Cyber Crimes- Low conviction rate
The growth of the Internet and ecommerce has been phenomenal, so is the growth of the cyber crimes. Computers today are being misused for illegal activities like hacking, credit card fraud, transmitting obscene message or photos, spamâ€™s, software piracy etc; criminal activities in the cyberspace are on the rise. With the ubiquitous nature of the Internet, cyber crime is an ever-evolving threat. As the cases of cybercrime grow, need was felt to devise a mechanism to check the growth cyber crime incidents.
First letâ€™s see what we mean by cyber crime. The Cambridge dictionary defines Cyber Crimes as crimes committed with the use of computers or relating to computers, especially through the internet. The most acceptable definition of cyber crime is â€œCyber offence or crime is an unlawful act in which the computer is either a tool or a target or both.â€
IT Act, 2000 to deal with cyber crimes
The Information Technology Act, 2000 introduced on the statute book on 17th October, 2000 is the Indiaâ€™s only cyber law. The Information Technology Act, 2000 specifies the acts which have been made punishable. So, the offences relating to Information Technology, as mentioned under the IT Act, 2000 may be classified as follows:-
vÂ Â Â Â Source code attacks;
vÂ Â Â Â Hacking;
vÂ Â Â Â Obscenity;
vÂ Â Â Â Failure to comply with Controllerâ€™s directions;
vÂ Â Â Â Subscriberâ€™s failure to comply with Controllerâ€™s requirement for decryption;
vÂ Â Â Â Accessing designated protected systems;
vÂ Â Â Â Misrepresentation to the Controller;
vÂ Â Â Â Breach of confidentiality or privacy;
vÂ Â Â Â Publishing False Digital Signature Certificate;
vÂ Â Â Â Making available Digital Signature for fraudulent purposes
There are certain other offences which are not punishable under the IT Act, 2000 yet they can be brought into the ambit of cyber crime and are punishable under the Indian Penal Code:
vÂ Â Â Â Mischief â€“ 425/426 IPC
vÂ Â Â Â Criminal Trespass â€“ 441/447 IPC
vÂ Â Â Â Defamation â€“ 415/420 IPC
vÂ Â Â Â Cheating â€“ 415/420 IPC
vÂ Â Â Â Criminal Intimidation â€“ 503,505, 506 IPC
vÂ Â Â Â Theft â€“ 378/379 IPC
Growth in cyber crime cases in India:
The number of cases of cyber-crime and Internet fraud has been rising since 2008 in alarming proportion, which is shocking enough, more so when the statistics don’t take into account the number of unreported cases[i]. With the economic recession in full swing, the numbers of cases are only expected to rise more quickly.Â Cyber-crime is one of the fastest growing crime segments[ii]. It’s growing because it’s easy to perpetrate, difficult for law enforcement to police and also difficult to get convictions. It’s a type of crime that is low in risk and high in payback.Â The conviction rate for cyber-criminals in India is pitiable as conviction has happened only in four cases so far. This abysmal rate of conviction has marred the cause of fighting cybercrime in India.
The State of Tamil Nadu Vs Suhas Katti -First Cyber Crime Conviction Case:
The Case of The State of Tamil Nadu Vs Suhas Katti is unique owing to the fact that the conviction was achieved successfully within a short span of 7 months from the filing of the FIR. Considering the history of similar cases pending long and tedious trial, the efficient handling of the case which became the first case of successful cyber crime conviction deserves special mention.
The case related to posting of obscene, defamatory and annoying message about a divorcee womanÂ 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,Â the Police traced the accused to Mumbai and arrested him within the next few days.Â The accused was a known family friend of the victim and was reportedly interested in marryingÂ her. She however married another person. ThisÂ 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 the Internet.
On 24-3-2004 Charge Sheet was filed u/s 67 of IT Act 2000, 469 and 509 IPC before The Honâ€™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.Â On the prosecution side 12 witnesses were examined and entire documents were marked.Â Â
The Defence argued that the offending mails would have been given either by ex-husband of the complainant or the complainant her self to implicate the 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 65 B of the Indian Evidence Act.Â However, the court based on the expert witness and other evidence produced including the witness of the Cyber Cafe owners came to the conclusion that the crime was conclusively proved.
The court has also heldÂ that because of the meticulousÂ investigation carried on by the IO, the origination of the obscene message was traced out and the real culprit has been brought before the court of law.Â
Honourable Sri.Arulraj, Additional Chief Metropolitan Magistrate, Egmore, delivered the judgement on 5-11-04 as follows:
Â Â â€œ 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 2000Â to undergo RI for 2 years and to pay fine of Rs.4000/-Â All sentences to run concurrently.â€
Low conviction rate in cyber crime cases-Why?
