificate were also identified.

 That is apparently in compliance with the procedure prescribed under

Section 65B of the Evidence Act. However, it was held that irrespective of the

compliance with the requirements of Section 65B, which is a special

provision dealing with admissibility of the electronic record, there is no bar in

adducing secondary evidence, under Sections 63 and 65, of an electronic

record.

22. The evidence relating to electronic record, as noted herein before, being a

special provision, the general law on secondary evidence under Section 63

read with Section 65 of the Evidence Act shall yield to the same. Generally

specially non derogant, special law will always prevail over the general law. It

appears, the court omitted to take note of Sections 59 and 65A dealing with

the admissibility of electronic record. Sections 63 and 65 have no application

in the case of secondary evidence by way of electronic record; the same is

wholly governed by Sections 65A and 65B. To that extent, the statement of

law on admissibility of secondary evidence pertaining to electronic record, as

stated by this court in Navjot Sandhu case (supra), does not lay down the

correct legal position. It requires to be overruled and we do so. An electronic

record by way of secondary evidence shall not be admitted in evidence

unless the requirements under Section 65B are satisfied. Thus, in the case of

CD, VCD, chip, etc., the same shall be accompanied by the certificate in

terms of Section 65B obtained at the time of taking the document, without

which, the

secondary evidence pertaining to that electronic record, is inadmissible.

23. The appellant admittedly has not produced any certificate in terms of

Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15,

P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the

whole case set up regarding the corrupt practice using songs,

announcements and speeches fall to the ground.

24. The situation would have been different had the appellant adduced

primary evidence, by making available in evidence, the CDs used for

announcement and songs. Had those CDs used for objectionable songs or

announcements been duly got seized through the police or Election

Commission and had the same been used as primary evidence, the High

Court could have played the same in court to see whether the allegations

were true. That is not the situation in this case. The speeches, songs and

announcements were recorded using other instruments and by feeding them

into a computer, CDs were made there from which were produced in court,

without due certification. Those CDs cannot be admitted in evidence since the

mandatory requirements of Section 65B of the Evidence Act are not satisfied.

It is clarified that notwithstanding what we have stated herein in the preceding

paragraphs on the secondary evidence on electronic record with reference to

Section 59, 65A and 65B of the Evidence Act, if an electronic record as such

is used as primary evidence under Section 62 of the Evidence Act, the same

is admissible in evidence, without compliance of the conditions in Section 65B

of the Evidence Act.

37. P.B. Desai (Dr.) others v. State of Maharastra54,

The short but important question that arose in this case was whether the

evidence of a prosecution witness can be recorded on video conferencing

and whether it is permissible in law in a criminal trial in the face of section 273

of the Code of Criminal Procedure. In the case before the Metropolitan

Magistrate, an application came to be filed by the learned Special Public

Prosecutor for examination of Dr. Greenberg from New York, U.S.A. by video

conferencing on the ground that the said doctor had expressed his inability to

personally come to India due to his old age and health problems. The learned

magistrate has allowed the said application. The said order was challenged

before the High Court of Bombay mainly on the ground that recording

evidence on video conferencing would not meet the requirements of section

273 of Cr.P.C. under which all the evidence of the prosecution witnesses has

to be recorded in the presence of the accused. The Hon’ble High Court of

Bombay observed that the question is not whether it is possible or practicable

to record the evidence on video conferencing or the feasibility thereof or the

choice either of the Judge or of the parties but the question is whether the law

permits the recording of the deposition of a witness on video conferencing

and whether such recording of evidence would be in consonance with the

procedure laid down in the Code. The Hon’ble Court further observed that the

perusal of section 273 shows that there is a mandate to take evidence of the

witnesses in a criminal trial in the presence of the accused. The court also
54
AIR 2003 SC 2053
considered the various provisions of the Criminal Procedure Code. The court

explained the words “in presence of the accused” in section 273 of Cr.P.C.

The Hon’ble High Court of Bombay also cited various judgments of foreign

jurisdictions. In view of the various discussions, the Hon’ble High Court of

Bombay held that Metropolitan was in error in allowing the application of the

prosecution to examine Dr. Greenberg through video conferencing. However,

the hon’ble Supreme Court, deciding the appeals against the judgment of the

Bombay High Court observed that video conferencing is an advancement of

science and technology which permits seeing, hearing and talking with

someone who is not physically present with the same facility and ease as if

they were physically present. The legal requirement for the presence of the

witness does not mean actual physical presence. The court allowed the

examination of a witness through video conferencing and concluded that

there is no reason why the examination of a witness by video conferencing

should not be an essential part of electronic evidence. The Hon’ble Supreme

Court reiterated Section 3 of the Indian Evidence Act which reads as follows :

“Evidence-Evidence means and includes- (1) all statements which the Court

permits or requires to be made before it by witnesses, in relation to matters of

fact under inquiry; such statements are called oral evidence (2) all documents

including electronic records produced of the inspection of the Court; such

documents are called documentary evidence". Thus evidence can be both

oral and documentary and electronic records can be produced as evidence.

This means that evidence, even in criminal matters, can also be by way of
electronic records. This would include video-conferencing. The Hon'ble

Supreme Court also observed: “Recording of evidence by video conferencing

also satisfies the object of providing, in Section 273, that evidence be

recorded in the presence of the Accused. The Accused and his pleader can

see the witness as clearly as if the witness was actually sitting before them. In

fact the Accused may be able to see the witness better than he may have

been able to if he was sitting in the dock in a crowded Court room. They can

observe his or her demeanor. In fact the facility to play back would enable

better observation of demeanor. They can hear and rehear the deposition of

the witness. The Accused would be able to instruct his pleader immediately

and thus cross-examination of the witness is as effective, if not better. The

facility of play back would give an added advantage whilst cross-examining

the witness. The witness can be confronted with documents or other material

or statement in the same manner as if he/she was in Court. All these objects

would be fully met when evidence is recorded by video conferencing. Thus no

prejudice, of whatsoever nature, is caused to the Accused. Of course, as set

out hereinafter, evidence by Video Conferencing has to be on some

conditions.”

38. SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra55

55
Suit No. 1279/2001. This case is still pending. Sited from “Ascertaining Cyber Jurisdiction in Cyber Space:
Jurisprudential Understanding and A Comparative Analysis” published by AIR Journal and available at
http://www.allindiareporter.in/ articles/index.php?article=1022 and orders available on Delhi High Court
website http://www.delhihighcourt.nic.in/dhc_ case_status_list_new.asp
The Delhi High Court assumed jurisdiction where a corporate reputation was

being defamed through e-mails. Further, the Act also provides for extension

of the Code to extra-territorial offences. The provisions of this Code apply

also to any offence committed by any person in any place without and beyond

India

committing offence targeting a computer resource located in India. It further

defines the word “offence” includes every act committed outside India which,

if committed in India, would be punishable under this Code

39. The Apex Court in Modi Entertainment Network and anr v. W.S.G. Cricket
Pvt. Ltd56.

held that It is a common ground that the courts in India have power to issue

anti-suit injunction to a party over whom it has personal jurisdiction, in an

appropriate case.

This is because courts of equity exercise jurisdiction in persona. However,

having regard to the rule of comity, this power will be exercised sparingly

because such an injunction though directed against a person, in effect causes

interference in the exercise of jurisdiction by another court.

