Cyber Crimes And Digital Evidence In India’s New Criminal Laws
Author: LawSphereX
Category: Criminal Law
Published:
Updated:
CYBER CRIMES AND DIGITAL EVIDENCE IN INDIA’S
NEW CRIMINAL LAWS
Abhineet Ashok Dange, Manikchand Pahade Law College, Aurangabad
INTRODUCTION
In India, on 1st July 2024, new criminal laws were taken into consideration, i. e. , Bharatiya Nyaya Sanhita, 2023, Bharatiya Nagarik Suraksha Sanhita, 2023, and Bharatiya Sakshya Adhiniyam, 2023. These new laws repeal the British-era’s Indian Penal Code of 1860, the Code of Criminal Procedure of 1973, and the Indian Evidence Act of 1872. Early before, we were not expecting cyber crimes to happen as no such technology was developed, and there was no such specific mention of cyber crimes in law. The procedural laws did not mention digital evidence, i. e. (audio-video recordings). This article thoroughly examines the recent inclusion of Cyber Crimes and Digital Evidence in our new Criminal Laws, specifically Bharatiya Nyaya Sanhita, 2023, Bharatiya Nagarik Suraksha Sanhita, 2023, and Bharatiya Sakshya Adhiniyam, 2023.
DEFINING CYBER-CRIMES: Cybercrime can be broadly defined as any criminal activity that involves technology, i. e. computer, network, internet, etc. This encompasses a wide range of activities, including unauthorised access to computer systems, theft of personal information, fraudulent online activities, and harassment or intimidation conducted through digital channels. KEY TYPES OF CYBER CRIMES IN INDIA:
1. Financial crimes
Online banking fraud • Credit card fraud, etc
2 Intellectual Property Theft
Copyright infringement • Piracy • Patent infringement, etc
3 Cyber Extortion
Ransomware attacks • Data extortion, etc
4 Cyber Terrorism
Attacks on critical infrastructure • Disruption of government services, etc
5 Cyber Stalking and Harassment
Online harassment • Cyberbullying • Defamation, etc
PENALISING CYBERCRIMES AND FALSE INFORMATION: Cybercrimes have been categorised as organised crimes under section 111 of the new penal code, i. e. Bharatiya Nyaya Sanhita, 2023, Citing Section 197(d) of the BNS, making 'false information' a crime. Such contraventions are numerous, and hence, it would be prudent to give those broad meanings some form of legally binding effect by defining what constitutes a certain formation. How it will be framed for social media platforms and e-commerce remains to be seen. However, it is unclear how this liability will shake down equally-uncertain. What they will have to do is change parts of their User Agreements and Terms & Conditions (let alone Community Guidelines) and make adjustments in the way monitoring systems work in order just to protect themselves from any kind of liability for bad or illegal behaviour committed by users.
ROLE OF DIGITAL EVIDENCE IN CYBERCRIME: Early before, there was no such possibility of cybercrime, so there was no such term of digital evidence, but now, if any cybercrime happens, digital evidence is a must, and not only in cybercrime but in any other crime, digital evidence can play a vital role in giving a clear vision of the instance. As technology advances daily, digital evidence can easily be edited and forged or fabricated. It's important to note that Sections 335, 336, 337, and 340 of BNS delineate the definitions of false documents and false electronic documents, as well as the consequences of making and using them. These actions are punishable by law. Bharatiya Nagarik Suraksha Sanhita, 2023, clarifies the jurisdiction in fraud and cheating cases involving electronic modes of deception.
The Bharatiya Sakshya Adhiniyam, 2023 expands the definition of document to include electronic and digital records and includes examples of such records. Now, where digital evidence is involved, it empowers court and police officers to issue the summons. It also expands the definition of documentary evidence to include electronic/digital records. UTILISATION OF DIGITAL EVIDENCE IN NEW CRIMINAL LAWS: Bharatiya Sakshya Adhiniyam, 2023, classifies electronic evidence as primary evidence when produced from proper custody. Taking into account the potential risks of manipulation of evidence that can impact future events and procedures, the mandatory inclusion of audio-video recording in search and seizure proceedings is an important and great addition to BNSS and BSA. It will allow the procedure to be fair, and the risk of ambiguity in the procedure will be decreased to a great extent.
In accordance with BNSS section 105, the scope of audio-video recording during search and seizure encompasses various aspects, including the compilation of a list of seized items and the recording of witness signatures. Transparency in search and seizure proceedings is likely to be a deterrent against the fabrication of evidence and ensure the presence of independent witnesses in these proceedings. This section requires that this audio video recording be submitted before the district magistrate, sub-district magistrate or judicial magistrate of the first class without delay. Similarly, clause 176(3), the requirement for videography of the process of collection of forensic evidence is another move towards greater transparency and accountability in evidence gathering and a safeguard against irregularities and manipulation.
Clause 176(1) provides an option for audio-video recording of any statement made during the police investigation. In BNSS, it is mandatory to have a videography of a police statement and an audiovideo recording of statements before the magistrate for certain vulnerable victims with physical or mental disabilities under sections 173 (1) and 183 (6) of BNSS. CASE LAW: Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), In this case, electronic evidence was presented in a dispute about an election. There were concerns about whether this evidence was real and trustworthy. The Supreme Court made it clear that for electronic evidence to be accepted, its original source and authenticity must be proven. Section 65B of the Indian Evidence Act and now section 63 of BSA defines electronic records and outlines the rules for their admissibility.
It states that any electronic record can be presented in court in its original form or as a copy, but certain procedures must be followed to ensure its authenticity. The ruling is crucial for the admissibility of electronic evidence in Indian courts. It provides clear guidance on legal procedures for presenting such evidence, including emails, SMS messages, WhatsApp chats, CCTV footage, and more. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal is a landmark case that has significantly impacted the legal landscape surrounding electronic evidence in India. It provides clear guidelines for the admissibility of such evidence, ensuring fair and just legal proceedings. It set a precedent for the use of digital evidence in criminal investigations and prosecutions.
CONCLUSION
The new criminal laws, i.e. Bharatiya Nyaya Sanhita, 2023, Bharatiya Nagarik Suraksha Sanhita, 2023, and Bharatiya Sakshya Adhiniyam, 2023, have made a significant change to our judicial system. The new additions to the laws are very helpful, and the main aim is to give justice rather than punishment. The inclusion of cybercrime and digital evidence in the new laws is going to be very beneficial for the public as in the modern era. This addition is for modernised crime, i.e. Online banking fraud, Copyright infringement, Data extortion, etc., and will decrease cybercrime to a great extent. And help the judicial system to give justice transparently and without any obstructions.
REFERENCES
I. ADMISSIBILITY OF ELECTRONIC EVIDENCE UNDER THE INDIAN EVIDENCE ACT, 1872 articles.manupatra.com I. The impact of India's new criminal codes on digital businesses - Lexology lexology.com I. Three New Criminal Laws -KPMG India kpmg.com II. Decoding BNS, BNSS, and BSA by Varun Sini, IRS III. New criminal laws: New criminal laws hinge on technology and forensic throughout all stages - The Economic Times economictimes.indiatimes.com