Cyber Offences : Cyber offences are the unlawful acts which are carried in a very sophisticated manner in which either the computer is the tool or target or both. Cybercrime usually includes:
- Unauthorized access of the computers
- Data diddling
- Virus/worms attack
- Theft of computer system
- Hacking
- Denial of attacks
- Logic bombs
- Trojan attacks
- Internet time theft
- Web jacking
- Email bombing
- Salami attacks
- Physically damaging computer system.
Offenses UNDER THE IT ACT, 2000
Offences can be categorized as follows:
Where computer/server/communication/device is object/target (Section 65, 66, 66F, 70)
Section 65: Tampering with computer source documents:
It provides that Whoever
- knowingly or intentionally
- conceals, destroys or alters or
- knowingly or intentionally
- causes another to conceal,
- destroy or
- alter
- any computer source code used for a computer,
- computer Programme,
- computer system or computer network,
- when the computer source code is required to be kept or maintained by law for the being time in force,
- shall be punishable with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.
Explanation:
For the purpose of this section “computer source code” means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.
Section 65 is tried by any magistrate. This is cognizable and non- bailable offense.
Imprisonment up to 3 years and or Fine up to Two lakh rupees.
CASE LAWS
Frios v. State of Kerela
Facts: In this case, it was declared that the FRIENDS application software as a protected system. The author of the application challenged the notification and the constitutional validity of software under Section 70. The court upheld the validity of both.
It included tampering with source code. Computer source code the electronic form, it can be printed on paper.
Held: The court held that Tampering with Source code is punishable with three years jail and or two lakh rupees fine of rupees two lakh rupees for altering, concealing and destroying the source code.
Syed Asifuddin case
Facts: In this case, the Tata Indicom employees were arrested for manipulation of the electronic 32- bit number (ESN) programmed into cell phones theft were exclusively franchised to Reliance Infocom.
Held: Court held that Tampering with source code invokes Section 65 of the Information Technology Act.
Section 66 : Hacking with the computer system
This section provides that- (1) Whoever
- With the intention to cause or knowing
- that he is likely to cause wrongful loss or damage to the public or
- any person
- destroys, deletes or alters any information
- residing in a computer resource or
- diminishes its value or utility or affects it injuriously by any means, commits hacking.
(2) Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.
Section 66 F: Cyber Terrorism : This provision was inserted in the act through Information Technology (Amendment) Act, 2008.Cyber terrorism simply means using or targeting cyber space to spread terrorism.
Sec. 66F provides that a person commits cyber terrorism if he uses cyber space with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people by
- Denying or causing the denial of access to any person authorized to access computer resource; orattempting to access a computer resource without authorization or exceeding authorized access; orintroducing or causing to introduce any computer contaminant
- And by means of such conduct causes (outcome) or is likely to cause death or injuries to persons or damage to or destruction of property or disruption of supplies or services essential to the life of the community or adversely affect the critical information infrastructure specified under Sec. 70, or
- Knowingly accesses a computer resource without authorization and obtains access to secret information which may be used to cause injury to the security of the State, public order or to the advantage of any foreign nation or otherwise commits the offence of cyber terrorism.
Punishment: Imprisonment which may extend to life imprisonment.
Section 70 Protected System
This section provides that any person who secures access or attempts to secure access to a protected system in contravention of the provision of this section shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Explanation: This section grants the power to the appropriate government to declare any computer, computer system or computer network, to be a protected system. Only authorized person has the right to access to protected system.
Where crime is committed using a computer / communication device: Three sub parts:
- Offences affecting the human body/person: Sec.66 A. and Sec. 66 E (Added by 2008 Amendment Act)
- Offences affecting property v Sec.66 B, 66 C, 66 D.
- Offences affecting Decency and Morals Sec.67, 67A, 67 B.
Offences affecting Human Body :
- Section 66 A : Punishment for sending offensive messages through communication service , Messages which are grossly offensive sent through emails, SMS; blogs, tweets.
Examples: cyber stalking, morphing of images, unsolicited e-mails.
Penalty: 3-year imprisonment and with fine.
Section 66A of the IT Act, 2000 has been strike down by the Hon’ble Supreme Court of India vide its decision dated 24th March 2015. Shreya Singhal filed public interest litigation in the Supreme Court challenging constitutional validity of Sec. 66A. On 24th March 2015 , the Supreme Court of India gave the verdict that section 66A is unconstitutional (as it is violative of article 19 (1) (a) related to freedom of speech and expression) in the Shreya Singhal vs Union of India case.
