INVESTIGATION OF CYBER CRIMES IN INDIA1

Shiv Raman
Assistant Prof.
Amity Law School,
Gurgaon

The 21st century is technology driven era. Advancement in the field of

information technology has changed our life. This information technology is
still in its age of infancy. Today 93% of all the world data is in digital format.
There are about 972, 828, 001 internet users in the world. In India, they are
amounted to 39, 200,000. In the next 10 to 20 years, it would be impossible to
do anything without information technology because of its usefulness and
consequent dependence upon it. For example, in our Constitution, Article 39 of
Directive Principles of State Policy mandates the promotion of justice on the
basis of equal opportunity, which implies the concept of justice at the doorstep
and of speedy trial. This dream can become a living reality by equipping courts
with electronic devices which will make it possible to assist courts through
electronic devices with electronic petition filing, video-addressing, video-
conferencing and thereby keeping a check on multiplying litigation. It is said
that justice delayed is justice denied but with innovation and information
technology’s application to law it would be possible for the judiciary to speed
up the dispensing of justice. India is globalizing its economy. Information
services in information technology are starting to have strong effect on the
national economy, trade and commerce.

Today, world is undergoing second revolution. Every aspect of human life is

being touched by information technology. Every day’s activities are affected in
form, content and time by the computer. Computerization is replacing human
tasks. Computers are used not only extensively to perform the industrial and
economic functions of society but are also used to perform many functions
upon which survival of human life depends. Computer oversees medical
treatment, conducts air traffic control, manages offices, runs businesses,
controls defense system of the nations, and regulates the transport system and
reservations. Computers are extensively being used for crime detection.
Interestingly computers are now even being used to repel mosquitoes.

1
Shiv Raman, Assistant Professor, Amity Law School, Gurgaon.
Email- advocateshivraman2007@rediffmail.com
Every technological development also has got its flip side too. Information
Technology is like a double edged weapon. The traits like speed that made the
computer, information technology, Internet and World Wide Web popular, are
equally responsible for the misuse of the same in the hands of anti-social
elements. Criminal minds are quick to harness the fast, easier and cheap
medium for their illegal and immoral pursuits. It is a deadliest epidemic face by
the world in this millennium. A modern thief can steal more with a computer
than with a gun. Tomorrow’s terrorist may be able to do more damage with a
keyboard than with a bomb. From software piracy in China to virtual money
laundering in the South Pacific, across Asia criminals have been quick to cash
on the new opportunities offered by the Internet. This technology has not only
given rise to a new wave of ‘cyber crimes’ but also considerably widened the
scope and enhanced the lethal striking capability of the ‘traditional crimes’.

One of the greatest lacunae of this field is the absence of a set of

comprehensive law anywhere in the world. Further it the growth ratio of
Internet and cyber-law is also not proportional. The bottom line is that the
internet and the Information Technology are like technological ‘tsunami’ bound
to sweep every woman and man off the floor and no nation in the earth can
either ignore or afford to go slow on these. Therefore, it is better to be prepared
in advance to utilize the information technology to one’s benefit, than to be left
on the wrong side of the digital divide. Investigation of Cyber Crimes

The law enforcement agencies were bound by some ground rules before the
evolution of cyber crimes. There were established procedures for investigation
and prosecution of all types of crimes. In case of traditional crimes, large
number of physical evidence is generally available at the scene of crime.
Collection of such physical evidence required at lot of common sense and a
little technical knowledge. Forensic help could also be provided since
laboratory examination procedures are fully established. The crime scene is
also confined to a relatively smaller place.

Today, with the advancement of technology, crimes have become more complex
and criminals more sophisticated as their modus operandi is incomparable to
the traditional investigation methods. Information technology provides an
opportunity to the criminals to commit traditional crimes like cheating, fraud,
theft, credit card frauds, embezzlement of bank deposits, industrial and
political espionage, cyber terrorism etc. and at the same time it helps in
committing nontraditional and information technology related crimes like
attacks against the security of critical infrastructures like tale communication,
banking and on emergency services. Such crimes may be committed through
computer networks across the national borders, affecting not only individuals,
but they may instead result in compromising the security and the economy of
the nation. In this information technology age, the criminal investigation
procedures require radical changes to handle the errant computer users
effectively. Today, the crime investigators are faced with the problem of
collection of appropriate evidence in computer storage media and data
communication system. It requires a cohesive well trained and well equipped
force of investigators operating and co-coordinating at national and
international level. This change in crime scenario would also necessitate major
changes in the related forensic procedures as well as in the outlook of
judiciary. Present era of fast changing technologies well soon derail the
criminal justice system and make the whole exercise futile, if appropriate steps
are not taken urgently. The law enforcement agencies throughout the world are
mainly facing three types of problems in their fight against the cyber crimes.

