8LLB091- Criminal Law II Cybercrime Space IN IPC 1860 Semester IV PDF

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IPC and Cybercrime...

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CYBER CRIME SPACE IN IPC 1860 By Name of the Student: Uma shankar Mishra Roll No.: 18LLB091 Semester: IV Name of the Program: 5 year (B.A., LL.B. / LL.M.) Name of the Faculty Member: Prof. (Dr.) Bhavani Prasad Panda Date of Submission:

11/12/2020

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY NYAYAPRASTHA, SABBAVARAM, VISAKHAPATNAM – 531035, ANDHRA PRADESH

ACKNOWLEDGEMENT I w0uld like t0 express my gratitude t0 Prof. (Dr.) Bhavani Prasad Panda f0r pr0viding me an 0pp0rtunity t0 prepare a research paper 0n the t0pic - Cyber Crime Space in IPC 1860. I

have tried my best t0 diversify and c0llect inf0rmati0n fr0m vari0us s0urces and present the t0pic in a clear-cut and reliable manner. I w0uld be grateful f0r any suggesti0ns

INDEX 1) SYNOPSIS…………….…………………………………………….1-2

2) CYBERCRIME & ITS MEANING…………………………………2-4

3) RELEVANT SECTIONS OF IPC FOR CYBERCRIME………….4-7

4) STALKING AND REASON OF CYBERSTALKING…………….8-10

5) CASES RELATING TO CYBERSTALKING……………………10-14

6) CONFLICT BETWEEN IPC and IT ACT & CASES……………….14-18 7) CONCLUSION……………………………………………………….19

TABLE OF CASES

NAME OF THE CASE KALANDI CHARAN LENKA VS STATE

CITATION/ CASE NO 2017 (I) OLR 543

OF ODISHA STATE OF WEST BENGAL V. ANIMESH BOXI

GR NO. 1587 OF 2017.

SAZZADUR RAHMAN V. THE STATE

2020 (4) GLT 1

OF ASSAM AND ORS SHUBHAM BANSAL V. THE STATE

265 (2019) DLT 454

(GOVT OF NCT DELHI) .

PRAKHAR SHARMA V. THE STATE OF MADHYA PRADESH,

MCRC No. 377 of 2018

HAREESH V. STATE OF KERALA

BAIL APPLICATION NO. 4858 OF 2018.

GAGAN HARSH SHARMA V. THE STATE OF MAHARASHTRA

2019 CriLJ 1398

JITENDER SINGH GREWAL V. THE STATE OF WEST BENGAL

CRIMINAL MISCELLANEOUS PETITION NO. 7252 OF 2018

SHARAT BABU DIGUMARTI V. GOVERNMENT OF NCT OF DELHI

AIR 2017 SC 150

SYNOPSIS TITLE -

CYBER CRIME SPACE IN IPC 1860

RESEARCH METHODOLOGY 1) Descriptive and Exploratory Study 2) Analytical Study

SUMMARY OF RESEARCH PAPER As we all know that this is the era where most of the things are done usually over the internet starting from online dealing to the online transaction. Since the web is considered as worldwide stage, anyone can access the resources of the internet from anywhere. The internet technology has been using by the few people for criminal activities like unauthorized access to other’s network, scams etc. These criminal activities or the offense/crime related to the internet is termed as cybercrime. In order to stop or to punish the cyber criminals the term “Cyber Law” was introduced. We can define cyber law as it is the part of the legal systems that deals with the Internet, cyberspace, and with the legal issues. It covers a broad area, encompassing many subtopics as well as freedom of expressions, access to and utilization of the Internet, and online security or online privacy. Generically, it is alluded as the law of the web.

OBJECTIVE OF THE STUDY This research paper tries to find out the importance of IPC provisions in resolving a cybercrime and in case of conflict between IPC and IT Act, 2000 with regard to Cyber Crimes, what should be preferred?

SCOPE OF THE STUDY - The Scope of the Research paper is limited to Indian penal code, 1860 and Information Technology Act, 2000

RESEARCH QUESTIONS 1) How to deal with cases involving online harassment and cyberstalking both?

