1. Cyber Crimes, Cyber Investigation and Cyber Evidence
Presentation by
DR. JUSTICE G.C.BHARUKA
Former Judge
High Courts of Patna & Karnataka

2. What is a cyber crime?
Includes a variety of civil (tort), quasi-criminal or criminal wrongs, concerning activities, or issues relating to or having connection to computers.
For example, virus attack, internet hours theft, online investment fraud, denial of service, cyber pornography, etc.
These unlawful activities are covered under the IT Act either as offenses liable to imprisonment/fine/ confiscation or as unlawful activities liable for penalty/compensation.
© Dr. Justice G.C.Bharuka

3. Penalties and Offences under the Information Technology Act, 2000

4. Chapter XI of the IT Act OFFENCES
Sections 65 to 74 are the penal provisions.
Provides for fine and/or imprisonment ranging from 2 years to 10 and/or confiscation.
To be tried by the regular criminal courts under the Code of Criminal Procedure, 1973 [Sec. 4(2)]
© Dr. Justice G.C.Bharuka

5. Sec. 65 Tampering with Computer Source Code
Offence: Knowingly or intentionally concealing, destroying, altering or causing another to do so any computer resource code when the same is required to be kept or maintained by law.
Punishment: Imprisonment up to 3 years or fine up to Rs. 2 lakhs or both
Explanation: ‘Computer source code’ means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.
© Dr. Justice G.C.Bharuka

6. Sec. 66 Hacking with Computer System
Under the Act: Covers following in relation to information1:
Destruction
Deletion
Alteration
Diminishing the value
Diminishing the utility
Affecting injuriously
With an intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person
Punishment: Imprisonment upto 3 years, or fine upto Rs. 2 lakh or both
1. Section 2(v). “Information” includes data, text, images, sound, voice, codes, computer programmes, software and data bases or micro film or computer generated micro fiche.
© Dr. Justice G.C.Bharuka

7. Sec. 67 Publishing of information which is obscene in electronic form
Offence: Publishing, transmitting and causing to be published, porn in electronic form (for example, on websites).
Punishment: On first conviction, up to 5 years imprisonment and fine up to Rs 1 lakh and on subsequent convictions, imprisonment up to 10 years and fine up to Rs 2 lakh.
© Dr. Justice G.C.Bharuka

8. Sec. 68 Power of Controller to give Directions
Controller’s power: To direct Certifying Authority or its employee to
Take measures
Cease to carry on activities
so as to ensure compliance with the IT Act/Rules
Offence: Failure to comply with the orders of the Controller
Punishment: Imprisonment up to 3 years and fine up to Rs 2 lakh
© Dr. Justice G.C.Bharuka

9. Sec. 69 Decryption of information
Controller’s power: To direct any agency to intercept any information transmitted through any computer resource on the ground of:
Sovereignty or security or integrity of India
Friendly relations with foreign States
Public order
Prevent incitement to the commission of any cognizable offence
Offence: Failure to provide facilities and technical assistance to decrypt the information.
Punishment: Imprisonment up to 7 years.
© Dr. Justice G.C.Bharuka

10. Sec. 69: Decryption of information (cont.)
Usage of Sec. 69 in cyber inquiry:
The Controller can direct any agency of the Government (for example, the NIC) to intercept the information.
Such information, if in encrypted form, can be decrypted by making use of services of any person or subscriber.
Section 69 likely to be used for following:
Encrypted messages
Steganographic images and video files
Password protected files
© Dr. Justice G.C.Bharuka

11. Sec. 70 Protected System ‘Protected System’
Govt. has to declare, by notification, that a computer system is ‘protected system’.
Govt. can, by order, authorize persons who will have access to the ‘protected system’.
For example, declaring a computer system containing defense secrets as a ‘protected system’.
Offence: Securing unauthorized access or attempting to secure unauthorized access to a protected system.
Punishment: Imprisonment up to 10 years and fine.
© Dr. Justice G.C.Bharuka

12. Sec. 71 Misrepresentation
Offence: Misrepresenting or suppressing material fact from the:
Controller for obtaining any license
Certifying Authority for obtaining any Digital Signature Certificate
Punishment: Imprisonment up to 2 years or fine up to Rs. 1 lakh or both
© Dr. Justice G.C.Bharuka