Section 66E Punishment for Violation of Privacy. [Inserted vide IT (Amendment) Act, 2008]. This section provides that whoever
- Intentionally or knowingly
- Captures, publishes or transmits
- Image of a private area of any person
- Without his or her consent,
- Violates the privacy of that person and shall be punished.
This section covers acts like hiding cameras in changing rooms, hotel rooms etc.
Punishment: Imprisonment up to 3 years, or fine up to ₹ 2 lakh, or with both.
Illustration
Whether Sting Operations fall under section 66B?
Sting operation by a private person or an agency, which may result in violating bodily privacy of another person will fall under section 66 E of the Act. Whatever may be the reason – public interest or the people right to know, one should not disregard the protection being given to an individual against his bodily privacy under this section. In Court on its own motion vs State.
Offences affecting Property :
Section 66B: Dishonestly Receiving or Retaining Stolen Computer Resource or Communication Device. [Inserted vide Information Technology (Amendment) Act, 2008].
This section makes receiving or retaining of any stolen computer resource or communication device such as, mobile phones or SIM cards etc. punishable under the Act:
Punishment: Imprisonment up to 3 years, or Fine up to ₹ 1 lakh or with both
Section 66C Identity Theft. [Inserted vide Information Technology (Amendment) Act, 2008]
This section covers the fraudulent and dishonest usage of the electronic signature, password or any other unique identification feature of any other person.
Case Law: Sanjay Jha v. State of Chattisgarh (2014, SCC) Accused person generated fake documents from the internet, used fake letter head of railway minister, appended his forged signatures. He was charged under Sec. 66C of the IT Act in addition to various sections under IPC.
Punishment: Imprisonment up to 3 years and Fine up to ₹ 1 lakh.
Section 66 D Cheating by Personation by using Computer Resource [Inserted vide Information Technology (Amendment) Act, 2008].
This section provides punishment for a person who by use of computer resource or communication device cheats by personating i.e., by pretending to be some other person, e.g., posting of a fake profile on matrimonial site with fraudulent intention.
Punishment: Imprisonment up to 3 years and Fine up to ₹ 1 lakh.
Case Law: Sandeep Vaghese v. State of Kerala Image of the company and its directors was maligned by some people (including a man who was dismissed from the company) by creating fake website. The company suffered losses due to that. It came within the ambit of Sec. 66D.
Offences affecting Decency and Morals :
Section 67 : Publishing or transmitting obscene or pornographic material in electronic form
As per this section obscene material means any material
- which is lascivious or appeals to prurient interest or
- if its effect is such as to tend to deprave and corrupt persons.
If a person publishes or transmits such material in electronic form he may face the punishment.
The ingredients of offence under the aforesaid section are:
- Publication or transmission in the electronic form,
- any material lascivious or appeals to the prurient interest,
- tendency to deprave and corrupt persons,
- likely-audience,
- to read, see or hear the matter contained or embodied in electronic form
Further, to understand the meaning of the terms “publishes” or “transmits”, we turn to Explanations given alongside Section 66E, which are given below:
- “transmit” means to electronically send a visual image with the intent that it be viewed by a person or persons;
- “publishes” means reproduction in the printed or electronic form and making it available for public;
It should be noted, however, that the aforesaid section does not make knowledge of obscenity an ingredient of the offence, similar to the case of Section 292(1) of the IPC.
Accordingly, to escape criminal charges, one has to prove his lack of knowledge of publication or transmission of obscene information in electronic form. We would also submit here that mere possession, browsing or surfing through obscene content is not an illegal activity.
Case Law
Avnish Bajaj vs NCT of Delhi known as “Bazee.com” case , a landmark case with respect to Section 67. In this particular case, one Ravi Raj, a fourth year student of IIT Kharagpur uploaded an MMS clip for sale on the website “bazee.com”. The concerned MMS clip contained obscene and sexually explicit content related to certain school girls of Delhi. In order to avoid detection by the filters installed by baazee.com, Ravi Raj included the clip under the category “Books and Magazines” and sub-category ‘e-books’.
Subsequently, the police registered an FIR, and both Ravi Raj and the CEO of Bazee.com Avnish Bajaj were arrested. From the point of view of our discussion vis-à-vis section 67 of the IT Act, the questions before the Delhi High Court:
Whether prima facie the listing on the website baazee.com constituted and offence, and whether the website caused the publishing of such obscene material?
Thus, bazee.com was subject to strict liability under Section 292 of the IPC. Its lack of knowledge was irrelevant in the eyes of the law and the limited immunity from liability provided by the IT Act was inapplicable.
The State of Tamil Nadu v. Suhas Katti.