One of the greatest lacunae of this field is the absence of a set of

comprehensive law anywhere in the world. Further it the growth ratio of
Internet and cyber-law is also not proportional. The bottom line is that the
internet and the Information Technology are like technological ‘tsunami’ bound
to sweep every woman and man off the floor and no nation in the earth can
either ignore or afford to go slow on these. Therefore, it is better to be prepared
in advance to utilize the information technology to one’s benefit, than to be left
on the wrong side of the digital divide. Investigation of Cyber Crimes The law
enforcement agencies were bound by some ground rules before the evolution of
cyber crimes. There were established procedures for investigation and
prosecution of all types of crimes. In case of traditional crimes, large number of
physical evidence is generally available at the scene of crime. Collection of such
physical evidence required at lot of common sense and a little technical
knowledge. Forensic help could also be provided since laboratory examination
procedures are fully established. The crime scene is also confined to a relatively
smaller place. Today, with the advancement of technology, crimes have become
more complex and criminals more sophisticated as their modus operandi is
incomparable to the traditional investigation methods. Information technology
provides and opportunity to the criminals to commit traditional crimes like
cheating, fraud, theft, credit card frauds, embezzlement of bank deposits,
industrial and political espionage, cyber terrorism etc. and at the same time it
helps in committing nontraditional and information technology related crimes
like attacks against the security of critical infrastructures like tale
communication, banking and on emergency services. Such crimes may be
committed through computer networks across the national borders, affecting
not only individuals, but they may instead result in compromising the security
and the economy of the nation. In this information technology age, the criminal
investigation procedures require radical changes to handle the errant computer
users effectively. Today, the crime investigators are faced with the problem of
collection of appropriate evidence in computer storage media and data
communication system. It requires a cohesive well trained and well equipped
force of investigators operating and co-coordinating at national and
international level. This change in crime scenario would also necessitate major
changes in the related forensic procedures as well as in the outlook of
judiciary. Present era of fast changing technologies well soon derail the
criminal justice system and make the whole exercise futile, if appropriate steps
are not taken urgently. The law enforcement agencies throughout the world are
mainly facing three types of problems in their fight against the cyber crimes.

from has parent country only when the same facts also constitute an offence in
that country. For example, pornography is not illegal in Amsterdam (Holland),
any person transmitting obscene material in India can not be brought to India
and tried under the I.T. Act of 2000 despite the same being an offence here,.
Gambling and obscenity laws provide criminal sanctions of individual within
their jurisdiction. For example, if the person placing the bet and the bookie is
in a country such as the UK where gambling on cricket is legal, and if the bet is
placed from a computer in India how can get police department effectively act
on this crime in India? The extradition treaties are not generally there. Even
when there is any such extradition treaty, offender can be extradited to India
only when the same facts also constituted an offence in other legal system and
too after the testing of facts and offence by the legal systems of both the
countries. It will be a protracted battle. A number of Kashmiri terrorists are
hacking Indian sites from Pakistan. Due to political differences least
cooperation is expectable from Pakistan. It has different definitions of crime.
Any act of cyber terrorism will be offence in Indian but they are categorized as
freedom fighters by Pakistan. So they cannot be brought to book. A pertinent
question arises whether a judgment passed by an Indian court in matter
relating to a person/company situated abroad but duly covered under the
provisions of the I.T. Act of 2000 would be acceptable to foreign courts. If the
judgments delivered by Indian Court can not be enforced then whole exercise of
trial and punishments would turn out to be futile if we go by recently U.S.
Court approach in Yahoo Inc. France Naxi Memorabilia dot com case. The
answer will be disturbing ‘no’. U.S. Court approach in Yahoo Inc. France Naxi
Memorabilia dot com case has highlighted the legal and practical difficulties in
nailing the criminal in a foreign country. Most of the Internet Service Providers
are stationed in U.S. A. Hence, this decision is bound to affect the
interpretation and implementation of Section 75 of the I.T. Act of 2000. It
shows that in the absence of internationally accepted jurisdiction treaty or
convention, the desire to bring the cyber criminal book from any corner of the
world is just a dream which is far from reality. The problem will be more acute
as India is still not the signatory of the International Cyber Crime Treaty, It
does not enjoy the privileges accorded to signatory nations in the detection
investigation and prosecution of cyber crimes. Legal Problems Cyber crimes
have become a global menace and is no longer the problem affecting only the
developed countries. Therefore, all the nations should treat this menace
seriously. There is no universally accepted definition of cyber crime. The cyber
crime in a country may not be termed as a cyber crime in another. There are
only 13 countries that have cyber crime laws. This puts enormous pressure on
the law enforcement agencies in obtaining international co-operation. The
absence of such laws is like shielding the criminals from the legal provisions
and providing them safe haven to continue with their evil deeds. Further, the
rate at which cyber crimes are increasing in the world, it is necessary for the
criminal justice to demonstrate that quick and severe punishment would be
awarded to those involved in such criminal activities. What we need is the rule
of law at an international level and a universal legal framework which is equal
to the worldwide reach of internet. It is therefore, necessary to make
appropriate dynamic laws pertaining to cyber crime. It cannot take the usual
snail’s pace of law making since the technology changes at a very fast rate. The
laws made today for yesterday technology might become outdated by the time
they are checked. It is submitted that universally accepted definition of cyber
crime shall be made and an international treaty on cyber crime shall be made
and shall be signed by the entire countries of the world in order to tackle
menace of cyber crime.