From the above discussion the following principles emerge:-

1. In exercising discretion to grant an anti-suit injunction the court must be

satisfied of the following aspects:(a) the defendant, against whom injunction

is sought, is amenable to the personal jurisdiction of the court;(b) if the

56
AIR 2003 SC 1177
injunction is declined, the ends of justice will be defeated and injustice will be

perpetuated; and(c) the principle of comity respect for the court in which the

commencement or continuance of action/proceeding is sought to be

restrained must be borne in mind.

2. In a case where more forums than one are available, the court in exercise

of its discretion to grant anti-suit injunction will examine as to which is the

appropriate forum (forum convenience) having regard to the convenience of

the parties and may grant anti-suit injunction in regard to proceedings which

are oppressive or vexatious or in a forum non-convenience.

(India TV) Independent News ... vs. India Broadcast Live And Ors57.

40. Purposeful Availment Test

The ‘purposeful availment test’ has been used whether a company can be

sued in a specific jurisdiction in the case of Internet companies.

Courts specifically look at three factors-

(1) availment of a company to another jurisdiction

(2) whether the act was done in another jurisdiction and

(3) whether the jurisdiction is reasonable for the defendant to be expected to

defend himself there.

41. The Supreme Court in Kusum Ingots & Alloys Limited v. Union of
India and Anr58

57
, MIPR 2007 (2) 396, 2007 (35) PTC 177 Del.

58
(2004) 6 SCC 254
to advance the proposition that even if a small part of the cause of action

arises within the territorial jurisdiction of the High Court, the same by itself

may not be considered to be a determinative factor compelling the High Court

to decide the matter on merits. In appropriate cases, the Court may refuse to

exercise its discretionary jurisdiction by invoking the doctrine of forum

convenience. The tests usually applied by American Courts for the exercise

of personal jurisdiction over non-resident defendants are (a) existence of

sufficient minimum contacts with the forum state (b) claim asserted must arise

out of the contact (c) exercise of jurisdiction must be reasonable and (d)

effect test.

42. Indian Case Laws vis-à-vis E-commerce

Unlike US Courts, courts in India are not frequently confronted with the issue

of jurisdiction in matter relating to cyber space. In Casio India Co. Ltd V.

Ashita Tele Systems Pvt Ltd59, Delhi High Court held that once a web site

can be accessed from Delhi, it is enough to invoke the territorial jurisdiction of

the Court. It is further held in India TV Independent News Service Pvt Ltd V.

India Broadcast Live LLC60, that the mere fact that a website is accessible in

a particular place may not itself be sufficient for the courts of that place to

exercise personal jurisdiction over the owners of the website. However,

where the website is not merely passive but it is interactive permitting the

59
2003 27 PTC 265 Delhi
60
2007 35 PTC 177 Delhi
browsers to not only access the contents thereof but also to subscribe to the

services provided by the owners, then the position would be different.

43. National Association of Software and Service Companies vs. Ajay

Sood & Others61,

decided by Delhi High Court in 2005, the defendants were operating a

placement agency involved in `head-hunting' and recruitment. In order to

obtain personal data which they could use for head-hunting, the defendants

composed and sent emails to third parties in NASSCOM's name. Court

granted Injunction and Rs. 16 lakhs as damages.

44. SMC Pneumatics (India) Private Limited v. Jogesh Kwatra62

Delhi High Court in SMC Pneumatics (India) Private Limited v. Jogesh

Kwatra63 granted an injunction and restrained the employee from sending,

publishing and transmitting emails which are defamatory or derogatory to the

plaintiffs.

45. Syed Asifuddin & Ors V State of Andhra Pradesh & another64

-Employees of a completing mobile services company lured the customers of

the above company to alter / tamper with the special (locking) computer

61
119 (2005) DLT 596, 2005 (30) PTC 437 Del

62
Being Suit No. 1279/2001 available at http://cyberlaws.net/cyberindia/defamation.htm
63
Being Suit No. 1279/2001 available at http://cyberlaws.net/cyberindia/defamation.htm
64
2005 CrLJ4314 (AP)
program / technology so that the hand-set can be used with the competing

mobile services. Held: such tampering is an offence u/s 65 of IT Act as well

as Copyright infringement u/s 63 of Copyrights Act.

46. Casio India Co. Limited v. Ashita Tele Systems Pvt. Limited65

was a passing off action where the defendant was carrying on business from

Bombay. The defendant had managed to get a registration of domain name

www.casioindia.com and defendant no. 2 was the Registrar with whom the

domain name had been registered. The plaintiff, on the other hand, claimed

to be a 100% subsidiary of Casio Computer Ltd., Japan (Casio Japan), which

was the registered owner of the trade mark ‘Casio’ in India used for a large

number of electronic and other products. He had registered a large number of

domain names in India like ‘CasioIndiaCompany.com’, ‘CasioIndia.org’,

‘CasioIndia.net’, etc. Defendant No. 1 had obtained the above domain names

during the time when it held a distributorship agreement with the plaintiff. It

was held by the learned single Judge after referring to the decisions in Rediff

Communication Ltd66. v. Cyber Booth and Dow Jones & Co. Inc. v.

Gutnick67 that “once access to the impugned domain name website could be

had from anywhere else, the jurisdiction in such matters cannot be confined

to the territorial limits of the residence of the defendant.” According to the

learned single Judge, since a mere likelihood of deception, whereby an

65
2003 (27) P.T.C. 265 (Del.) (India), overruled by Banyan Tree Holding (P) Limited v. A. Murali Krishna
Reddy, CS(OS) 894/2008 (High Court of Delhi, 23rd November 2009) (India).
66
A.I.R. 2000 Bom 27 (India)
67
(2002) H.C.A. 56 (Austl.)
average person is likely to be deceived or confused was sufficient to entertain

an action for passing off, it was not at all required to be proved that “any

actual deception took place at Delhi. Accordingly, the fact that the website of

Defendant No. 1 can be accessed from Delhi is sufficient to invoke the

territorial jurisdiction of this Court.”

47. Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy68

Delhi HC overruling its prior Caiso judgment held that for the purposes of a

passing off action, or an infringement action where the plaintiff is not carrying

on business within the jurisdiction of a court, and in the absence of a long-

arm statute, in order to satisfy the forum court that it has jurisdiction to

entertain the suit, the plaintiff would have to show that the defendant

‘purposefully availed’ itself of the jurisdiction of the forum court. For this it

would have to be prima facie shown that the nature of the activity indulged in

by the defendant by the use of the website was with an intention to conclude

a commercial transaction with the website user and that the specific targeting

of the forum state by the defendant resulted in an injury or harm to the plaintiff

within the forum state.

48. Ramanathan Chettiar v Soma Sunderam Chettiar

It was held in Ramanathan Chettiar v Soma Sunderam Chettiar69 that India

accepts the well established principle of private international law that the law

68
CS (OS) 894/2008 (High Court of Delhi, 23rd November 2009) (India)
69
AIR 1964 Madras 527
of the forum in which the legal proceedings are instituted governs all matters

of procedure.