The aforesaid case of Suhas Katty shows the wonderful investigation done by the investigating agency which shows the efficient management of cyber forensic evidence which resulted in the successful cyber conviction. But same is not true of other cases where the police deals with the cyber crime cases very lightly as in most of the cases they consider the Internet crime as a â€˜white-collarâ€™ crime and the perpetrators are treated as people with errant behaviour rather than as criminals. The Law enforcement agencies are not well-equipped and oriented about cyber crime yet. In criminal justice system, investigation into the crime and collection of evidence is of little consequence unless the prosecution is able to secure conviction of the accused. If the investigating agency is unable to get the accused convicted by the court, it has a damaging impact on the investigating agency and it creates suspicion about the motive and capability of the investigating agency[iii]. There is an immense need for training to the law enforcement officials, and we need to have special dedicated cyber crime cells apart from few major cities where such cyber crime cells have presence. There is also a need for IT-savvy lawyers and judges, as well as training for government agencies and professionals in computer forensics. â€œWe need to ensure that we have specialized procedures for prosecution of cybercrime cases so as to tackle them on a priority basis. This is necessary so as to win the faith of the people in the ability of the system to tackle cybercrime. We must ensure that our system provides for stringent punishment of cybercrimes and cyber criminals so that the same acts as a deterrent for others.â€[iv]
The conviction of the Information Technology Crimes which involves technology in committing the crime also needs technology for its efficient investigation and collection of evidence which is crucial in proving the case against the accused and get him convicted.
The need for Cyber Forensics in successful conviction:
Computer Forensics is a new area of science in which we have made very little progress. â€œComputer Forensics deals with the preservation, identification, extraction and documentation of computer evidence.â€ In general, computer forensics is related to evidence from or about computers that is destined for use in court. Most of the cases end up in acquittal of accused owing to the traditional forensic methods employed in the investigation of the cyber crime. The traditional procedural mechanisms, including the forensic science methods, are neither applicable nor appropriate for this situation. The traditional forensic methods like finger prints, DNA testing etc. play a limited role in cyber crime situation. The traditional methods of investigation adopted by the police in crime investigations did not prove so fruitful in attaining the required conviction rate[v]. Thus, cyber forensics is the need of hour where the computer examiner will be the percipient witness. However, there is abysmal lack of quality cyber forensics experts in India. The use of Internet has changed the entire dynamics of crime, criminal and their prosecution. The internet is boundary less and that makes the investigation and conviction very difficult[vi]. These objects of criminal law can be addressed only if we have an efficient cyber forensics system in place otherwise it will seriously hamper the prosecution of cyber crime cases in near future
[i] A recent survey indicates that for every 500 cybercrime incidents that take place, only 50 are reported to the police and out of that only one is actually registered.
[ii] As per the NCRB report, the number of cyber crimes registered under the IT Act in 2007 was 217, as against 142 in 2006, an increase of 52.8 per cent. The cases of cyber pornography leads the list with 99 cases, which is nearly 46 per cent of the total cases, registered.Â In 2006 it was 69. Hacking with computer system comes second with 76 cases, which includes loss/damage to computer resource/utility (30) as well as hacking (46). Apart from the cases registered under IT Act, 339 cases were recorded under IPC in 2007 compared to 311 cases in 2006. A total of 429 persons were arrested in the country for Cyber Crimes under IPC during 2007.
[iii] Quoted from the Article â€œNeed for an Overhaul in Investigation and Prosecution of Cyber Crimes in Indiaâ€ by Mr. Barun Kumar Sahu.
[iv] Honâ€™ble Distt. & Sessions Judge, Delhi, Mr. Talwant Singh in his article â€œCYBER LAW & INFORMATION TECHNOLOGYâ€.
[v] Quoted from Article titled â€œCrime Conviction Imbalance and the use of Forensic Science Evidenceâ€ by Dr. J.R. Gaur, published in the Indian Police Journal, July-September, 2005.
[vi] â€œSecuring conviction in cyber crime is not easy and straightforward. An accused may be hanged based on the printout of reports generated by the electronic devices. In some cyber crimes, all the evidences may be electronic evidence without any documentary evidence or human witness. Of course, the computer forensic examiner will be the percipient witness. The defendant is bound to question the admissibility, reliability and authenticity of the electronic evidences. The forensic examiner must be able to convince the courts about the admissibility, authenticity and reliability of the electronic evidence, and that the evidence has not been tempered with.â€ Mr. Barun Kumar Sahu in his article â€œNeed for an Overhaul in Investigation and Prosecution of Cyber Crimes in Indiaâ€