13. Sec. 72 Breach of Confidentiality and Privacy
Offence: Disclosure of information obtained pursuant to the powers conferred under this Act, rules or regulations without the consent of the person concerned.
Punishment: Imprisonment up to 2 years or fine up to Rs. 1 lakh or both.
© Dr. Justice G.C.Bharuka

14. Sec. 73 Publishing of Digital Signature Certificate False in Certain Particulars
Offence: Pulishing a Digital Signature Certificate with knowledge that:
Certifying Authority listed in the Certificate has not issued it; or
Subscriber listed in the Certificate has not accepted it; or
Certificate has been revoked or suspended unless such publication is for the purpose of verifying a digital signature created prior to such suspension or revocation
Punishment: Imprisonment up to 2 years or fine up to Rs. 1 lakh or both
© Dr. Justice G.C.Bharuka

15. Sec. 74 Publication for fraudulent Purpose
Offence: Creating, publishing or making available Digital Signature Certificate for fraudulent or unlawful purpose
Punishment: Imprisonment up to 2 years or fine up to Rs. 1 lakh or both
© Dr. Justice G.C.Bharuka

16. Compensation & Penalties
Ss. 43 & 45 provides for compensation and penalties for various unlawful acts
Ss. 46 & 47 deal with adjudicating officer and his powers
Ss. 48 to 61 deal with Cyber Regulations Appellate Tribunal (composition, powers, procedure, etc.)
S. 62 provides for appeal to the High Court
S. 63 permits compounding of contraventions
S. 64 provides for recovery of penalty
© Dr. Justice G.C.Bharuka

17. Sec. 43 Penalty for damage to computer
Without permission of the owner or any other person who is in charge of the computer, doing the following:
Unauthorised access (hacking)
Downloading, copying or extracting data, computer data base or information (cyber theft)
Introduction of computer virus [Explanation (iii)]
Damaging computer system, network, data, computer data base or any other programme
Disrupting computer
Denying access to person authorised to access any computer
Assisting any person to facilitate access to a computer in contravention of the provisions of the Act
Charging the services availed of by a person to the account of another by tampering with or manipulating any computer
Penalty: Damages up to 1 crore
© Dr. Justice G.C.Bharuka

18. Section 44 Failure to furnish information, return, etc.
Failure to furnish document, return or report to Controller or Certifying Authority (penalty up to Rs. 1.5 lakh)
Failure to file return or furnish information within the specified time (penalty up to Rs per day during which such failure continues)
Failure to maintain books of accounts or records (penalty of Rs. 10,000 per day during which the failure continues)
© Dr. Justice G.C.Bharuka

19. Section 45 Residuary Penalty
Contravention of any rules or regulations made under the IT Act for which no penalty has been separately provided
Penalty: Compensation upto Rs. 25,000 to the person affected by such contravention or penalty upto Rs. 25,000.
© Dr. Justice G.C.Bharuka

20. Provisions relating to Adjudication for Civil and Quasi-Criminal wrongs set out under Chapter IX
Sec. 46: Adjudication to be done Adjudicating Officer.
Sec. 57: Appeal against the Adjudicating Officer’s order lies to Cyber Regulation Appellate Tribunal.
Sec. 62: Second Appeal against the order of the Tribunal lies to the High Court.
Sec. 61: Civil court’s jurisdiction has been completely excluded.
© Dr. Justice G.C.Bharuka

21. Provisions relating to Investigation and Trial of Offences under Chapter XI
Offences under the IT Act are to be investigated and tried in accordance with the provisions contained in Code of Criminal Procedure, 1973 [see Sec. 4(2), Cr.P.C. & Sec. 80(3) of IT Act] only with the exceptions that:
Investigation cannot be done by a police officer below the rank of Deputy Superintendent of Police (Sec. 78, IT Act).
Any police officer, not below the rank of Deputy Superintendent of Police, or any other officer authorised by Central or State Government, may enter a public place or search or arrest any person without warrant (Sec. 80).
© Dr. Justice G.C.Bharuka