Facts: This case is about posting obscene, defamatory and annoying message about a divorcee woman in the Yahoo message group. E-mails were forwarded to the victim for information by the accused through a false e-mail account opened by him in the name of the victim. These postings resulted in annoying phone calls to the lady. Based on the complaint police nabbed the accused. He was a known family friend of the victim and was interested in marrying her. She married to another person, but that marriage ended in divorce and the accused started contacting her once again. And her reluctance to marry him he started harassing her through the internet.
Held: The accused is found guilty of offenses under section 469, 509 IPC and 67 of the IT Act 2000 and the accused is convicted and is sentenced for the offense to undergo RI for 2 years under 469 IPC and to pay fine of Rs.500/-and for the offense u/s 509 IPC sentenced to undergo 1 year Simple imprisonment and to pay fine of Rs.500/- and for the offense 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.”
The accused paid fine amount and he was lodged at Central Prison, Chennai. This is considered the first case convicted under section 67 of Information Technology Act 2000 in India.
Punishment: First Conviction: Imprisonment upto 3 years and fine upto ₹ 5 lakhs
Subsequent Conviction: Imprisonment upto 5 years and fine up to ₹ 10 lakhs
Section 67 A : Publishing or transmitting of material containing sexually explicit act, etc in electronic form
The ingredients of offence under the aforesaid section are:
- Publication or transmission in the electronic form,
- Any material containing sexually explicit act or conduct.
It is important to note here that the term “sexually explicit act or conduct” has been qualified by the word “explicit”, meaning thereby that “mere obscene act or conduct” may NOT fall under this section.
For punishment under this section – “publication or transmission of sexually explicit act or conduct” – is an essential ingredient. Hence the difference between section 67 and 67A is depends on the nature of obscene content.
Case Laws
Shri Venkataraman v The State Of Karnataka 2022 , where the accused was arrested when the Police received information from the National Cyber Crime Reporting Portal (NCCRP) that he had uploaded pornographic material relating to a minor female child.
Prajwala case Suo moto by 2015, which led to a sincere attempt on the part of Judiciary to bring on board the State, Intermediaries (Google, Microsoft, Facebook, WhatsApp), and technical experts to tackle the menace of obscene images/rape videos/child sexual images on the internet. In this case, concerns were raised that apart from the fact that the incidents of rape and gang rape were being recorded, to make matters worse, they were being distributed through whatsapp.
The State has the responsibility for cleaning up the cyber space and many important steps have been taken in this direction.
The setting up of prevention, detection and correction machinery, in the form of
- Indian Cyber crime coordination centre,
- Cyber crime reporting portal and
- Regional Cyber Crime coordination centres have shown earnestness of its intent.
- It has also taken up steps to increase cyber vigilance through programmes such as “Cyber Crime Volunteer Framework”, which has resulted in an increased participation of citizens towards a hygienic cyber space.
Punishment : First Conviction: Imprisonment upto 5 years fine which may
extend to ₹ 10 lakhs
Subsequent Conviction: Imprisonment upto 7 years and fine ₹ 10 lakhs
Section 67 B : Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.–Whoever –
- Publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or
- creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or
- cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or
- facilitates abusing children online, or
- records in any electronic form own abuse or that of others pertaining to sexually explicit act with children
Punishment : First Conviction: Imprisonment upto 5 years fine which may
extend to ₹ 10 lakhs
Subsequent Conviction: Imprisonment upto 7 years and fine ₹ 10 lakhs
Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form–
- The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting representation or figure is the interest of science, literature, art or learning or other objects of general concern; or
- Which is kept or used for bona fide heritage or religious purposes. Explanation–For the purposes of this section, ―
“children” means a person who has not completed the age of 18 years.
In the case of Kamlesh Vaswani v. Union of India the Supreme Court issued directions to the govt. to order intermediaries to disable specific content where website operating child pornography was sought to be restricted.
In another case of Fathima A.S. v. State of Kerala 2020. The petitioner, who filed an anticipatory bail application under Section 438 of CrPC, was a mother who asked her two minor children, aged 14 (boy) and 8 (girl) to paint on her naked body above the navel. The children painted on her naked body. The petitioner recorded it as a video, uploading it on social media with the heading “Body Art and Politics”. An FIR was then registered under sections 13, 14 and 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and under section 67B (d) of the Information Technology Act, 2000.
The petitioner submitted that she is an activist and has been fighting her battle against body discrimination, and that children should be given sex education while also need to be made aware of the body and body parts. Accordingly, they would mature themselves to view the body and body parts as a different medium altogether rather than seen it as a sexual tool alone. The petitioner contended that, morality of the society and public outcry cannot be a reason and logic for instituting a crime and prosecuting a person.
