CHALLENGES FACED IN INVESTIGATION OF CYBER CRIME

Jurisdiction

Jurisdiction is a very important notion while execution of any law in any country. Jurisdiction is of two types that are territorial and personal. Cybercrime often transgress the national boundaries there is when

jurisdiction becomes a complicated matter. Countries differ in civil & criminal offences standards, substantive & procedural law, data collection & preservation practices and other evidentiary and juridical factors. Moreover, it’s often ambiguous on whose responsibility it’s to deal with a specific crime or conduct an investigation, or the way to collaborate through extradition and mutual assistance policies. This plays out not only on world level, but also within nations where multiple law enforcement partments are implicated. Due to the nature of cybercrime the traditional notion of jurisdiction is needed to be changed. The traditional notion of jurisdiction is predicted on territorial theory and physical presence theory. The territorial theory protects the territorial integrity of the state, it gives power to investigate and inquire any crime within the territory of the state. In physical presence theory, the presence of person or property in a state is a basic ground upon which a legal authority exercises its jurisdiction. But cyber crime is different therefore both the theories are useless in certain situations.

1. Impact of the internet upon the territorial notions of jurisdiction

Internet communications goes beyond state boundaries creating a new realm of human activities and weakening the legitimacy of applying laws based on territorial boundaries. Some territorial-based law makers and law enforcement authorities take this as new environment threat. A state is territorial in nature while the internet is not restricted to territorial boundaries. Considering the problem of jurisdiction the CrPC and IPC was amended at the time of enactment of the IT Act 2000. Chapter XIII, Section(s) 178-

186 and Section 188 were meant to enlarge the ambit of the local jurisdiction. Apart from dealing with the crimes committed in India, the CrPC also supplements Section 4 of IPC which contains the extension of the IPC to extra-territorial crimes. The amended Section gives power to the Indian Court to deal with the matter if the affected computer recourse is situated in India. The rules under this section show the legitimate right of a sovereign state on its citizens, not only on its lands but also on any foreign land. Thus, the amendment somewhere tried to provide the jurisdiction, but the execution of this section is still not possible without the co-operation of other State.

2. Electronic/ Digital Evidences

Electronic evidences are all such materials that exist in electronic, or digital, form. It can be stored or transmitted. It can be in different forms like computer files, transmissions, logs, metadata, or network data. Digital forensics deals with recovering of volatile and easily contaminated information that may have evidential value. Forensics techniques includes creation of bit-for-bit copies of stored and deleted information, cryptographic file hashes or digital signatures that can demonstrate changes in information and write-blocking to ensure that the original information do not get changed. In cyber crime the evidence may be in any form.

Digital evidence is any information stored or transmitted in digital form that a celebration to the case may use within the trial. Whenever any digital evidence submitted in the court of law, then before accepting it, the Court will determine if the evidence is relevant or whether it is admissible as evidence. Court also determines, whether it is hearsay evidence and whether original is required or a copy is acceptable. The Amendment in the Evidence Act, 1872 has brought the electronic document under the preview of evidence. The definition of documentary evidence has been amended to include electronic record produced for inspection by the court.

Section 3 of Indian Evidence Act, 1872 defines evidence as,

“Evidence means an includes —-

1) All statements which the court permit or require to be made before it by witness in relation to matter of fact under inquiry; such statements are called oral evidence;

2) All documents including electronic records produced for the inspection of the court. Such documents are called documentary evidence.”

The Indian Evidence Act includes certain new sections as Section 65A and 65B and these sections provide that the content of electronic records may be proved in the court of Law.

Sec. 65B (1): Notwithstanding anything contained during 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 shall be deemed to be also a document, if the conditions mentioned during this section are satisfied in reference to the knowledge and computer in question and shall be admissible in any proceedings, without further proof or production of the first , as evidence of any contents of the first or of any fact stated therein of which direct evidence would be admissible.

Sec. 65B (2): This Section lists the technological conditions upon which a duplicate copy (including a print-out) of an original electronic record may be used.

Sec. 65 (3): This Section lists what computers shall constitute as single computer:

by a combination of computers operating over that period; or

by different computers operating in succession over that period;or

by different combinations of computers operating in succession over that period; or

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.

Sec. 65 (4) States that for the purpose of admissibility of evidence, a certificate shall have the following matters as necessary:

• Identifying the relevant electronic records containing the statement and describing the manner in which it was produced

• giving the particulars of device involved in the production of that electronic record

• handling any of the matters to which the conditions mentioned in subsection (2) relate and purporting to be signed by an individual 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 within the certificate; and for the needs of this sub-section it shall be sufficient for a interest be stated to the simplest of the knowledge and belief of the person stating it.

The Section 17 of the Indian Evidence Act deals with admission, this Section now includes the statement in electronic form. Section 22A of Indian Evidence Act, 1872, deals with the relevancy of oral evidence regarding the content of electronic record. It says the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.Section 88A of the evidence Act, 1872 grants discretion to the court to presume that an electronic massage forwarded by the originator through an electronic mail server to the addressee correspondents with the massage as fed into his computer transmission. Section 88A clarifies that the court shall not make any presumption as to the person by whom such electronic massage is sent. The law thus accepts the vulnerability of fabrication of electronic message.

The next amendment in the Indian Evidence Act 1872, is Section 45A of the Evidence Act, which provides, 45A. Opinion of Examiner of Electronic Evidence.- When during a proceeding, the court has got to form an opinion on any matter concerning any information transmitted or stored in any computer resource or the other electronic or digital form, the opinion of the Examiner of Electronic Evidence mentioned in section 79A of the knowledge Technology Act, 2000(21 of 2000) is a relevant fact.

Thus, the various provisions of the evidence Act deals with the electronic or digital evidence.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

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