22. Double Jeopardy
Sec. 77. Penalty or confiscation not to interfere with other punishments – No penalty imposed or confiscation made under this Act shall prevent the imposition of any other punishment to which the person affected thereby is liable under any other law for the time being in force.
The provision does not offend Art. 20(2) of the Constitution of India. [see Director of Enforcement v. M.C.T.M. Corporation Pvt. Ltd., (1996) 2 SCC 471]
© Dr. Justice G.C.Bharuka

23. Offences under the Indian Penal Code

24. Offences under the Indian Penal Code
Electronic records (Sec. 29A) – shall have the same meaning as in Sec. 2(1)(t) of IT Act.
‘Electronic record’ means data, record, or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. [Sec. 2(1)(t)]
Offences relating to documents, public servants, false evidence, and contempt have been suitably modified to include ‘electronic records’ along with ‘paper documents’.
© Dr. Justice G.C.Bharuka

25. Sec. 167, IPC
Offence: Public servant framing incorrect electronic record with intent to cause injury.
Ingredients:
Public servant in charge of preparation or translation of electronic records.
Knowingly changing electronic record with intent to cause injury.
Punishment: Imprisonment up to 3 years or fine or both
© Dr. Justice G.C.Bharuka

26. Sec. 172, IPC
Offence: Absconding to prevent summons for producing electronic records.
Ingredients:
Summons, notice or order from legally competent authority or Court.
For production of electronic records in Court or before such legal authority.
Punishment: Simple Imprisonment for 6 months or up to Rs. 1,000 or both.
© Dr. Justice G.C.Bharuka

27. Sec. 173, IPC
Offence: Preventing in any manner service of summons to produce electronic record.
Ingredients:
Summons, notice or order from a Court.
For production of electronic record in such record.
Intentionally prevents the serving or lawful affixing or removal of such summons, notice or order.
Punishment: Imprisonment up to 6 months or up to Rs. 1,000 or both .
© Dr. Justice G.C.Bharuka

28. Sec. 175, IPC
Offence: Intentional omission to produce electronic records by person legally bound.
Ingredients:
Person must be legally bound to produce electronic record.
Intentional omission to produce electronic records.
Punishment: Imprisonment up to 6 months or Rs. 1,000 or both.
© Dr. Justice G.C.Bharuka

29. Sec. 192, IPC Offence: Fabricating false evidence. Ingredients:
Making false entry or false statement in electronic record.
Intention must be to produce such electronic record as evidence.
Such an electronic record may cause forming of erroneous opinion by a judicial authority.
Punishment: Imprisonment up to 7 years and fine (under Sec. 193, IPC).
© Dr. Justice G.C.Bharuka

30. Sec. 204, IPC
Destroying electronic record to prevent its production as evidence (S/204)
Ingredients:
Secreting or destroying electronic record.
There must be legal compulsion.
Act must be intentional to prevent production of electronic record as evidence.
Punishment: Imprisonment up to 2 years or fine or both
© Dr. Justice G.C.Bharuka

31. Sec. 463, IPC Offence: Forgery Ingredients:
Existence of a false electronic record.
The intention behind such act must be to:
Cause damage or injury
Support any claim or title
Cause person to part with property
Enter into contract
Commit fraud
Punishment: Imprisonment up to 2 years or fine or both (Sec. 465, IPC).
© Dr. Justice G.C.Bharuka

32. Sec. 464, IPC Offence: Making false electronic record.
Ingredients: Dishonestly or fraudulently,
Making, signing, sealing or executing e-record;
Making or transmitting any e-record;
Affixing digital signature on any e-record;
Making any mark denoting the authenticity of the digital signature;
With intention of causing it to be believed that such act is done by a person by whom the offender knows has not been done.
Altering electronic record without authorization, or,
Causing a person to sign, seal, execute or alter an electronic record who is unaware of contents of electronic records.
© Dr. Justice G.C.Bharuka

33. Sec. 464, IPC (cont.) Explanation 3 inserted
Expression ‘affixing digital signature’ shall have the same meaning as in Sec. 2(1)(d) of IT Act.
‘Affixing digital signature’, with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of digital signature. [Sec. 2(1)(d)]
© Dr. Justice G.C.Bharuka

