Jurisdiction and Investigation of Cyber Crimes

Introduction:

Cyber Law has recently amassed a new craze around it and encouraged a new area of research. In the tech-savvy world, internet and e-commerce have acquired a conspicuous position. This cyber-craze and cash through the optical wires has brought a revolution. With advancement in technology and science, the criminals have also found new ways spreading terror and misuse the trust of the people in the world of web and wires. The modus operandi of the new age criminals is often associated and involves crime on the web or through the net. Preparation of plan in one part of the world and its execution in the other is the unique aspect of this pattern of offense. But this complexity of crime has bred great and new challenges to the judicial system.

 Challenges:

Very difficult monitoring and inaccessibility to various anonymous sources makes it a tough task for the entire legal set-up to catch the culprits. The catena of offences that are carried on by the cyber-criminals like phishing, hacking, cyber-bulling, child pornography, cyber-stalking, carding, cyber-vandalism, online gambling, cyber-terrorism and many more, make the platform prone to becoming an easy handle for various criminals, with which they can spread disturbance with just one click. Over the time, crimes through the net have become the most tensed issue and have resulted into various cyber laws all over the world.

The main concern with this mode of crime is the difficulty in tracing its source and restricting its impact. The way the internet has reduced the vastness of the world to a global village and virtually vanished the country-borders has become more alarming than appreciating due to the more misuse than its use.  The problem of jurisdiction is turned out to be the most controversial question for the ones responsible for dealing with the complaints of cyber crimes.

With the emergence of technology, the misuse of technology has also expanded to its optimum level and then there arises a need of strict statutory laws to regulate the criminal activities in the cyber world and to protect technological advancement system. The world 1st computer specific law was enacted in the year 1970 by the German State of Hesse in the form of ‘Data Protection Act, 1970’ with the advancement of cyber technology. It is under these circumstances Indian parliament passed its “Information Technology Act, 2000” on 17th October to have its exhaustive law to deal with the technology in the field of e-commerce, e-governance, e-banking as well as penalties and punishments in the field of cyber crimes.[1]

Jurisdiction refers to the extent to which the authority of the court extends. Jurisdiction, which deals with the scope of a material area – defined by geographical measurements, is largely territorial covering the lands, seas, rivers, mountains and the oceans. It is very difficult to cover the cyberspace in it. Covering and adjudicating what is abstract is always a matter of dispute.

However, the Permanent Court of International Justice in SS Lotus Case (France v. Turkey)[2] held that, “the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.” In India, the concept of cyber law and the offence of cyber crime are new and witnessed only few policies and laws. The main provisions, which deal with the jurisdiction of cyber law in the country, are Section 75 of the Information Technology Act, 1970, which implies that the Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence involves a computer, computer system or computer network located in India. Section 188 provides that even if a citizen of India outside the country commits the offence, the same is subject to the jurisdiction of courts in India. In India, jurisdiction in cyberspace is similar to jurisdiction as that relating to traditional crimes and the concept of subjective territoriality will prevail.  Also, Section 178 of Code of Criminal Procedure, 1973 deals with the crime or part of it committed in India and Section 179[3], CPC, 1973 deals with the consequences of crime in the Indian Territory. Section 3 and 4 of Indian Penal Code, 1860 deals with the extra-jurisdictional power given to the Indian Courts which provide a great aid in interpreting matters pertaining to deciding the jurisdiction of Indian courts. The Delhi High Court in SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra[4] opined that the concept of consequence and cause of action extends jurisdiction but a conflicting situation arises where there is no defined regulation at one of the places. The Supreme Court has recognized the need of the judiciary to interpret a statute by making allowances for any relevant technological change that has occurred.[5]

Also, the restricted access to the computer systems and data bases, less technical expertise in the police department and the privacy rights of the people create problems of investigating the crime and tracing the criminals.

 Conclusion:

The entire world of web is abstract, hence the investigation of the hidden and hood-covered offence is nearly impossible with billions of computer-devices, accountability and easy camouflaging of identity of the perpetrator crime, to deal with a more advanced law is needed urgently!!!

[1]     Dhawesh Pahuja, Cyber Crimes and The Law, Legal India (July 17, 2011),  http://www.legalindia.com/cyber-crimes-and-the-law/

[2] SS Lotus Case (France v. Turkey), PCIJ Ser A (1927), No. 9

[3] When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

[4] Suit No. 1279/2001

[5] SIL Import v. Exim Aides Silk Importers, (1999) 4 SCC 567

Authored by Sonal Vyas | Edited by Aishwarya Himanshu Singh

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