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Published : November 07, 2012 | Author : JuhiTalati
Category : Cyber Law | Total Views : 6724 | Rating :

Juhi Mehul Talati

The era of modernization where the working without internet almost handicaps the core functioning at every level. Cyber space also played necessary role in easy & better functioning of trade & commerce to the society. The present paper emphasize upon the fact that Cyber Crimes are international crimes. Prevention and detection of such crimes involves international investigation. Cyber Crime in today’s era plays an impugn role as a participant in the Crime committed, where by in such a situation issue related to jurisdiction handicaps the Government to take any kind of concrete measures against such accused. There are various International Conventions such as European Convention on Cyber Crimes, G7 & G8 groups etc. India has provided particular performance of law when such jurisdictional issue arises through Information Technology Act, 2000. Every country have different unit for resolving the issues related to Cyber crime, such as FBI in U.S.A, C.B.I in India etc. The jurisdictional issues have very widely been highlighted in each of the conventions and respective Act of the countries because in absence of jurisdiction clarity the accused manages to avoid conviction due to loop holes of law.

Cyber space in its true sense comprises of multiple functioning system. Basic understanding of society may restrict it to certain social networking phenomenon, but its functions are wider in scope, it is almost impossible to govern trade and commerce, industrialization, banking system without Internet. Since ages we have observed Use Misuse relationship has created social imparities. In case of internet we face same lack of correspondence.

Cyber Crimes are one of the fastest growing crimes in the world. It is noteworthy that first cyber crime took place in the year of 1820. It has gained momentum in India in the recent past. In the present era, where as internet has gained important role in effective functioning of trade & commerce, it suffice basic as well as necessary requirements to Industrial units MNCs etc., also providing Modern Banking System. But theirs a class of people who misuses the same for their personal interest, and hampers the very objective of Cyber space as boon to the society. Thus in India Information Technology Act,2000 (IT act 2000) takes into consideration of such offences, but at certain instances it fails due to loop holes of law.

What is Cyber Crime?
Crimes committed with the use of computers or relating to computers, especially through internet. Universally, Cyber Crime is understood as “an unlawful act where in the computer is either a tool or a target or both.

1.2 Cyber Crime cannot be territorial but Global:
Internet is network of networks as we have seen earlier. It has wide range of functioning, limiting it to physical boundaries is not possible. Thus even in case of cyber crime their might be a possibility where extra territorial jurisdiction arises.

The Doctrine of ubiquity aims determining the place of commission. According to this doctrine the offence will be considered to have been committed in its entirety within a country’s jurisdiction, if one of the constituent element of the offence or the ultimate result occurred within the country’s territorial limit. Common Law countries also use effects doctrine in addition to focusing on the physical art. The doctrine locates crime in the territory where the was intended to and actually produced. Territoriality might grant jurisdiction to many countries in single cyber crime.

As we are known that Internet is network of networks, and thus in the field of cyber space no activity is subject to any one particular jurisdiction. In such cases territorial borders have no relevancy. FOR EXAMPLE: A a person who is resident of China, with the use of system of some another country, might commit a crime in India. In such a case what will be the territorial nexus of India? & under what circumstances it can bind such an accused for conviction?

1.3 Jurisdiction: Deceives law due to disparity
Jurisdiction plays vital role for undertaking a successful criminal procedure. Dealing with the issue of cyber crime it has been noted that even when investigating officer succeeds in establishing geographical identity of an accused of cyber crime, officer has to face many other disparities in pursuing his investigation. As such an accused may fall beyond the jurisdictional powers of criminal justice system. In the cyber world where speed is an essence, any attempt to acquire such consent of courts or cooperation will thwart any chance of identifying the culprits and collecting evidence to the crime.

Indian Scenario: Informational Technology Act, 2000
Section 75 of the act exclusively provides for the jurisdiction over an accused committing offence in India through the Internet server accessible outside India. The section states as follows:

“75. Act to apply for offence or contravention committed outside India.

(1) Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality.

(2) For the purposes of sub-section (1), this Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.”

It is not correct to say that the following section has any such difference to the past situation, because no clarity regarding how to bring in to operation the following section. Undertaking of such prosecution and recording of the guilt stands meaningless mainly because of one reason. However, to make this section effective it is necessary for India to sign either of the two contracts fostering international cooperation or bilateral extradition treaties. Thus section 75 has no such impugn effect and can said to be barely on paper and not in execution.