49. State of Tamil Nadu Vs Suhas Katti

The Case of Suhas Katti is notable for the fact that the conviction was

achieved successfully within a relatively quick time of 7 months from the filing

of the FIR. Considering that similar cases have been pending in other states

for an much longer time, the efficient handling of the case which happened to

be the first case of the Chennai Cyber Crime Cell going to trial deserves a

special mention. The case related to posting of obscene, defamatory and

annoying message about a divorcee woman in the yahoo message group. E-

Mails were also forwarded to the victim for information by the accused

through a false e-mail account opened by him in the name of the victim. The

posting of the message resulted in annoying phone calls to the lady in the

belief that she was soliciting. Based on a complaint made by the victim in

February 2004, the Police traced the accused to Mumbai and arrested him

within the next few days. The accused was a known family friend of the victim

and was reportedly interested in marrying her. She however married another

person. This marriage later ended in divorce and the accused started

contacting her once again. On her reluctance to marry him, the accused took

up the harassment through theb Internet. On 24-3-2004 Charge Sheet was

filed u/s 67 of IT Act 2000, 469 and 509 IPC before The Hon’ble Addl. CMM

Egmore by citing 18 witnesses and 34 documents and material objects. The

same was taken on file in C.C.NO.4680/2004. On the prosecution side 12

witnesses were examined and entire documents were marked as Exhibits.

The Defence argued that the offending mails would have been given either by

ex-husband of the complainant or the complainant herself to implicate the 104

accused as accused alleged to have turned down the request of the

complainant to marry her. Further the Defence counsel argued that some of

the documentary evidence was not sustainable under Section 65B of the

Indian Evidence Act. However, the court relied upon the expert witnesses and

other evidence produced before it, including the witnesses of the Cyber Cafe

owners and came to the conclusion that the crime was conclusively proved.

Ld. Additional Chief Metropolitan Magistrate, Egmore, delivered the

judgement on 5-11-04 as follows: " The accused is found guilty of offences

under section 469, 509 IPC and 67 of IT Act 2000 and the accused is

convicted and is sentenced for the offence to undergo RI for 2 years under

469 IPC and to pay fine of Rs.500/-and for the offence u/s 509 IPC sentenced

to undergo 1 year Simple imprisonment and to pay fine of Rs.500/- and for

the offence u/s 67 of IT Act 2000 to undergo RI for 2 years and to pay fine of

Rs.4000/- All sentences to run concurrently." This is considered as the first

case convicted under Section 67 of Information Technology Act 2000 in India.

50. Syed Asifuddin and Ors. V. The State of AP. & Anr., 2005CriLJ4314

Tata Indicom employees were arrested for manipulation of the electronic 32-

bit number (ESN) programmed into cell phones that were exclusively
franchised to Reliance Infocomm. The court held that such manipulation

amounted to tampering with computer source code as envisaged by section

65 of the Information Technology Act, 2000. Reliance Infocomm launched a

scheme under which a cell phone subscriber was given a digital handset

worth Rs. 10,500/- as well as service bundle for 3 years with an initial

payment of Rs. 3350/- and monthly outflow of Rs. 600/-. The subscriber was

also provided a 1 year warranty and 3 year insurance on the handset. The

condition was that the handset was technologically locked so that it would

only work with the Reliance Infocomm services. If the customer 105 wanted

to leave Reliance services, he would have to pay some charges including the

true price of the handset. Since the handset was of a high quality, the market

response to the scheme was phenomenal. Unidentified persons contacted

Reliance customers with an offer to change to a

lower priced Tata Indicom scheme. As part of the deal, their phone would be

technologically "unlocked" so that the exclusive Reliance handsets could be

used for the Tata Indicom service. Reliance officials came to know about this

"unlocking" by Tata employees and lodged a First Information Report (FIR)

under various provisions of the Indian Penal Code, Information Technology

Act and the Copyright Act. The police then raided some offices of Tata

Indicom in Andhra Pradesh and arrested a few Tata Tele Services Limited

officials for reprogramming the Reliance handsets. These

arrested persons approached the High Court requesting the court to quash

the FIR on the grounds that their acts did not violate the said legal provisions.
Some of the issues raised by the defence in the case were - It is always open

for the subscriber to change from one service provider to the other service

provider; The subscriber who wants to change from Tata Indicom always

takes his handset, to other service providers to get service connected and to

give up

Tata services; The handsets brought to Tata by Reliance subscribers are

capable of accommodating two separate lines and can be activated on

principal assignment mobile ( NAM 1 or NAM 2). The mere activation of NAM

1 or NAM 2 by Tata in relation to a handset brought to it by a Reliance

subscriber does not amount to any crime; A telephone handset is neither a

computer nor a computer system containing a computer programmed; there

is no law in force which requires the maintenance of "computer source code".

Hence section 65 of the Information Technology Act does not apply.

Following were the observations of the Court –

1. As per section 2 of the Information Technology Act, any electronic,

magnetic or optical device used for storage of information received

through satellite, microwave or other communication media and the

devices which are programmable and capable of retrieving any

information by manipulations of electronic, magnetic or optical impulses

is a computer which can be used as computer system in a computer

network.

2. The instructions or programmed given to computer in a language

known to the computer are not seen by the users of the

 computer/consumers of computer functions. This is known as source

code in computer parlance.

3. ESN and SID come within the definition of "computer source code"

under section 65 of the Information Technology Act.

4. When ESN is altered, the offence under Section 65 of Information

Technology Act is attracted because every service provider has to

maintain its own SID code and also give a customer specific number to

each instrument used to avail the services provided.

51. P.R. Transport Agency Vs. Union of India (UOI)

Bharat Coking Coal Ltd (BCC) held an e-auction for coal in different lots. P.R.

Transport Agency's (PRTA) bid was accepted for 4000 metric tons of coal

from Dobari Colliery. The acceptance letter was issued on 19th July 2005 by

e-mail to PRTA's e-mail address. Acting upon this acceptance, PRTA

deposited the full amount of Rs. 81.12 lakh through a cheque in favour of

BCC. This cheque was accepted and encashed by BCC. BCC did not deliver

the coal to PRTA. Instead it e-mailed PRTA saying that the sale as well as

the e-auction in favour of PRTA stood cancelled "due to some technical and

unavoidable reasons". The only reason for this cancellation was that there

was some other person whose bid for the same coal was slightly higher than

that of PRTA. Due to some flaw in the computer or it’s programmed or

feeding of data the higher bid had not been considered earlier. This

communication was challenged by PRTA in the High Court of Allahabad.

BCC objected to the "territorial jurisdiction" of the Court on the grounds that

no part of the cause of action had arisen within U.P. The communication of

the acceptance of the tender was received by the petitioner by e-mail at

Chandauli (U.P.). Hence the contract (from which the dispute arose) was

completed at Chandauli (U.P). The completion of the contract is a part of the

"cause of action'. The place where the contract was completed by receipt of

communication of acceptance is a place where 'part of cause of action'

arises. The Court observed

1. In reference to contracts made by telephone, telex or fax, the

contract is complete when and where the acceptance is

received. However, this principle can apply only where the

transmitting terminal and the receiving terminal are at fixed

points.

2. In case of e-mail, the data (in this case acceptance) can be

transmitted from anywhere by the e-mail account holder. It

goes to the memory of a 'server' which may be located

anywhere and can be retrieved by the addressee account

holder from anywhere in the world. Therefore, there is no fixed

point either of transmission or of receipt.

