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Friday, 27 August 2010


As investigating team comprising personnel of special skills and expertise becomes a logical requirement.
         i.            Securing data from authorized personnel owning such data that may have evidentiary value for investigation of a crime and
       ii.            The legal provisions that empower investigating officer to conduct a search and proceed further to seize incriminating evidences for a successful prosecution.

The former issue involves the privacy right of individual as upheld by the State and to compet the physical owner of the data to allow access and further, immunizing them from the bonafide breach.

The latter issue involves principally the aspect of jurisdiction.  The law enforcement agency enjoys full and unfettered powers to investigate a crime within the jurisdiction of the country.  The accepted norm is one wherein there is a demand from the law enforcement agency of one country for legal assistance and response of the law enforcement agency of another country to assist them on established principle of reciprocity.


The law enforcement agencies face new challenges in combating these crimes.  They are yet to establish the degree of proficiency and understanding to successfully detect such crimes.

In the absence of special laws to define these crimes, recourse to traditionally defined offences are largely taken to.

Computer figures as an instrument for commission of crime.  The investigator is confronted with new types of electronic evidences like computer files program, ID passwords etc.

Information Technology is one of the fastest growing technologies in India.  Information in this context is being recognized as a resource for the country’s growth and development as well as to become globally competitive.  The size of investment in the IT industry is estimated at Rs.7500 crores (US $ 2.2 billion).  Currently about 30 large networks (WAN) are operating in the country.  Internet is accessible through dial-up lines, namely PSTN.

The impact of crimes related to computer network in India is yet to be felt.  Since internet access is through only one state-controlled service provider, websites offering objectionable material like pornography, child prostitution etc. are filtered or blocked at source.  A number of cases, relating to software piracy have been registered and investigated in the aftermath of major amendments made to Copyrights Act.

Covert intelligence, undercover operations, surveillance etc. may be techniques, accepted as professional compulsions but these have to lead to a legally vetted procedure or compulsory measures.  A comprehensive ‘Data Protection Act’ is pending enactment.  Drafting of a bill for Computer Crimes (Prevention) Act.

The law-makers (democratical by elected Parliament) the law-enforcer (Police), the prosecution system (Public Prosecutor), the Judiciary (Judge) and the correctional service (Prison staff) as five fingers of the plam exert the required grip in ensuring an orderly society needed checks and balances.

            The Republic of India as a Federal set-up comprises of the Union (Central Government) at the top and States (Provincial or State Government – 25).  The Constitution of India (1949), a law of all laws, governs public administration, listing the fundamental rights which in spirit exudes the Human Rights, the Directive Principles which in spirit exudes the economic and social rights and the subjects for governance delineated as “Central list” and ‘State list’ and ‘Concurrent list’.  The ‘law and order’ as a subject comes under ‘State list’ with the centre assisting them monitorily and by guidelines for uniformity.

  1. Indian Penal Code (1860) Penal
  2. Code of Criminal Procedure (1898) (Amended – 1973)
  3. Evidence Act (1872) Evidentiary

Major laws are to conform to the spirit of the articles of the Constitution failing which they are liable to be struck down as ultra virus.  The High Court of States and Supreme Court of the centre having original jurisdictions to intervene and protect the Constitutional guarantees through writs.

Compulsory measures like search and seizure for instance, shall have to conform to the major procedural law, namely the CrPC.  The exercise of drafting a separate bill (draft law) to deal with computer-related crimes or crimes related to computer network has just been completed in India.

Investigation, prosecution or trial, the provisions codified in the ‘Code of Criminal Procedure’ shall prevail.

The salient features relating to the above (Section 91 to 105 of CrPC – chapter VII) comparative analysis of legal systems:

A search warrant is mandatory. As per Article 20(3) of the Constitution; no person accused of an offence can be compelled to be a witness against himself.  The act of compelling the suspect who has the key for encrypted data to make available the data should not be viewed by the court as an infringement of the same.  In such circumstances, the suspect can be only persuaded to cooperate and failing the same court may adversely view the non-cooperation during trial.  No separate compulsory measures to deal with the above situation are available.

All persons who have the right to access data are required to cooperate legally.  Though non-cooperation amounts to an offence u/s 175 IPC or 187 IPC, cooperation is obtained by persuasion and other conflict-resolution mechanisms.

Access to data or informations need elaboration in some respects.  There are also certain communication codified as privileged communications which cannot be compelled by even the courts they can be denied.  Affairs relating to the security of the state and defence related information could not be accessed.  The very act of giving such classified information becomes a punishable offence under Official Secrets Act.  Under

the Banker’s Book Evidence Act, banks are under obligation by Investigator in investigation or court in a legal proceeding.

If any offence is alleged to have been committed by public servants while acting or purporting to act in the discharge of official duty, no court shall take cognizance of such offence except with the previous sanction of the Government.  Either in giving data by persons who have access rights or steps of Investigator to access data considered relevant in respect of criminal investigations.  So long they are construed as bonafide.  No civil/criminal action can be initiated without prior sanction of the Government.  This immunity is granted.  In tackling the crimes related to computer network also related provisions of section 197 CrPC affords certain degree of protection.

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