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2) How to resolve Conflict between IPC and IT Act,2000 with regard to same crime different punishment? LITERTURE REVIEW

For doing this research paper I have reviewed Articles titled

a) Punishments for cybercrimes in IPC available at - https://blog.ipleaders.in/punishmentscyber-crimes-ipc/

b) Cyber Crimes Under The IPC And IT Act - An Uneasy Co-Existence – available at https://www.mondaq.com/india/it-and-internet/891738/cyber-crimes-under-the-ipc-and-itact--an-uneasy-co-existence?type=mondaqai&score=69

WHAT IS CYBER CRIME? Crime is an act or omission, which is prohibited by the law particularly criminal. CyberCrime is the latest and perhaps the most specialized and dynamic field in cyber-laws. “Cybercrimes can be plainly defined as “Crimes directed at a computer or computer system” But the complex nature of cybercrimes cannot be sufficiently expressed in such simple and limited term”1. The Organization for Economic Co-operation and Development (OECD) recommended the working definition of cybercrime “computer related crime is considered as any illegal, unethical or unauthorized behavior relating to the automatic processing and the transmission of data.” In 2001, The Council of Europe Convention defines cybercrime in Articles 2-10 in four different categories: 1) offences against the confidentiality, integrity and availability of computer data and systems 2) computer- related offences 3) contentrelated offence 4) offences related to infringements of copyright and related rights One of the greatest lacunae of this field is the absence of a set of comprehensive law anywhere in the world. Further the growth ratio of internet and cyberlaw is not proportional Too. The era of nuclear warfare conceived the idea of a system which could even survive the devastation of nuclear weapons. "A post-apocalypse command grid" was the original idea for Page 2 of 19

Internet -'Bruce Sterling' has stated. The idea of 'internet' was conceived in the early 60's while a code for its regulation was mooted in late 90's. This clearly brings about the reason for the complication of cyber-crime.

MEANING AND HISTORY OF CYBER CRIMES The term cybercrime was used for the first time in 1995 by Sussman and Heuston who were renowned legal scholars. The term cybercrime was seen as a collection of conducts and acts rather than a single notion. These conducts usually involve manipulation or infiltration into data or computer systems which amounts to illegal activities. It is also familiar as e-crime, technology crime, information related crime, etc. As the manipulation of computers usually happens through computer networks i.e internet, the term ‘cybercrimes’ has evolved from ‘cyberspace’ which denotes the internet. But cyberspace is not the only platform for the commission of cybercrime, but they have even been committed offline i.e software attacks etc. The strange element of cybercrimes, when compared to general crimes, is that the perpetrator and the victim might never have direct contact with each other. The victim for cybercrime might be chosen by the perpetrator by considering certain factors like digital vulnerability, illiteracy, personal agenda, etc. A cybercrime would affect the physical or economic sovereignty, data privacy, social relations, etc of the individuals. For achieving these purposes, the cyber attackers usually choose countries in which the laws and the technology are not developed to an extent that provide mechanisms to catch and punish the perpetrators. As far as India is concerned, the IT Act, 2000 extensively deals with numerous cybercrimes and their punishments. Along with this, the Indian Penal Code, 1860 also contains certain provisions which concern themselves with a number of cybercrimes. As far as the history of cybercrime is concerned, the first cybercrime was committed within the year of computer invention by Charles Babbage i.e 1820. In that year, Joseph- Marie Jacquard, who was a renowned textile manufacturer in France created a loom in order to repeat the activity of weaving. As the labourers who worked in the factory and did the same activity manually became concerned about the loom as it has threatened the existence of their jobs directly, they sabotaged the loom thus committing a cybercrime. Though this is a raw form of cybercrime, the mechanisms to commit a cybercrime have evolved to a dangerous extent in the last two centuries Q) WHAT IS CYBERSPACE? The term “cyber space” means the environment where the communication takes place using internet. In other words, it is a world created by internet. Cyber space can be defined as Page 3 of 19

follows: “a global domain within the information environment consisting of the interdependent network of information technology infrastructures, including the Internet, telecommunications networks, computer systems, and embedded processors and controllers.” Another definition is “the virtual space in which the electronic data of worldwide PCs circulate.” This is a vague description of cyber space. The main characteristic of cyberspace is that it is composed of various computer networks, switches, routers, servers, etc. It is a cluster of various infrastructures such as transportation, banking, finance, telecommunication, energy and public health.