3. Section 13(3) of the Information Technology Act has covered

this difficulty of "no fixed point either of transmission or of

receipt". According to this section "...an electronic record is

 deemed to be received at the place where the addressee has

his place of business."

4. The acceptance of the tender will be deemed to be received by

PRTA at the places where it has place of business. In this case

it is Varanasi and

Chandauli (both in U.P.)

The acceptance was received by PRTA at Chandauli /

Varanasi. The contract became complete by receipt of such

acceptance. Both these places are within the territorial

jurisdiction of the High Court of Allahabad. Therefore, a part of

the cause of action has arisen in U.P. and the court has

territorial jurisdiction.

52. SMC Pneumatics (India) Private Limited v. Jogesh Kwatra

A company’s employee started sending derogatory, defamatory and obscene

emails about company’s Managing Director. The emails were anonymous

and frequent and were sent to many company’s business associates to

tarnish the image and goodwill of the company. The accused was identified

by the company by the private computer expert. Delhi High Court granted an

injunction and restrained the employee from sending, publishing and

transmitting emails which are defamatory or derogatory to the plaintiffs.

53 .Ritu Kohli case

One Mrs. Ritu Kohli complained to the police against the a person who was

using her identity to chat over the Internet at the website www.mirc.com,

mostly in the Delhi channel for four consecutive days. Mrs. Kohli further

complained that the person was chatting on the Net, using her name and

giving her address and was talking obscene language. The same person was

also deliberately giving her telephone number to other chatters encouraging

them to call Ritu Kohli at odd hours. Consequently, Mrs Kohli received almost

40 calls in three days mostly at odd hours from as far away as Kuwait,

Cochin, Bombay and Ahmedabad. The said calls created havoc in the

personal life and mental peace of Ritu Kohli who decided to report the matter.

The IP addresses were traced and the police investigated the entire matter

and ultimately arrested Manish Kathuria on the said complaint. Manish

apparently pleaded guilty and was arrested. A case was registered under

section 509, of the Indian Penal Code (IPC).

54. Avnish Bajaj Vs. State (N.C.T.) of Delhi

Avnish Bajaj – CEO of Baazee.com, a customer-to-customer website, which

facilitates the online sale of property. Baazee.com receives commission from

such sales and also generates revenue from advertisements carried on its

web pages. An obscene MMS clipping was listed for sale on Baazee.com on

27th 109 November, 2004 in the name of “DPS Girl having fun”. Some copies

of the clipping were sold through Baazee.com and the seller received the

money for the sale. Avnish Bajaj was arrested under section 67 of the
Information Technology Act, 2000. The arguments of the defendant were that

- Section 67 of the Information Technology Act relates to publication of

obscene material. It does not relate to

transmission of such material. On coming to learn of the illegal character of

the sale, remedial steps were taken within 38 hours, since the intervening

period was a weekend.

The findings of the Court –

publication took place by the accused, directly or indirectly.

portal of Baazee.com.

sale consideration was not routed through the accused.

already crystallized and may even be tamper proof.

origin with family roots in India.

obscene material may have been unwittingly offered for sale on

the website.

nature of the alleged crime may be attributable to some other

 person. The court granted bail to Mr. Bajaj subject to furnishing two

sureties of Rs. 1 lakh each. The court ordered Mr. Bajaj to surrender his

passport and not to leave India without the permission of the Court. The court

also ordered Mr. Bajaj to participate and assist in the investigation.

Socio -legal impact of cyber fraud in India : SOCIO

55. Hyderabad’s Rs. 20 Crore Data Conversation Fraud :…….

Mr. C. Suresh, the Managing Director of Vinsri Infotech and owner of the

website InfoTech Pvt. Ltd. had started his business in 1997 of data

conversion, to give data entry works, to provide services for data entry,

medical transcription, management and e-Books etc. In January 2002, he

fraudulently received Rs. 2.5 lakh non-refundable deposits from each of the

clients giving false promise to give data entry work.156 And in February 2003,

when cheques issued to his clients by him were not cleared rather dishonored

because funds were not available; his clients started demanding either refund

of their deposited amount or clearance of their bills and to provide work. But

Mr. C. Suresh, the accused was silent. Therefore, his clients went to police

and lodged separate complaints. Then he was arrested from Secundrabad on

the charge of cyber fraud i.e. about Rs. 20 crore data conversion fraud.

56. Bangalore Cyber Fraud Case

The Sutra Solutions with 42 branch offices were working as Call Centre and

had taken more than 400 students and others promising them to give jobs
after few months. They were taken as trainees. The Sutra collected from

trainees Rs. 6,000 as customer support and Rs. 25,000 for technical support;

total Rs. 1.2 crore from all. After depositing the said money some of the

trainees identified that the Sutra’s website named www.sutrasolutions.com

was going down, they were not paying building rent and telephone rents were

due. Thereafter the victims lodged complaints against the company. Ajay

Shah (CEO) had been absconding and police arrested Mr. Raju

Krishnamurthy on the charge of cyber fraud though thereafter he was

released on bail.

57. Click Fraud

This is a kind of cyber fraud related to clicking on web search advertisements

by users who have no aim to do business with advertisers. In web the

company who puts the advertisement has to pay for each click by users to the

web-search providers, for e.g. Google, Yahoo and Rediffmail etc. These web-

search providers, therefore, use machines and people to make more clicks on

advertisement and for which they will earn money from the advertisers.

58. Pune Cyber Fraud Case

About 16 accused were arrested in the incident of Pune cyber fraud. Young

employees of BPO industry Mphasis – Msource were the accused. They

defrauded the United States based Citibank customers of more than Rs. 1.5

crore, including damage to data. John Varghese, a 31 years young was the
master mind of the story. The accused were authorized to access the

confidential information of Citibank account holders as the bank was the e-

banking service providers. The accused accessed password/PINs information

from about 5 account holders. Thereafter the culprits have started their

operation by sending and diverting e-mails of e-banking funds transactions.

The victims were only receiving about funds transfer nothing else. One of the

victims then lodged complaint to the Citibank and then Citibank alerted the

Mumbai and New York City Investigative Services about the same. Mumbai

Citigroup immediately reached recipient banks in Pune and alerted the Pune

Police’s Cyber Crime Cell to trap the cyber fraud. The accused were caught

red-handed while they were about to check the fund transfer in a Rupees Co-

operative Bank, Pune. The accused were charged u/s 65, 66, 71 and 72 of

the IT Act, 2000 and u/s 420, 465, 467 and 671 of the IPC, 1860.

59. Karan Bahree’s Case

The sting operation of the British Tabloid through their newspaper ‘The Sun’

seemed Indian BPO industries very cloudy in the end of June 2005. On 24th

June 2005, a Journalist of 112 ‘The Sun’ newspaper expressed that he had

obtained account numbers, secret passwords, credit card details etc. of

almost 1000 British Bank customers from Karan Bahree, the employee of a

BPO firm at Gurgaon by paying 3 pounds. This 24 years old Mr. Karan

Bahree was employed only before 3 months of the incident on probation as a

Junior content writer with infinity e-search. He did not have authority to
access those confidential information said by his employer. Subsequently,

Karan was fired from the job. Karan delivered a Compact Disk (CD) to Mr.