To effectively combat the cyber crime, it is not sufficient to successfully

investigate the crime and nab the criminal, but more important is to prosecute
and administer justice, according to the law of land. This requires an effective
legal frame work, which fully supports the detection and prosecution of cyber
criminals. The traditional techniques for investigation of cyber crime and the
prosecution procedures are inadequate. The judiciary must also appreciate the
intricacies of the digital evidence that is collected and presented in the courts
of law, in spite of the technical and operational hurdles the investigator faces.
(a) Victims and Witnesses’ Unawareness The first impediment that is faced by
investigators is of securing the co-operation of complainants and witnesses. It
is now well-documented that the victims of crimes of this nature are reluctant
to report them to the police. Ernst and Young found in its 8th Global Survey of
business fraud, that only one quarter of frauds were reported to the police and
only 28% of these respondents were satisfied with the resultant investigation.
Some of the reasons given by the respondents of an Australian survey
conducted by Deakin University in Melbourne on fraud incidents against
businesses in Victoria for not reporting fraud to the police included a belief
that the matter was not serious enough to warrant police attention, a fear of
consumer backlash, bad publicity, inadequate proof and a reluctance to devote
time and resources to prosecuting the matter. In the case of cyber crime, this
last explanation is of great significance. As the time and resources needed to
prosecute an offender in another jurisdiction can be considerably very high.
The result is that investigators may face considerable barriers in securing
cooperation from victims and witnesses especially those located in other
countries. Unless and until the people are not made aware of this epidemic it is
impossible to tackle this problem. (b) Identifying Suspects Another problem
faced by cyber crime investigators is the identification of suspects.
Occasionally, this can lead to considerable problems when the wrong person is
arrested. Digital technologies enable people to disguise their identity in a wide
range of ways making it difficult to know with certainty as to who was using a
computer from which illegal communications came. This problem is more
prevalent in business environment where multiple people may have access to a
personal computer and where passwords are known or shared, than in private
home where it can often be assumed who the person was and who was using
the computer because of circumstantial evidence. On-line technologies make it
relatively simple to disguise one’s true identity, to misrepresent one’s identity
or to make use of someone else’s identity, e-mailing services can be used to
disguise one’s identity when sending e-mail by stripping them to identifying
information and allocating an anonymous identifier, sometime encrypted for
added security. By using several Emailing services users can make their
communications almost impossible to follow. Anonymity can also be achieved
in cyberspace using less technologically complex means simply purchasing a
pre-paid Internet Service Provider and renting a telephone line from a carrier,
each in a false name provides an easy means of achieving anonymity. This
problem of identifying suspects may be resolved by traditional investigative
techniques, such as the use of video surveillance or gathering indirect
circumstantial evidence that locates accused at the terminal at a particular
time and day. However the use of intrusive surveillance is not always
successful with attention having to be paid to human rights issues and legal
privileges This problem may be also solved by the use of biometric means of
identification. At present few computers have biometric user authentication
systems such as fingerprint scanner when logging on. When they become more
widespread, problems of identification may be reduced. DNA samples which
can be gathered from keyboards may be used to identity an individual with a
particular computer in some cases. Technical Problems Technical challenges
thwarting the efforts of law enforcement agencies ability to catch and prosecute
on line offenders. Investigating the Internet crimes, e.g., hacking of a website,
staling data stored in computers, exchanges of pornographic material,
espionage, blackmailing e-mails etc, involves identification of the person who
initiated the communication. Locating and Securing Relevant Material
Considerable difficulties arise in locating and securing electronic evidence as
the mere act of switching on or off a computer may alter critical evidence and
associated time and date records. It is also necessary to search through vast
quantities of data in order to locate the information being sought. Today’s cyber
investigators are faced with many problems because digital evidence is highly
fragile, bits are easier to temper than paper, can easily be altered, manipulated
and destroyed. So chain of custody of these needs is to be maintained and all
digital evidence need to be authenticated. Difficult problems arise in obtaining
digital evidence in cyber crime cases, although in some ways computers have
made the process easier through the ability to conduct searches of hard drives
remotely via the Internet. Some of the main difficulties, however, relate to
