Friday, March 25, 2016

Case Laws for CCTV as Best Evidence

CCTV Footage- Primary Evidence- 
CCTV footage directly & immediately stored in hard drive of computer is original media, self generated & created without human intervention- Not secondary evidence & does not require certification u/s 65B of Evidence Act. Kishan Tripathi v. State, Crl.A.108/13, 12.2.16 DHC
-—-–—–-—––—-–—
: Procedure to be followed by Magistrate when CCTV footage and video recordings is produced by police at the time of filing of chargesheet?

           During the hearing of the case, we noticed that the trial Court had not played the DVR (MO-2) and seen the CCTV footages in the presence of the accused. In this regard we propose to dispel misgivings, if any, in the mind of trial Judges about their power to view such evidences. There will be instances where, by the time the case comes up for trial in one court, the electronic record would have had a natural death for want of proper storage facilities in the Court property room. To obviate these difficulties, we direct that, on a petition filed by the prosecution, the Judicial Magistrate, who receives the electronic record, may himself view it and take a back up, without disturbing the integrity of the source, in a CD or Pendrive or any other gadget, by drawing proceedings. The back up can be kept in safe custody by wrapping it in anti static cover and should be sent to the Sessions Court at the time of committal. The present generation of Magistrates are computer savvy and they only require legal sanction for taking a back up. They can avail the service of an expert to assist them in their endeavour. Recently the Supreme Court in Shamsher Singh Verma v. State of Haryana, MANU/SC/1345/2015 : 2015 (12) Scale 597, has held that CD is a 'document' within the meaning of Section 3 of the Indian Evidence Act, 1872. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, MANU/SC/0277/1975 : (1976) 2 SCC 17, the Supreme Court has held that tape records of speeches are 'documents' as defined in Section 3 of the Indian Evidence Act, 1872. This Judgment has been relied upon in Shamsher Singh Verma's case (cited supra). Therefore, we hold that articles like Memory Card, Hard Disc, CD, Pen-drive, etc., containing relevant data in electronic form are 'documents' as defined under Section 3 of the Indian Evidence Act, 1872, albeit, marking them as material objects. After all, nomenclature cannot have the effect of altering the characteristics of an object. The words 'proved' and 'disproved' in section 3 of the Evidence Act have the following common denominator;

    "A fact is said to be proved/disproved when, after considering the matters before it............ "
    (emphasis supplied)

Without viewing the CCTV footage, how can any Court, "consider the matter before it " to conclude that a fact has been 'proved' or 'disproved' ? That apart, Section 62 of the Indian Evidence Act, 1872 states,

    "Primary evidence means the document itself produced for the inspection of the Court."
    (emphasis supplied).

This does not mean that, if a secondary evidence of a document is admitted lawfully, the Court is denuded of the power to inspect it. Such an inference will lead to absurdity. Therefore, we hold that a Court has the power to view CCTV footage and video recordings, be it primary or legally admissible secondary evidence, in the presence of the accused for satisfying itself as to whether the individual seen in the footage is the accused in the dock. The trial Court should also specifically put questions to the accused when he is examined under Section 313 Cr.P.C. about his overt acts appearing in the footage and record his answers.
IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated:     27.2.2016.
: IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated:      27-1-2016

Coram

The Honourable Mr.Justice R.SUDHAKAR and
The Honourable Mr.Justice P.N.PRAKASH

Referred Trial No.1 of 2015
Criminal Appeal No.110 of 2015

K. Ramajayam @ Appu Appellant/Accused
Vs.
The Inspector of Police,
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SC: Computer Output not admissible without Compliance of 65B,EA

In the judgment of ANVAR P.V. VERSUS, P.K. BASHEER AND OTHERS, in CIVIL APPEAL NO. 4226 OF 2012 decided on Sept., 18, 2014, the Supreme Court has settled the controversies arising from the various conflicting judgments as well as the practices being followed  in the various High Courts and the Trial Court as to the admissibility of the Electronic Evidences. The court has interpreted the Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that data in CD/DVD/Pen Drive are not admissible without a certificate u/s 65 B(4) of  Evidence Act. It has  been clarified that in case of computer output without such a certificate, neither  there cannot be  oral evidence to prove such a electronic evidence the output in electronic media  nor the opinion of the expert under section 45A Evidence Act could be resorted to prove the genuineness
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Fact discovered - what constitutes - Fact means some concrete or material fact to which information directly relates - Information must be such as has caused discovery of the fact & must relate distinctly to the fact discovered -
2010 ALL SCR (OCC) 146 -
Erabhadrappa V/s. State of Karnataka 
------------------------------------------------
Electronic Evidence Case Law: CCTV & 65B Certificate 
Rajesh Dhannalal Daware Vs. State of Maharashtra {Bombay High Court, 5 May 2016}
Evidence Act, 1872 - Section 65-B - Footage of CCTV Camera - Under S. 65B(4) if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) There must be a certificate which identifies the electronic record containing the statement; (b) The certificate must describe the manner in which the electronic record was produced; (c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