Oliver who was from the UK as the undercover reporter of British Tabloid

Newspaper.159 But, no complaint has been registered to control and punish

this culprit with the economic offence wing of the Delhi Police. Karan

Bahree’s case was dealt with u/s 43 (b), 65, 66, 72 and 74 of the IT Act,

2000. After Karan Bahree’s case in June-July 2005, Prime Minister Dr.

Manmohan Singh directed NASSCOM to amend and adopt more effective

Data Protection Laws, security measures and to increase penalties for cyber

crimes in superhighway with the tune of the UK, the USA and to adopt

International standard of security system to prevent these instances in future.

Dr. Singh said that “Indian professionals have built for themselves an

enviable global reputation through hard work, dedication and commitment,

and the occasional misguided acts of some individuals should not be allowed

to damage the high reputation of all professionals.

60. Lottery Fraud and Cyber Squatter

Most of the times we receive electronic mails information that we are going to

win or we won a prize in a lottery. To receive lottery money the recipients of

letters or e-mails naturally sent their reply. As they will send reply again they

will receive another e-mail asking information about bank accounts, mode of

transactions they prefer and other confidential information. They do charge

money as processing fee before that fund transfer. But that prize in lottery to
recipient’s accounts never happened and on the other hand his confidential

information, bank accounts etc. may be misused or abused for commission of

other crimes.

61. West Bengal Cyber Fraud Case

The Kolkata Police raided about 792 online lottery units and 7 district units

on 19th December 2004. The State Finance Department sought police force

on 17th December to control violation of the Lotteries Regulation Act, 1998.

The Police seized about 472 electronic lottery devices in Kolkata and

investigated that most of them do not have trade licenses.

62. HSBC, Bangalore Cyber Fraud Case

The accused who was a resident of Bangalore joined HSBC on 12th

December 2005 producing forged certificates. He had links with terrorist

groups and the underworld groups.

He was arrested on charges of data theft and cyber fraud. He committed

data theft to illegally transfer money from account of a multinational and the

UK based Bank’s customers. HSBC Electronic Data Processing India Pvt.

Ltd., Bangalore was the Bank’s BPO arm. They had lodged a complaint with

the Cyber Crime Police Station (CCPS) against that cyber fraud. The crime

was so dangerous in nature that the HSBC’s technical team from Hyderabad

as well as Interpol section of police department became involved to

investigate and control it.

63. Kolkata Cyber Fraud Case Sulagna Roy,

a 23 years old NIFT educated call centre employee committed cyber fraud
through calcuttaweb.com. Her nature of work was selling dish TV to US client.
During her work she collected credit card information of those clients and
then started purchasing more than 52 items worth Rs. 1.8 lakh ($,4,000) by
using laptop internet and cyber cafes internet, these items were including
jewellery, sarees, chocolate, air-conditioner etc. The calcuttaweb.com
provided details of purchases to Detective Department and CID at Kolkata.
She only earned Rs. 8,000 monthly but was buying that valuable thing. She
was arrested and charged with fraud and cheating. She confessed that she
did it for fun but not to commit any intentional crime.

64. Cyber Fraud traced by Detective Department of Mumbai

The owner of Mumbai based e-portal NS Shop-mart named ‘Sidhartha’ was

arrested in the month of September 2006. Sidhartha committed cyber fraud

and e-commerce cheating with Supriyo Roy of Barasat at West Bengal.

Through http://www.rediff.com Supriyo Roy had purchased an LCD monitor

and paid Rs, 15,000 in favour of Sidhartha. But, the LCD was never delivered

to Supriyo, rather a cartoon stuffed with paper reached his home a few days

later. The police found Sidhartha’s portal from rediff.com and brought him

back to Kolkata after arresting him from Dadar, Mumbai.

65. Nigerian Scam in Delhi

Recently, the Special Operation Squad of the Delhi Police Crime Branch

cracked Nigerian gang in Delhi which was involved in cyber fraud. They used

to send fake mails through internet, which appeared to be genuine mails sent
by banks to their customers, and used to ask their customer ID, e-banking ID,

account number, and password etc. thereafter, they used to transfer the

money in these customer’s account to their own account.

66. Abdul Kadir’s Case

The Special Task Force of U.P arrested 2 persons allegedly involved in

internet fraud and cheating people of hefty amount. They used to trap their

clients by sending them e-mails luring them in the name of their selection for

a lottery prize of $ 2 b. They also demanded money from the parties in the

name of courier and VAT charges and doing insurance prior to transferring

their prize amount.

67.Cyber Pornography

i. Meaning of Cyber Pornography

Morality has sociological and psychological aspects. Morality is individual’s

perception due to which human beings accept certain things as good and

reject certain things as bad in society. It is dynamic with dynamic society. It

varies from person to person and society to society. What is immoral for one

is not so to other or in other society. There is no yardstick to determine what

things are moral and what are immoral. Therefore, it is left to the judiciary as

reasonable and prudent repository of moral standard in society. Law and

morality are closely related. When there is synthesis between them in society,

there will be no conflict and society will progress smoothly and fast. But all

morals are not enforceable by law rather we have to make a balance and
accept shared morality. We have freedom of speech and expression under

the Constitution167 but reasonable restriction is imposed on it to maintain

decency and morality. 168 Again restrictions imposed by the IPC, 1860

provide for offences against morality, decency, privacy, law and order.169

Therefore, obscenity is prohibited. In the era of information technology it is

prohibited by the IT Act, 2000.

In Life Insurance Corporation of India v. Prof. M.D. Shah, the court held that

this freedom is basic and fundamental right of individuals which they acquire

by virtue of birth as human beings, and in a democratic country any attempt

to gag this right except under Art.19 (2) is violation of democracy and Art.19

(1) (a).

68. DIFFERENCE BETWEEN PRIMARY AND SECONDARY EVIDENCE IN

REFERENCE TO ELECTRONIC EVIDENCE.

By bringing all forms of computer evidence into the fold of primary evidence,

the statute has effectually blurred the difference between primary and

secondary forms of evidence. While the difference is still expected to apply

with respect to other forms of documents, an exception has been created with

respect to computers. This, however, is essential, given the complicated

nature of computer evidence in terms of not being easily producible in

tangible form. Thus, while it may make for a good argument to say that if the

word document is the original then a print out of the same should be treated

as secondary evidence, it should be considered that producing a word

document in court without the aid of print outs or CDs is not just difficult, but

quite impossible.

69. Lacunas in the IT Act 2000 amended by the IT ACT, 200870

1. The interval of amendments to the IT Act, 2000 is not defined.

2. Section related to copyright infringement has not been included in this Act

3. There is no section talking of domain name disputes.

4. The said act is not applicable on the power of attorney, trusts, will, sale of

immovable property.

5. The said act remains silent on taxation issue.

6. There are no explicit provision for payment of stamp duty on electronic

documents.

7. The act remains silent on jurisdiction of police station in case of a cyber

crime.

8. The act gives too much of powers in the hands of government and to

police.

70. REVIEW

New multimedia technology and internet have become part our daily life in

contemporary society and have made life easier, quicker and cheaper.