Bilateral extradition:
The word extradition as per Black Law Dictionary is as follows:

“The surrender of a criminal by a foreign state to which he has fled for refuge from prosecution to the state within whose jurisdiction the crime was committed, upon the demand of the latter state, in order that he may be dealt with according to its laws…”

Thus in a simpler way it can be said that a bilateral extradition contract bounds both the party countries to surrender the accused for the crime committed in the country if has been residing or has taken a flee over the contracted country.

Bilateral Extradition treaties: India falls flat due to lack of jurisdiction.
A CBI Special Judge, New Delhi, Talwant Singh at a seminar on 5/10/2012 states that India is yet to sign the extradition treaties with other countries, he also added that :

“Till date, we do not have a single treaty with any other country to extradite a cyber criminal to be brought to India”…. He said India has physical boundaries in terms of its geographic location with other countries, but there was no such ‘boundary’ in cyber world. “Our cyber boundary is not (yet) defined. We have to protect our cyber boundaries also.”

Referring to the number of cases due to cyber crime is not feasible for the government to overlook. About 1,800 cases of internet fraud were reported in 2011, a drop from 2,234 cases reported in 2010. But the CBI's Economic Offences Wing registered only three cases in 2011. Most of the cases relate to payment and e-commerce fraud by way of stolen credit cards.

Reported by The Economic Times on 15 MAR, 2012, 05.15AM IST, ET BUREAU

“About 112 government websites, including those of Bharat Sanchar Nigam Ltd, Planning Commission and Ministry of Finance, were hacked in the last three months, minister of state for communications and IT Sachin Pilot said in the Lok Sabha”

In case where the official website of Mahasrashtra Government was hacked on 20th September Tuesday in the early hours, the site contained detail information about the government departments, circulars, reports and several other topics. The IP address of the hacker was traced to Washington, United States. The Indian Government for the first and only time, the state’s Cyber Crime Investigation Cell (CCIC), sent a Letter of Rogatory (LR, a formal request from a court to a foreign court for assistance) to the US to get more details about the hacker. Since no such information has been availed till date by US government, it will be correct to say that Indian legal system failed to provide with an accurate jurisdictional Performance in absence of such bilateral treaties.

Thus time and again it has been observed that with the growth of Cyberspace, the criminal activities have overcome the physical boundaries of state. In such a case only way left to deal with such and issue is to bring about effective international cooperation. Thus the efforts were initiated at the global level by organizations like OCED, UN, Council of Europe etc. Whereas the convention adopted by the European council institutionalizes the international co-operation with its provisions for establishing 24*7 networks etc.. amongst member countries for the exclusive purpose of providing timely assistance to member countries in preventing and detecting cyber crimes. While it is more shocking that India is not part of any such international treaties which provides no cause of action when the crime is of extraterritorial in nature.

1.4 Conclusion:
Thus it will be fair enough to say that, the efforts made by Indian government are not sufficient enough to curtail the rate of Cyber crime in India in cases of extraterritorial jurisdiction. Though it has provided with the provision to deal beyond the territorial limits but it has not given any framework for its execution. Unless there are concrete steps towards international co-operation in combating terrorism, it is not possible to deal with acts committed on internet by aliens. Thus it will be correct to say that such provisions are not effective and stand forth on paper has no role to play in legal regime.

1. SV Joga Rao, Law of Cyber Crime & Information Technology law, Wadhva & co, Nagpur, First Edition 2004.
2. N.C.Jain, Cyber Crime, Allahbad Law Agency, First Edition 2008.
3. Jagruti Dekavadiya
4. The Economic Times news report http://www.techgig.com/readnews.php?category=Internet&tgnews_link=http://economictimes.feedsportal.com/fy/8av2Evp0XR1531zU/story01.htm&tg_type=rss&tgnews_id=27321
5. The Time of India
# N.C.Jain, Cyber Crime, Allahbad Law Agency, First Edition 2008.
# Definition by Cambridge Dictionary
# SV Joga Rao, Law of Cyber Crime & Information Technology law, Wadhva & co, Nagpur, First Edition 2004
# Information Technology Act,20 00
# N.C.Jain, Cyber Crime, Allahbad Law Agency, First Edition 2008. & “The Time of India Article dated on 19th Sept 2007. http://articles.timesofindia.indiatimes.com/2007-09-19/mumbai/27979238_1_website-accessing-information-technology

Authors contact info - articles The  author can be reached at: juhitalati@legalserviceindia.com

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