34. Sec. 466, IPC Offence: Forgery of certain electronic records.
Ingredients:
Forgery essential
Forgery must be of certain kinds of records
Records of Courts, registers of birth, baptism, marriage or burial, register kept by a public servant, certificate or document purporting to be made by a public servant in his official capacity, an authority to institute or defend a suit, power of attorney)
Punishment: Imprisonment up to 7 years and fine.
© Dr. Justice G.C.Bharuka

35. Sec. 466, IPC (cont.) Explanation inserted
‘Register’ includes any list, data or record of any entries maintained in the electronic form as defined in Sec. 2(1)(r) of the IT 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. [Sec. 2(1)(r)]
© Dr. Justice G.C.Bharuka

36. Sec. 468, IPC Offence: Forgery for cheating. Ingredients:
Forging the electronic record.
Forgery must be for cheating.
Punishment: Imprisonment up to 7 years and fine.
© Dr. Justice G.C.Bharuka

37. Sec. 469, IPC
Offence: Forgery of electronic record for for the purpose of harming reputation.
Ingredients:
Forgery
It must harm someone’s reputation.
Punishment: Imprisonment up to 3 years and fine.
© Dr. Justice G.C.Bharuka

38. Sec. 471, IPC Offence: Using forged electronic record. Ingredients:
Using forged electronic record as genuine.
Knowingly uses such forged electronic record.
Sec A false electronic record made wholly or in part by forgery is designated a ‘forged electronic record’.
Punishment: Imprisonment up to 2 years or fine or both (Sec. 465, IPC).
© Dr. Justice G.C.Bharuka

39. Sec. 474, IPC
Offence: Knowingly possessing forged document and intending to use it as genuine.
Ingredients:
Possessing forged electronic record.
Intention is to use it as genuine.
Punishment: Imprisonment up to 7 yrs and fine in case of official records mentioned in Sec. 466.
© Dr. Justice G.C.Bharuka

40. Sec. 476, IPC Offence: Counterfeiting device or mark. Ingredients:
Forging a device or mark upon any electronic record to authenticate the electronic record.
Possessing the device upon which counterfeited.
Intention to use the mark or device as being genuine.
Punishment: Imprisonment up to 7 years and fine.
© Dr. Justice G.C.Bharuka

41. Sec. 477A, IPC Offence: Falsifying accounts. Ingredients:
Willfully destroying or altering electronic record with intent to defraud.
Electronic record in his possession is that of his employer.
Punishment: Imprisonment up to 7 years or fine.
© Dr. Justice G.C.Bharuka

42. Amendments to the Indian Evidence Act

43. Amendments to the Indian Evidence Act
Sec. 3: ‘Evidence’ – Definition has widened to include electronic records produced for the inspection before the Court.
Expressions ‘Certifying Authority’, ‘Digital Signature’, ‘Digital Signature Certificate’, ‘electronic form’, ‘electronic records’, ‘information’, ‘secure electronic record’, ‘secure digital signature’, and ‘subscriber’ have been given the meanings assigned to them in the IT Act.
© Dr. Justice G.C.Bharuka

44. Amendments to the Indian Evidence Act
Sec. 17: ‘Admission’ includes a statement contained in electronic form.
Sec. 22A: Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced produced is in question.
Sec. 34: Entries in the books of accounts, including those maintained in an electronic form, when relevant.
Sec. 35: Relevancy of entries in an electronic record made by a public servant.
© Dr. Justice G.C.Bharuka

45. Amendments to the Indian Evidence Act
Sec. 39: What evidence to be given when the statement forms part of an electronic record.
Sec. 47A: Opinion of the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.
Sec. 59: All facts, except the contents of documents or electronic records, may be proved by oral evidence.
© Dr. Justice G.C.Bharuka

46. Amendments to the Indian Evidence Act
Sec. 65A: Contents of electronic records may be proved in accordance with provisions of Sec. 65B.
Sec. 65B: Admissibility of electronic records
Electronic record deemed to be documents if conditions in this section are satisfied.
Electronic record admissible as evidence as direct evidence even though it may be a ‘computer output’ subject to certain conditions. [Sub-sec. (1)]
© Dr. Justice G.C.Bharuka

47. Sec. 65B Admissibility of electronic records
Sub-sec. 2 – Conditions:
Regular use of computer for substantial period of time.
Nature of information processed must be similar to that was produced.
Proper working of the computer.
Information in electronic record is reproduced or derived in ordinary course.
Computer network deemed to be a single computer. [Sub-sec. (3)]
© Dr. Justice G.C.Bharuka