Computers are not only useful for communication and information processing

but also useful for typing, editing, drawing, copying, printing, musical

70
Available at www.prasantmali.com visited on 23/04/2016.
purposes, microwave, door keys, remote car driving, to use as remote

control, in the form of wireless, mobile phone and so on with ever increasing

utility around human society. Such tremendous utility of Information and

Communication Technology (ICT) encouraged the terrorists and other

deviants in society to use it sometimes as their tool and sometimes as targets

to fulfill their ends.

Cyber terrorism is a kind of cyber threat using new technology. It is national

as well as international challenge. Warfare is one way of cyber terrorism by

which one nation attacks other nations through information way (I-way). That

may be called as net war. International terrorists attack using websites and

controlling network i.e., A1-Qaida’a websites http://www.mojahedoon.net

which has link with Osama Bin Laden, attack on Indian Parliament on 13th

December, 2001 by making false gate pass from internet, 11th September,

2001 attack on WTO and Pentagon controlling network of airway, 16th

December, 2005 e-mail threat to attack Indian Parliament and US consulate

are examples of cyber terrorism in India. Internet becomes away to engage in

War. That is why cyber war or net war may be called War in the Information

Way or I-Way. Taiwan against China, Israel against Palestine, India against

Pakistan, China against the USA and so on are some

example of Cyber war in I-Way or Superhighway.

For prevention and control of cyber terrorism the national internet security

standards must be strong and of world standard. Especially the Government

agencies must choose LAN (Local Area Network) for internal communications
and they must adopt their own secret and confidential fiber method about

their activities to fight against virus, worm, denial of service attack, attack

hacking in net ways which are possible tools and modes of cyber terrorism.

Other most important techniques required to prevent and control attack by

terrorists in cyberspace is regular updating of antivirus software, changing

passwords and updating of operating system.

Very important need of the day is awareness, information technology

education and training among people who use net and government agencies

and even who use non-governmental computer system.The IT Act, 2000

indirectly prohibits cyber terrorism. But in this regard we need specific and

clear law with specific definition of cyber terrorism, legal provisions with

specific punishments keeping International and jurisdictional aspects in mind

in the era of Global communication convergence and mobile technology.

71. ‘Conclusions and Suggestions’

addresses the conclusions and suggestions arrived at as a result of the

discussions in the previous chapters. An attempt has been made to point out

the shortcomings and lacunae in the cyber laws and to suggest remedial

measures to ensure effective prevention and control of the cyber crimes.

Based on the study following suggestions are recommended:

1. Net Security be tightened up

2. Use of Encryption Technology

3. Intrusion Management
4. False E-mail identity registration be treated as an offence

5. Self-regulation by Computer and Net Users

6. Liberalization of Law relating to Search and Seizure

7. Use of Voice-recognizer, Filter Software and Caller ID for Protection

against Unauthorized Access

8. Development of Cyber Forensics and Biometric Techniques

9. Need to establish a Computer Crime Research and Development Centre.

10. Need for a Universal Legal Regulatory Mechanism

11. Global Code of Digital Law for resolving Intellectual Property Rights

related disputes

12. Need for Universalization of Cyber Law

13. Interpol and Emergency Response Computer Security Team

14. Combating the Menace of Cyber Terrorism

15. Special Cyber Crime Investigation Cell for Hi-Tech Crimes

16. E-Judiciary and Video-Conferencing for Speedy Justice

17. Need for Cyber Crime Reporter or Cyber Law Journal

18. The Information Technology (Amendment) Act, 2008 – A Step in the right

direction

19. Digital Time Stamping System (DTS)

20. Extradition Treaty: Need of the Hour

21. Establishment of Special Cyber Courts to try Cyber Crimes

22. Diffusion of Internet Technology in India

23. Technical Means for Blocking of Errant Websites

24. Planting of Baits in Cyberspace for Worms and Viruses

25. Regulation of Social Networking Sites

26. Decentralization of the National Informatics Centre

27. Appointments under the IT Act, 2000: Fair, Transparent and

Speedy
28. Need for Increased Awareness among Victims of Cyber
Crimes
29. Need for Imparting Training to Officials to Investigate Cyber
Crimes
30. Need for connecting Cyber Cafes with Police Control Rooms

31. Periodical reviewing of licenses of Internet Service Providers

(ISPs)

32. Need for Development of Anti-hijacking Software

33. Encouragement of Cyber Crime Victims to Lodge Complaints

34. Need for Modernization of Existing Laws and Enactment of

New Laws

35. Implementation of the Recommendations of Malimath

Committee on Reforms in the Criminal Justice System

36. Computer and Cyber crime: Education and Awareness

There is a need for International initiatives to prevent and control net-warfare.

Also there is need to improve infrastructure of law enforcing agencies with

speedy development of new multimedia technology.

Cyber cafes, ISPs and industries must adopt Bio-metric technologies to

prevent cyber crime. It will recognize and record voice, authenticate personal

identifications, record fingerprint, finger and hand geometry, record signature

verification for e.g. how much time one takes for signature, keystroke, typing

and like; record facial features, iris scan i.e. the colored part of eyes and

retinal scan, DNA identification, brainwave, ear pattern and like.355

In 2004, the Karnataka State Government passed law requiring cyber cafe

patrons to provide proof of identity and other detail information such as name,

age, address etc. before use of internet.

There is a great need for establishment of electronic courts and electronic

learning process for people in India to prevent and control cyber crimes.

72. TIPS FOR SECURING CELL PHONES

one software.

rtaining strangers on social networking website.

-tagging feature on your phone.

ng and shopping online, ensure the sites are

your personal

73. IMPORTANT WEBSITES & ADDRESSES

http://deity.gov.in/ - Department of Electronics and Information Technology,

Govt. of India

http://cybercellmumbai.gov.in/ - Cyber crime investigation cell

http://ncrb.gov.in/ - National Crime Records Bureau

http://catindia.gov.in/Default.aspx - Cyber Appellate Tribunal

http://www.cert-in.org.in/ - Indian Computer Emergency Response Team

http://cca.gov.in/rw/pages/index.en.do - Controller of Certifying Authorities

www.safescrypt.com - Safescrypt

www.nic.in – National Informatics Centre

www.idrbtca.org.in - IDRBT

www.tcs-ca.tcs.co.in - TCS

www.mtnltrustline.com - MTNL

www.ncodesolutions.com - GNFC

www.e-Mudhra.com - e-Mudhra

Controller of Certifying Authorities

Electronics Niketan,

6 CGO Complex, Lodhi Road,

New Delhi – 110003

FAX : 91-011-24369578

info@cca.gov.in

Cyber Appellate Tribunal,

Ministry of Communications and Information Technology,

Department of Information Technology,

Jeevan Bharti (L.I.C.) Building, Ground Floor,

Outer Circle, Connaught Place,111

New Delhi – 110001

Tel - 011-23355881

Indian Computer Emergency Response Team (CERT-In)

Department of Information Technology,

Ministry of Communications and Information Technology,

Government of India

Electronics Niketan,

6 CGO Complex, Lodhi Road,

New Delhi – 110003

Tel – 011-24368572
 SCHEDULE-1

Offence - Identity of theft

Sections 66-C and 77-B of IT act 2000 R/w section 419 of IPC
Definition Whosoever fraudulently or dishonestly makes use of electronic
signature , password or any other unique identification of any
other person is known as identity of theft.
Punishment Imprisonment of either description for a term which may extend
to 3 years or with fine which makes 10 lakhs or more.
Nature of As per section 77 B of IT Act 2000 the offence shall be
Offence cognizable and bailable while section 419 of IPC is applied then it
shall be cognizable and bailable and compoundable with the
permission of court before which the prosecution of such offence
is tribe by any magistrate.
Procedure The victim of identity theft can file a complaint in the nearest
police station where the crime has been committed or where he
comes to know about the crime.