RELEVANT SECTIONS OF IPC FOR CYBERCRIME There are many acts that are often attracted to IPC provisions, apart from fines in the IT Act, 2000. The following is the list of the provisions of the IPC along with different cybercrimes attracted to the respective parts and the penalty for the same. • IPC section 292: While this section was drafted to deal with the selling of obscene content, it has grown to deal with numerous cybercrimes in the new digital age. This Section further regulates the disclosure and dissemination, in electronic form, of indecent content or sexually suggestive activities or exploitation acts involving minors, etc. While the crimes listed above appear to be alike, the IT Act and IPC consider them as distinct crimes. The sentence levied on the commission of these offences is imprisonment and fines of up to 2 years and Rs. 2000. The period of imprisonment will be up to 5 years and the fine will be levied up to Rs. 5000 if all of the above offences are committed for the second time.

• IPC Section 354C: The cybercrime dealt with under this clause is the recording or release, without the consent of that person, of an image of a woman's private parts or actions. This segment deals specifically with the 'voyeurism' crime, and also considers a woman's observing certain actions as a crime. Section 292 of the IPC and Section 66E of the IT Act, 2000, where the necessities of this Section (such as gender) are not met, were large enough to take into account crimes of a similar nature. For first-time criminals, the sentence requires 1 to 3 years of probation and 3 to 7 years for second-time offenders.

IPC Section 354D: This section defines and punishes all physical and cyberstalking 'stalking'. If, despite her disinterest, the woman is tracked by electronic communication, internet, or email or is bothered by a person to communicate or touch, it amounts to cyberstalking. The latter portion of the section specifies the sentence for this crime as incarceration Page 4 of 19

lasting for the first time up to 3 years and for the second time up to 5 years along with a fine levied in both cases.

Section 379 of the IPC: If the data from the cell phone or computer hardware is stolen from a mobile phone, Section 379 enters into the picture and the sentence for such a crime will be up to 3 years in jail or fine or both. However, consideration must be paid to the fact that these requirements cannot be extended in the event of the 2000 provisions being attracted by the special legislation, i.e., the IT Act

IPC Section 411: This deals with a felony following the crimes committed and punishable according to Section 379. In compliance with Section 411 of the IPC, if someone gets a stolen cell phone, device, or data from the same user, they will be convicted. It is not necessary that the material be owned by the robber. And if it is owned by a third person who knows that it is others, it would incur this clause. The sentence can be levied in the form of probation that can be applied for up to three years or a fine, or both.

• IPC Parts 419 and 420: They are similar provisions for dealing with theft. Password stealing offences for the intent of achieving dishonest targets or the development of fake websites and the commission of cyber fraud are such offenses that these two parts of the IPC deal closely with. On the other hand, email phishing is exclusively concerned with IPC Section 419 by believing that someone's identity includes a password. Based on the gravity of the cybercrime committed, the punishments under these provisions are different. Section 419 carries a sentence of up to three years in prison or a fine, and Section 420 carries a penalty of up to seven years in prison or a fine.

• IPC Section 465: The penalty for forgery is discussed in this clause in the normal case. Under this Clause, offences such as email spoofing and preparation of fake documents are handled and prosecuted in cyberspace, which imbibes incarceration of up to 2 years or fine or both.

Section 468 of the IPC: When email spoofing or internet forgery violations are committed for the intent of committing such serious offenses, i.e., hacking, Section 468 is contained in the image bearing a sentence of seven years in jail or a fine or both.

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Section 469 of the IPC: If a forgery is committed by someone purely for the intent of disregarding a person or recognizing that such a forgery damages a person's integrity, either in the form of a physical document or via electronic forms online, he/she can be fined up to three years in jail.

• IPC section 500: This clause penalizes the individual's slander. With regard to cybercrimes, IPC Section 500 can draw some sort of defamatory material or offensive comments via email. The incarceration held with this provision lasts along with a fine for up to 2 years.

• IPC Section 504: If anyone threats, insults, or seeks to provoke another person by email or some other electronic form with the purpose of making peace, it is an offense under IPC Section 504. The sentence for this crime is up to 2 years in jail or a fine or both.

Section 506 of the IPC: If a person threatens to criminally threaten another person, either physically or through electronic means, with regard to the life of a person, the damage of property by fire or the chastity of a woman, the penalty shall be an offense pursuant to Section 506 of the IPC and the penalty of incarceration if the cumulative term is increased to seven years or fines or both.

