Cyber Forensic Investigation in India

INTRODUCTION

In India the conviction rate of offenders is 46.9%[1] which means that for every 100 criminals, only around 47 of them are convicted and the rest 53 walk scot-free. This is because for punishment of crimes in India there is a standard of requirements which are necessary to prevent arbitrary conviction, but these standards have resulted in a greater possibility of acquittal than punishment. When we consider cybercrimes the conviction rate is even lower at 23.9%[2]. With the advent of technology and digitalization, traditional forensic methods are challenged and are increasingly rendered unhelpful. Identification, collection, and preservation of digital evidence is highly difficult considering the intangible nature of digital evidence and the vulnerable structure of the internet[3]. Without proper legislations and enforcement, criminals would be encouraged to carry out cybercrimes and the general public would lose faith in the Indian judiciary. To address these concerns, amendments were made to the Indian Evidence Act of 1872 and Indian Penal Code of 1860, and the Information Technology Act of 2000 was enacted. In this paper, the sufficiency of Cyber Forensic legislations and the admissibility of Cyber Forensic evidence will be discussed.

RESEARCH QUESTIONS

1. Whether India’s legal provisions regarding Cyber Forensics are relevant to contemporary times?

2. Whether digital evidence has evidentiary value and can be admitted in Indian courts of law?

RESEARCH PROBLEM/OBJECTIVES

1. Determine the relevancy of Cyber Forensic law in India in contemporary times.

2. Determine the evidentiary value of digital evidence and their admissibility in Indian courts through the analysis of various case laws.

METHOD OF STUDY

Doctrinal research method to be adopted to critically evaluate the various case laws and legal provisions so as to determine whether Indian Laws are relevant to contemporary times and discuss the evidentiary value and admissibility of digital evidence in Indian Courts.

ANALYSIS/CHAPTERIZATION

LEGAL PROVISIONS

For a crime to be investigated under Section 66 of the Information Technology Act of 2000 as a cybercrime it must be an act mentioned in Section 43 of the same Act and must also be done with dishonest and fraudulent intentions provided for in Sections 24 and 25 of the Indian Penal Code of 1860. If the act is not one mentioned in Section 43 of the IT Act of 2000, then it falls short of being a cybercrime and is investigated as an offence under the IPC.[4] In the case of Sharat Babu Digumarti vs. Government of NCT of Delhi, the accused was charged under both the IT Act and IPC but was later tried under IT Act only as the IT Act was held to have precedence over IPC. The moment a computer is used to commit a crime under the IPC and IT Act it becomes a cybercrime and IT Act has precedence.[5] This causes confusion which may result in different punishments for the same crime just because a computer was used.

EVIDENTIARY VALUE

FORENSIC ASPECT

Admission of evidence into courts requires that the information submitted be factual and requires a witness to explain and answer questions regarding the facts. Hence the first half of the process is establishing the science and the second half is communication of the science.[6] Digitalization caused a paradigm shift in forensics from the document paradigm to the digital paradigm. With regards to a physical document, it must first be acquired. The physical location and the physical existence of the document are not questioned. With regards to digital evidence this is not the case, it is not easy to find the actual location of a file and it is difficult for a layman to understand.

After acquisition one must identify and interpret the document for evaluation. For example, if the document is written in French, then it must be translated to be interpreted. When it comes to computers, the files are binary and often require conversion to a human readable format.[7] Only after it is converted can it be evaluated and hence admitted into the court of law. For all these steps it is necessary for a person trained in the science to carry out the steps of acquisition, identification, and evaluation before admission into the court. Hence both technical and legal expertise is required.

LEGAL ASPECT

Section 3 of the Indian Evidence Act, 1872 was amended and the phrase “All documents” was changed to “All documents including electronic records” [8] and Section 65A and 65B were inserted to include electronic evidence. Section 65B contains provisions for certification of digital evidence. In Anvar P.V vs P.K.Basheer & Ors., (2014) the Apex Court held that it is mandatory for an electronic evidence to be certified under Section 65B in order to be admissible and considered evidentiarily valuable[9] overruling the judgement made in State (N.C.T. Of Delhi) vs. Navjot Sandhu@ Afsan Guru, (2005) where it had stated that it could be admitted as secondary evidence under Section 63 and Section 65[10]. In a subsequent case the Supreme Court held that the certificate under Section 65B could only be furnished by a competent person who can produce such certificate and can control such device, with some exceptions as judicially required[11].

CONCLUSION AND RECOMMENDATIONS

With cybercrimes on the increase and inability of traditional methods of forensic science to render justice, reliance on digital evidence and digital investigation tools will only increase. The provisions of the Indian Penal Code, 1860 were amended to include cybercrimes however, it is redundant with certain provisions of the Information Technology Act, 2000 for example Section 66D of the IT Act deals with cheating by personation on a computer of communication device[12] while Section 419 of the IPC provides for cheating by personation[13]. This may cause confusion among courts and there are chances for discrepancies in punishment of crimes merely because it did or did not involve a computer. All digital evidence should be submitted for certification under Section 65B of the Indian Evidence Act, 1872 to be admissible into the court and such certification is to only be done by a competent authority. Although legislations and the Indian judiciary are taking great steps trying to catch up with technological advancements, there is a great need for a sound techno-legal framework with steadfast enforcement. Some recommendations would be:

· Consider separate legislations for each cyber related offence as adopted by the United States to avoid discrepancy and confusion[14]

· Proper training of cyber forensic experts and establishment of a uniform procedure of evaluation of digital evidence for admissibility into court.

REFERENCES

[1] Rakesh Dubbudu, Conviction Rate of Sec 498-A cases is among the lowest of all IPC Crimes, Crime in

India Report, National Crime Records Bureau, (2017).

[2] Crime in India 2014 Compendium, National Crime Records Bureau, Ministry of Home Affairs.

[3] Ramanuj, Cyber Forensics: law and practice in India, IPLEADERS, (2014) available at https://blog.ipleaders.in/cyber-forensics-law-and-practice-in-india/.

[4] Shuvangi, Future of Digital Forensics In India: An Analysis, LEGALSERVICEINDIA.COM available at https://www.legalserviceindia.com/legal/article-4896-future-of-digital-forensics-in-india-an-analysis.html.

[5] Sharat Babu Digumarti vs. Government of NCT of Delhi, AIR 2017 SC 150.

[6] D.S. Jadhav & Dr. S. K. Patil, Computer Forensic: An Evidence of Various Analytical Tools for Legal Constitution, International Journal of Advance Innovations, Thoughts & Ideas, 1 (2012).

[7] Ibid.

[8] Indian Evidence Act, 1872 § 3, 65A & 65B.

[9] Anvar P.V vs. P.K.Basheer & Ors., (2014) 10 SCC 473.

[10] State (N.C.T. Of Delhi) vs. Navjot Sandhu@ Afsan Guru, (2005) 11 SCC 600.

[11] Shafi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801.

[12] Information Technology Act, 2000 § 66D.

[13] Indian Penal Code, 1870 § 419.

[14] Abanti Bose, Analyzing the current scenario of safeguards against cyber-crimes, IPLEADERS, (2021) available at https://blog.ipleaders.in/analyzing-current-scenario-safeguards-cyber-crimes/.