obtaining permission to conduct such a search, securing the relevant access
device such as a password, decrypting data that have been encrypted, and
imaging a hard drive without interfering with the evidence. There is also the
practical problem of conducting searches quickly so that data cannot be
removed. Problems of Encryption A difficult problem faced by cyber crime
investigators is concerning the data that have been encrypted by accused who
refuse to provide the decryption key or password. An illustration of the use of
strong encryption by a criminal organization was discovered during ‘Operation
Cathedral’ by police in 1998, which led to the largest ever global seizure of
pedophile material. This involved police in 15 countries who uncovered the
activities of the Wonderland (sic) Club, an international network with members
in Europe, North America, and Australia who used the Internet to download
and exchange child pornography including real time video images. The Club
used a secure network with regularly changed passwords and encrypted
content. In Europe alone, over 750, 000 images were recovered from
computers, along, with over 750 CDs and 1,300 videos and 3,400 floppy disks.
The encryption used was able to be overcome because one member of the club
cooperated with police and provided access to the files. This led to
approximately 100 arrests around the world in September 1998. In order to
decrypt data, one method is to install a key logging program onto a computer
that will capture the password used for decryption. The installation of such a
program of course must be done without the knowledge of the accused. This
may cause legal complication such as it amounts to interference with right to
privacy, and a special warrant needs to be obtained for this. In one famous
case in the United States, evidence obtained in this way was challenged on the
grounds that the key logger involved the illegal interception of wire
communications that requires a special warrant. It was held, however that the
key logger the computer’s modem was not connected thus excluding any
interception of telecommunications. If all else fails, investigators may seek to
break encryption codes, although this is difficult, time consuming and costly
and would be inappropriate in all the cases. The Australian Federal Police, for
example, has seen an exponential increase in the size of data storage system
that the required to be analyzed during investigations. Where a law
enforcement examination of a computer hard drive in 1990 involved 50,000
pages of text, a contemporary examination of the same would involve
approximately 5 to 50 million pages of text. This increase in investigative
capacity has created considerable resources implications for police that will no
doubt increase in the years to come. Conclusion and Suggestions The
increasing popularly and dependency upon internet, www and information
technology and the vulnerability of personal data to criminal access makes
everyone the easiest target for a range of culpable crimes. According to Justice
Yatindra Singh “regulating cyber space is daunting task of corpus juries of any
country. Computer, internet and cyberspace-together known as Information
Technology has posed new problems in jurisprudence. I have shown
inadequacy of law while dealing with the information technology, changes
induced by the information technology in the way we live, perceive and do
business”. The existing laws were designed, having geographical location,
tangible medium and physical environment in view. These laws are not suited
to faceless, borderless and paperless cyberspace. This required for a new legal
regime which would provide solutions to the issues generated y this new
technology. So it is submitted that after only operated when identifying the
cyber crime universally accepted definitions of these shall be made and cyber
penal code shall be enacted which incorporate all these offences and an
international treaty on cyber crime shall be made and shall be signed by the
entire nations of the world in order to tackle the menace of cyber crime. Section
75 of the Information Technology Act extends the influence of this Act over the
entire world keeping in view the nature of cyber crimes. As we have discussed
earlier, difficulties arise in implementing extra-territorial jurisdiction. So, it is
submitted that jurisdiction of IT Act shall not extend to those cases where the
accused and victims are foreigners and the offence is committed outside the
territory of India. It is submitted that the jurisdictional problems shall be
resolved through the international cooperation taking in view the global impact
of cyber crimes. It is an urgent need that the tardy procedures of letter-regatory
under Sections 166- A, 166B and 188 of the Code of Criminal Procedure shall
be removed by making suitable amendment in the Code of Criminal Procedure.
It is evident from number of studies conducted by various agencies that victims
of cyber crime are reluctant to report them to the police and the witnesses are
non cooperative. So it is suggested that people shall be made aware about the
gravity of these crimes so that the people (victim) shall inform the matter to the
police as soon as the crime is committed. It is submitted that for the
identification of suspects the computers (at least computer owned by
institutions and companies) shall be lodged with biometric use authentication
system.