The petition, however, was rejected, and in the observations of the learned judge:
“I place myself in the position of the petitioner and from the view point of the viewers of every age group in whose hands this video is reached by uploading the same by the petitioner. After applying my judicial mind, I am not in a position to say that, there is no obscenity in the video when it is uploaded in the social media.”
Power of Controller to give directions:
Section 68 of this Act provides that
- The Controller may, by order, direct a Certifying Authority or any employee of such Authority to take such measures or cease carrying on such activities as specified in the order if those are necessary to ensure compliance with the provisions of this Act, rules or any regulations made thereunder.
- Any person who fails to comply with any order under sub-section (1) shall be guilty of an offense and shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding two lakh rupees or to both.
Explanation: Any person who fails to comply with any order under subsection (1) of the above section, shall be guilty of an offense and shall be convicted for a term not less than three years or to a fine exceeding two lakh rupees or to both.
The offense under this section is non-bailable & cognizable.
Punishment: Imprisonment up to a term not exceeding three years or fine not exceeding two lakh rupees.
Directions of Controller to a subscriber to extend facilities to decrypt information:
Section 69 provides that-
- If the Controller is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offense; for reasons to be recorded in writing, by order, direct any agency of the Government to intercept any information transmitted through any computer resource.
- The subscriber or any person in charge of the computer resource shall, when called upon by any agency which has been directed under sub-section (1), extend all facilities and technical assistance to decrypt the information.
- The subscriber or any person who fails to assist the agency referred to in subsection shall be punished with imprisonment for a term which may extend to seven years.
Punishment: Imprisonment for a term which may extend to seven years. The offense is cognizable and non- bailable.
Penalty for misrepresentation:
Section 71 provides that-
(1) Whoever makes any misrepresentation to, or suppresses any material fact from, the Controller or the Certifying Authority for obtaining any license or Digital Signature Certificate, as the case may be, shall be punished .
Punishment: Imprisonment which may extend to two years or fine may extend to one lakh rupees or with both.
Penalty for breach of confidentiality and privacy:
Section 72 provides that- Save as otherwise provide in this Act or any other law for the time being in force,
Any person who, in pursuance of any of the powers conferred under this Act, rules or regulation made thereunder, has secured assess to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such material to any other person shall be punished .
Explanation: This section relates to any person who in pursuance of any of the powers conferred by the Act or it allied rules and regulations have secured access to any: Electronic record, books, register, correspondence, information, document, or other material.
If such a person discloses such information, he will be punished. It would not apply to disclosure of personal information of a person by a website, by his email service provider.
Punishment: Term which may extend to two years or fine up to one lakh rupees or with both.
Penalty for publishing Digital Signature Certificate false in certain particulars:
Section 73 provides that –
(1) No person shall publish a Digital Signature Certificate or otherwise make it available to any other person with the knowledge that-
- The Certifying Authority listed in the certificate has not issued it; or
- The subscriber listed in the certificate has not accepted it; or
- The 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.
(2) Any person who contravenes the provisions of sub-section (1) shall be punished .
Explanation: The Certifying Authority listed in the certificate has not issued it or, The subscriber listed in the certificate has not accepted it or the certificate has been revoked or suspended.
The Certifying authority may also suspend the Digital Signature Certificate if it is of the opinion that the digital signature certificate should be suspended in public interest.
A digital signature may not be revoked unless the subscriber has been given opportunity of being heard in the matter. On revocation, the Certifying Authority need to communicate the same with the subscriber. Such publication is not an offense it is the purpose of verifying a digital signature created prior to such suspension or revocation.
Punishment: Imprisonment of a term of which may extend to two Years or fine may extend to 1 lakh rupees or with both.
CASE LAWS:
Bennett Coleman & Co. v. Union of India
In this case, the publication has been stated that ‘publication means dissemination and circulation’. In the context of the digital medium, the term publication includes and transmission of information or data in electronic form.
Publication for fraudulent purpose:
Section 74 provides that- Whoever knowingly creates, publishes or otherwise makes available a Digital Signature Certificate for any fraudulent or unlawful purpose shall be punished with imprisonment for a term which may extend to two years, or with fine which extends to one lakh rupees, or with both.
Explanation: This section prescribes punishment for the following acts:
Knowingly creating a digital signature certificate for any
- fraudulent purpose or,
- unlawful purpose.
Knowingly publishing a digital signature certificate for any
- fraudulent purpose or
- unlawful purpose
Knowingly making available a digital signature certificate for any
- fraudulent purpose or
- unlawful purpose.
Punishment: Imprisonment for a term up to two years or fine up to one lakh or both.
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