IPC Section 509: This section deals with the offence of uttering a phrase, displaying a motion, and committing an act that has the potential to damage a woman's modesty. It also covers the noises made and the actions done in breach of a woman's privacy. Section 509 is attracted if this crime is committed either physically or by electronic modes, and the sentence will be incarceration for a maximum term of one year or fine or fine or

CHART OF RELEVANT SECTIONS OF IPC FOR CYBERCRIME S. No . 1.

2.

NATURE OF COMPLAINT

APPLICABLE SECTION (S) AND PUNISHMENTS UNDER IT ACT 2000

Mobile phone lost/stolen Receiving stolen computer/mobile phone /data (data or

APPLICABLE SECTION(S) UNDER IPC Sec 379 IPC up to 3 years imprisonment or fine

Section 66 B of IT Act 2000 – Up to 3 years imprisonment or Rupees one Page 6 of 19

Section 411 IPC – up to 3 years imprisonment or fine or both

3.

4.

5

computer or mobile phone owned by you is found in the hands of someone else Data owned by you or your company in any form is stolen A password is stolen and used by someone else for fraudulent purpose like a credit card fraud

A Phishing e-mail is sent out in your name, asking for login credentials

lakh fine or both

Section 66 of IT Act 2000 Up to 3 years imprisonment or fine up to Rupees five lakh or both Section 66C of IT Act 2000 Up to 3 years imprisonment or Rupees one lakh fine Section 66 D of IT Act 2000 Up to 3 years imprisonment or Rupees Section 66 D of IT Act 2000 -

Section 379 IPC up to 3 years imprisonment or fine or both

Section 419 IPC – upto 3 years imprisonment or fine Section 420 IPC - upto 7 years imprisonment or fine

Section 419 IPC – upto 3 years imprisonment or fine

Up to 3 years imprisonment or Rupees one lakh fine

6

Capturing, publishing Section 66 E of IT Act 2000 or transmitting the image of a private area without any person’s Up to 3 years imprisonment consent or knowledge or fine not exceeding

7

Sending offensive messages through communication service or Harassment via fake public profile on social networking site

8

Email abuse

9

Theft of confidential information Online hate community Introducing viruses, worms, backdoors,

Section 292 IPC- upto 2 years imprisonment and fine Rupees 2000 and upto 5 years and rupees 5000 for second and subsequent conviction

Rupees two lakh or both

10 11

Sections 43, 66, 66B Section 66A Sections 43, 66, 66A of IT Act Page 7 of 19

Section 500 IPC – upto 2 years or fine or both Section 504 IPC - upto 2 years or fine or both Section 506 IPC - upto 2 years or fine or both – if threat be to cause death or grievous hurt, etc. – up to 7 years or fine or both Section 507 IPC - upto 2 years along wi h punishment u/s 506 IPC Section 508 IPC - upto 1 years or fine or both Section 509 IPC - upto 1 years or fine or both Section 500 IPC – upto 2 years or fine or both Section 426 of IPC Section 153A & 153B of the Indian Penal Code. Section 426 of Indian Penal Code.

rootkits, trojans, bugs:

STALKING AND CYBER STALKING Section 354D of IPC defines stalking as following: ‘Any man who 1) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or 2) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking: (emphasis supplied) Provided that such conduct shall not amount to stalking if the man who pursued it proves that i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the state ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law iii) in particular circumstances such conduct was reasonable and justified.' The language of Section 354D of IPC makes it clear that the section penalises both the offence of offline and online stalking, without discriminating on the basis of presence or absence of the ‘cyber' component. However, sub-section (2) fails to clarify the manner in which the victim can be said to be ‘monitored' or ‘watched' or what constitutes such acts

Q) WHAT IS CYBERSTALKING? Ans) “Cyber stalking” is defined as a crime where the stalkers use internet or any other electronic device to stalk someone. Online harassment and online abuse are synonymously used for cyber stalking. It involves a conduct of harassing or threatening repeatedly to an individual. Stalking can be done in the following ways such as: to follow a person till his home or where he does his business, to cause destruction to a person’s property, leaving written messages or objects, or making harassing phone calls. The Cyber stalkers always think that they’re anonymous and can hide. In other words, the cyber stalker’s biggest strength is that they can rely upon the anonymity which internet provides to them that allows them to keep a check on the activities of their victim without their identity being detected. Page 8 of 19

Thus, there is a need of efficient cyber tools to investigate cyber-crimes and...