Offence - Email Fraud

Sections 66 C and 66 D of IT Act 2000 R/w section 415 and 420 of IPC
Definition Fraud whether financial, banking and social committed with the
aid of an email would be called as email fraud.
Punishment Imprisonment of either description for a term which may extend
to 3 years or with fine which makes 10 lakhs or more.
Nature of As per section 77 B of IT Act 2000 the offence shall be
Offence cognizable and bailable while section 415 of IPC is applied then it
shall be cognizable and bailable and compoundable with the
permission of court before which the prosecution of such offence
is tribe by any magistrate and if section 420 of IPC is applied the
said offence would be cognizable , non cognizable and compound
able with the permission of such offence is pending and triable by
magistrate of first class.
Procedure The victim can file a complaint in the nearest police station where
the crime has been committed or where he comes to know about
the crime.
 Offence - Email Spoofing
Sections 66-D of IT act and section 417,149 and 465 of IPC
Definition It is a technique used by hackers to fraudulently send e mail
messages in which the sender addresses and other parts of email
header are altered to appear as though the email originated from a
source other than actual source.
Punishment Imprisonment of either description for a term which may extend
to 3 years or with fine which makes 10 lakhs or more.
Nature of As per section 77 B of IT Act 2000 the offence shall be
Offence cognizable and bailable while section 417 of IPC is applied then it
shall be cognizable and bailable and compoundable with the
permission of court before which the prosecution of such offence
is tribe by any magistrate and if section 420 of IPC is applied the
said offence would be cognizable , non cognizable and compound
able with the permission of such offence is pending and triable by
magistrate.
Procedure The victim of identity theft can file a complaint in the nearest
police station where the crime has been committed or where he
comes to know about the crime.

Offences - Pornography
Sections Section 67- A of the IT Act, 2000.
Definition Whosoever publishes or transmits or causes to be published or
transmitted in the electronic form any material which contains
sexually explicit act or conduct can be termed as pornography.
Punishment Punishable on first conviction with imprisonment for a term
which may extend to 5 years and with fine which may extend to
10 lakhs and on second conviction with imprisonment for a term
which may extend to 7 years with fine which may extend to 10
lakhs.
Nature of Under section 67 A of IT Act 2000 the offence is cognizable and
Offence non bailable while if section 292/293/294 of IPC is applied then
it will be cognizable and bailable and compoundable by the
person defamed/ in dimidiated and triable by any magistrate but if
section 509 of IPC is applied it will be cognizable bailable ,
compoundable by the women whom it was indented to insult.
Procedure The victim of identity theft can file a complaint in the nearest
police station where the crime has been committed or where he
comes to know about the crime.
 Offences - Child Pornography
Sections Section 67- B of the IT Act, 2000.
Definition It refers to images of films (also known as child abuse images)
and in some more cases writings depicting sexually explicit
activities involving a child as such child pornography is record of
child sexual abuse.
Punishment Punishable on first conviction with imprisonment for a term
which may extend to 5 years and with fine which may extend to
10 lakhs and on second conviction with imprisonment for a term
which may extend to 7 years with fine which may extend to 10
lakhs.
Nature of Under section 67 B of IT Act 2000 the offence is cognizable and
Offence non bailable while if section 292/293/294 of IPC is applied then
it will be cognizable and bailable and non- compoundable and
triable by aby magistrate. If section 500 and 506 of IPC is applied
it will be non- cognizable bailable , compoundable by the person
defamed and intimated and is triable by nay magistrate. If section
509 is applied it will be cognizable bailable , compoundable by
the women whom it was indented to insult.

Offences - Hacking
Sections Section 43(a) of the IT Act read with section 66is applicable .
Section 379, 405 and 420 of IPC is also applicable.
Definition It means unauthorized attempts to bypass the e security
mechanisms of an information system or network.
Nature of Offence is cognizable and bailable and compoundable with the
Offence permission of the Court before which the prosecution of such
offence is pending and triable by any magistrate.

Offences - Data Theft

Sections Section 43(b) of the IT Act read with section 66. Section 66,
section 379 and 406 of IPC are applicable.
Definition It means unauthorized attempts to bypass the e security
mechanisms of an information system or network.
Punishment Offence is punishable with imprisonment which may extend to 3
years or with fine which may extend to 5 lakhs or both.
Nature of Offence is cognizable and bailable and compondable with the
Offence permission of the Court before which the prosecution of such
offence is pending and triable by any magistrate.
 THE INFORMATION TECHNOLOGY ACT,2000 AT A GLANCE

SCHEDULE -2

SECTION OFFENCES PENALTIES

Sec-43 Damages to computer system etc. Compensation of rupees 1 crore.
Sec-66 Hacking (with intent or knowledge) Fine of 2 lakhs rupees and
imprisonment for 3 years.
Sec-67 Publication of obscene material in e-form Fine of 1 lakhs rupees and
imprisonment of 5 years with double
conviction on second offence
Sec-68 Non Compliance with the direction of Fine upto 2 lakhs rupees and
controller imprisonment for 3 years
Sec-70 Attempting or securing access to computer Imprisonment upto 10 years
Sec-72 For breaking confidentiality of the Fine upto 1 lakh and imprisonment upto
information of computer 2 years
Sec-73 Publishing false digital signature , false in Fine upto 1 lakh and imprisonment upto
certain particulars 2 years
Sec-74 Publication of digital signature for Imprisonment for a term of 2 years and
fraudulent purpose. fine for 1 lakh rupees.
 SCHEDULE-3

SUBSEQUENT DEVELOPMENTS ARE LISTED BELOW IN THE TABLE:-

1. Information Technology These rules prescribe the eligibility ,
(Certifying Authorites) Rules , 2000. appointment and working of Certifying
Authorities (CA). These rules also lay down
the technical standards, procedures and
security methods used by CA.
2. Cyber Regulation Appellate Tribunal These rules prescribe the appointment and
(Procedure) Rules, 2000. working of the Cyber Regulation Appellate
Tribunal (CRAT) whose primary role was to
hear appeals against orders of the
Adjudicating Officers.
3. Information Technology They provide further technical standards and
(Certifying authorities) Regulations, 2001. procedures ro be used by CA. Two impotant
guidelines relating to case were issued. the
first are guidelines relating to case were
issued. The first are guidelines for
submission of application for licence to
operate as a Certifying Authorities under IT
Act.
4. Negotiable Instruments The IT Act was amended by the Negotiable
(Amendments and Miscellaneous Provisions) Instrument (Amendments and Miscellaneous
Act , 2002. Provisions) Act, 2002. This introduced the
concept of electronic cheques and truncated
cheques.