48. Sec. 65B Admissibility of electronic records
Sub-sec. (4): Certificate by concerned person with respect to identification and origin of electronic record, device from which produced and any other details relating to conditions in sub-sec. (2).
© Dr. Justice G.C.Bharuka

49. Amendments to the Indian Evidence Act
Sec. 67A: Digital signature of a person to be proved unless it is secure digital signature.
Sec. 73A: Digital signature to be verified by the Court by directing:
that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate; or,
any other person to apply the public key listed in the Digital Signature Certificate and verify.
© Dr. Justice G.C.Bharuka

50. Amendments to the Indian Evidence Act
Sec. 81A: Presumption of genuineness of electronic Gazettes and electronic records directed by any law to kept by any person.
Sec. 85A: Court to presume electronic agreement containing digital signatures of the parties was so concluded by affixing the digital signature of the parties.
© Dr. Justice G.C.Bharuka

51. Amendments to the Indian Evidence Act
Sec. 85B (1): Presumption as to electronic records and digital signatures:
Sub-sec.(1): Court to presume integrity of secure electronic record unless contrary is proved.
Sub-sec. (2): Court to presume secure digital signature was affixed by party with intention to sign or approve the electronic record unless contrary is proved.
No other presumption relating to authenticity and integrity of electronic record or digital signature created in this section.
© Dr. Justice G.C.Bharuka

52. Amendments to the Indian Evidence Act
Sec. 85C: Presumption as to Digital Signature Certificate
Court to presume information listed in a Digital Signature Certificate to be correct unless contrary is proved except unverified subscriber information.
© Dr. Justice G.C.Bharuka

53. Amendments to the Indian Evidence Act
Sec. 88A – Presumption as to electronic messages:
Court not to presume sender of the electronic message sent through an electronic mail server to the addressee even though the contents may be presumed.
Sec. 90A: Presumption of electronic records five years old:
Electronic records five years old authenticated by digital signature of a person to be presumed by Court to have been so signed by person purported to have signed it.
© Dr. Justice G.C.Bharuka

54. Amendments to the Indian Evidence Act
Sec. 131: Person not to be compelled to produce electronic record under his control in case the owner of such electronic record is entitled to refuse production unless the owner consents to its production.
© Dr. Justice G.C.Bharuka

55. Bankers’ Books Evidence Act, 1891
Sec. 2(a) – ‘Banker’s books’ to include printouts of data stored in a floppy, disc, tape or any other form of electro-magnetic data storage device.
Sec. 2(8) – ‘Certified copy’ consists of printouts of data stored in a floppy, disc, tape or any other electro-magnetic data storage device, a printout of entry or printout together with statements as per Section 2A.
© Dr. Justice G.C.Bharuka

56. Bankers’ Books Evidence Act, 1891
Sec. 2A – Conditions in the printout:
Certificate that printout is by principal accountant or branch manager.
Certificate by person-in-charge of computer system with description of system:
Safeguards adopted to ensure operation by authorized persons;
Safeguards adopted to prevent & detect unauthorized change of data;
Safeguards adopted to retrieve lost data;
Data transfer procedure;
Mode of data verification;
Mode of identification of data storage devices;
Arrangements for storage and custody of data storage devices;
Safeguards to prevent & detect tampering with the system;
Other factors to vouch integrity and accuracy of the system.
© Dr. Justice G.C.Bharuka

57. Bankers’ Books Evidence Act, 1891
Sec. 2A – Conditions in the printout (cont.):
Certificate from person-incharge of the computer system regarding proper operation of the system at material time, all relevant data has been provided, printout represents or is from the correct data.
© Dr. Justice G.C.Bharuka

58. Reserve Bank of India Act, 1934
Sec 58(2)(pp) – regulation of fund transfer through electronic means between banks and financial institutions including:
Conditions for such transfer;
Manner of such transfer;
Rights and obligations of the participants of such transfer.
© Dr. Justice G.C.Bharuka

59. High Courts of Patna & Karnataka
THANK YOU
Presentation by
DR. JUSTICE G.C.BHARUKA
Former Judge
High Courts of Patna & Karnataka