5. Information Technology These rules prescribe the qualification

(Qualification and experience of
Adjusting Officers an Manner
of Holding Enquiry)Rules, 2003.
6. Information Technology
(Use of Electronic
Records and Digital Signature)Rules 2004.
requires for Adjusting Officers. Their chief
responsibility under the IT Act is to
adjudicate on cases such as unauthorized
access, unauthorized coping of dara , spread
of viruses, denial of services attacks,
disruption of computers, computer
manipulation etc. These rules also prescribe
the manner and mode of inquiry adjudication
by these officers.
They prescribe provision relating to secure
digital signature and secure electronic
records.
 Recent Amendments as introduced by the IT Amendment Act,
2008 are contained in the following table.

SCHEDULE-4

Serial Content of the Section

Section
No.
1. 43A Compensation for failure to protect data.
2. 66 Computer related offences
Punishment for sending offencive message through communication services,
3. 66A
etc.
Punishment for dishonesty receiving stolen computer resource or
4. 66B
communication device.
5. 66C Punishment for identity theft
6. 66D Punishment for cheating by personating by using computer resources.
7. 66E Punishment for violation of privacy
8. 66F Punishment for cyber terrorism
Punishment for publishing or transmitting of obscene material in electronic
9. 67
form
Punishment for Publishing or transmitting of material containing sexually
10. 67A
explicit act, etc in electronic form
Punishment for publishing or transmitting of material containing sexually
11. 67B
explicit act, etc in electronic form
12. 67C Preservation and retention of Information by intermediaries
Powers to issue direction for interception or monitoring or decryption of any
13. 69
information any computer sources
Powers to issue direction for blocking for public access of any information
14. 69A
through any computer resources.
Powers to authorize to monitor and collect traffic data or information through
15. 69B
any computer resources for cyber security.
16. 72A Punishment for discloser of information in breach of lawful contract.
17. 79 Exception from liability of intermediary in certain cases.
18. 84A Modes or methods for encryption.
19. 84B Punishment for abetment of offences.
20. 84C Punishment for attempt to commit offences.
 OFFENCES AND PENALTIES
SCHEDULE-5
SR SECTION OFFENCES PUNISHMENT BAIL ABILITY &
NO. CONGIZABILITY
1 Section-65 Tampering with Computer Imprisonment upto 3 years Offence is Bailable,
Source Code or fine upto Rs. 2 lacks Cognizable and triable
by Court of JMFC.
2 Section-66 Computer related Offences Imprisonment upto 3 years Offence is Bailable,
or fine upto Rs. 5 lacks Cognizable and triable
by Court of JMFC.
3 Section-66-A Sending Offencive massage Imprisonment upto 3 year Offence is Bailable,
through Communication and fine Cognizable and triable
service etc... by Court of JMFC.
4 Section-66-B Dishonestly receiving Imprisonment upto 3 year Offence is Bailable,
stolen computer resource or and/or fine upto 1 lack Cognizable and triable
communication device by Court of JMFC.
5 Section-66-C Identity Theft Imprisonment of either Offence is Bailable,
description upto 3 years Cognizable and triable
and/or fine upto 1 lack by Court of JMFC.
6 Section-66-D Cheating by personation by Imprisonment of either Offence is Bailable,
using computer resource description upto 3 years Cognizable and triable
and/or fine upto 1 lack by Court of JMFC.
7 Section-66-E Violation of Privacy Imprisonment upto 3 year Offence is Bailable,
and/or fine upto 1 lacks Cognizable and triable
by Court of JMFC.
8 Section-66-F Cyber Terrorism Imprisonment extend to Offence is Non-Bailable,
imprisonment for Life Cognizable and triable
by Court of Sessions.
9 Section-67 Publishing or transmitting On first Conviction Offence is Bailable,
obscene material in Imprisonment upto 3 years Cognizable and triable
electronic form and/or fine upto Rs. 5 lakh by Court of JMFC.
On Subsequent conviction
Imprisonment upto 5 years
and/or fine upto Rs. 10 lakh

10 Section-67A Publishing or transmitting On first Conviction Offence is Non-

material containing sexually Imprisonment upto 5 years Bailable, Cognizable and
explicit act, etc...in and/or fine upto Rs. 10 triable by Court of
electronic form. lakh JMFC.

On Subsequent conviction
Imprisonment upto 7 years
and/or fine upto Rs. 10 lakh
 OFFENCES AND PENALTIES

11 Section-67-B Publishing or transmitting On first Conviction Offence is Non-

material depicting children Imprisonment upto 5 years Bailable, Cognizable and
in sexually explicit act, and/or fine upto Rs. 10 triable by Court of
ect...in electronic form. lakh JMFC.

On Subsequent conviction
Imprisonment upto 7 years
and/or fine upto Rs. 10 lakh

12 Section-67-C Intermediary intentionally Imprisonment upto 3 years Offence is Bailable and

or knowingly contravening and fine Cognizable.
the direction about
Preservation and retention
of information
13 Section-68 Failure to comply with the Imprisonment upto 2 years Offence is Bailable and
direction given by and/or fine upto Rs. 1 Non-Cognizable.
Controller lacks

14 Section-69 Failure to assist the agency Imprisonment upto 7 years Offence is Non-Bailable
referred to in sub section and fine and Cognizable.
(3) in regard interception or
monitoring or decryption of
any information computer
source
15 Section-69-A Failure of the intermediary Imprisonment upto 7 years Offence is Non-Bailable
to comply with the direction and fine and Cognizable.
issued or blocking for
public access of any
information through any
computer resource
16 Section-69-B Intermediaries who Imprisonment upto 3 years Offence is Bailable and
intentionally or knowingly and fine Cognizable.
contravenes the provisions
of sub-section (2) in regard
monitor and collect traffic
data or information through
any computer resource for
cyber security.
 OFFENCES AND PENALTIES

17 Section-70 Any person who secures Imprisonment of either Offence is Non-Bailable

acess to the protected description upto 10 years and Cognizable.
system in contravention of and fine.
provision of Sec.70

Indian Computer
Emergency Response Team
to serve as national agency
for incident response.
18 Section-70-B Any service provider , Imprisonment upto 1 year Offence is Bailable and
intermediaries , data centers and / or fine upto 1 lack Non- Cognizable.
etc... who fails to prove the
information called for or
comply with the direction
issued by the ICERT.
19 Section - 71 Misrepresentation to the Imprisonment upto 2 years Offence is Bailable and
Controller to the Certifying and/or fine upto Rs. 1 Non- Cognizable.
Authority lacks

20 Section - 72 Breach of Confidentiality Imprisonment upto 2 years Offence is Bailable and

and privacy and/or fine upto Rs. 1 Non- Cognizable.
lacks

21 Section -72-A Disclosure of information Imprisonment upto 3 years Offence is Bailable and-
in breach of lawful contract and/or fine upto Rs. Cognizable.
5lacks

22 Section - 73 Publishing electric Imprisonment upto 2years Offence is Bailable

Signature Certificate false and/or fine upto Rs. andNon-Cognizable.
in certain particulars 1lacks

23 Section - 74 Publication for fraudulent Imprisonment upto 2 years Offence is Bailable and
purpose and/or fine upto Rs. 1 Non- Cognizable.
lacks
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