Sunday, March 20, 2016

Trojan targeting your bank codes sent on Mobile

A new Android trojan has the ability to intercept text messages and bypass the SMS-based two-factor authentication system protecting customers' bank accounts. The trojan, detected as  "Android/Spy.Agent.SI"   is currently targeting customers of large banks via their mobile apps.
The malware tricks users into downloading it onto their devices by masquerading as Adobe Flash Player. Upon installation, it requests that the user grant the malicious app administrator rights, before seemingly disappearing from view.
Rest assured, however, that while the Flash Player icon might no longer be visible, the trojan is just getting started.At this point, Android/Spy.Agent.SI contacts a remote server hosting malicious APK files whose corresponding URL paths are regenerated hourly in a bid to avoid detection by anti-virus software.
The trojan uses this connection to send information about the infected device, along with the package names of installed applications, to its operators. If any of the apps are identified as a target, the remote server responds with a list of 49 apps that Android/Spy.Agent.SI is equipped to attack via a phishing attack.
Just in case the victim's account is protected with two-factor authentication, Android/Spy.Agent.SI also has the ability to send all SMS communications to the remote server upon request.This allows the malware's author to bypass 2FA protection.
These are things you can do to protect yourself.
First, if you ever see anything masquerading as Adobe Flash Player on Android, you can be sure it's a fake. Flash Player hasn't created a client for Android since 2012, so there's no way anything legitimate is still making the rounds on the mobile platform.
Second, you would be wise to install mobile apps from the official Google Play Store rather than less-trustworthy third-party sites, and should always keep a mobile anti-virus solution running on your phone as an added layer of defense.
Last but not least, if you do become infected with Android/Spy.Agent.SI, you can remove the malware by disabling the fake Flash Player's administrator privileges in Settings or by removing it while in Safe Mode.

Friday, March 18, 2016

Stages of Cyber Civil Cases in Indian

STAGES IN a Cyber CIVIL Case / Suit in India-
(Plaintiff Means whoever files the case )
By Advocate Prashant Mali(@CyberMahaGuru)

1. Plaintiff has to file the plaint complying the provisions in all respect as contemplated under
Order 4 r/w Order 6 and 7 of the code.

2. Plaintiff  has to issue summons within 30 days from the institution of suit.

3. After the service of summons defendant has to file his written statement within 30 days
from the receipt of summons as per Order 8 R 1 of the code

4. No further time exceeding 90 days after date of service of summons be extended
for filing written statement as per proviso to Order 8 R 1 of the code.

5. Within 10 days from the filing of written statement court has to examine the parties so
as to explore the possibilities of compromise in between the parties and to refer the matter of settlement under section 89 of the code.

6. If parties fail to compromise the matter then court has to keep the matter for discovery
and inspection  within the time span of 7– 10 – 10 – 3 days, as per Order 11 of the code.

7. Then to adjourn the matter for admission within the time span of 15 days as per Order 12
of the code.

8. Then parties have to file the original documents prior to framing of issues within
the time span of 7 days, as per Order 13 of the code.

9. Court has to frame the issues within 15 days as per Order 14 of the code.

10. Parties have to file the list of witnesses within 15 days from the date of framing of issues as per
Order 16 of the code.

11. Plaintiff has to issue summons to the witnesses either for adducing evidence or for production of documents within 5 days of filing of list as per Order 16 R 1(4) of the code.

12. Parties have to settle the date of evidence as per Order 16 of the code.

13. Plaintiff has to file the affidavits of all his witnesses within 3 adjournments as per Order 18 R 4 r/w Order 17 of the code.

14. Court has to exhibit the documents considering their proof and admissibility with a reasoned order as per proviso to Order 18 R 4(1) of the code.

15. Cross examination of the plaintiff and his witnesses on day to day until all the witnesses in
attendance have been examined as per Order 18 R 4 (2) r/w Order 17 R2 (a) of the code.

16. Defendant has to issue summons to the witnesses either for adducing evidence or for
production of documents as per Order 16 R 1 (4) of the code.

17. Defendant has to file the affidavits of all his witnesses within 3 adjournments as per Order 18 R 4 r/w Order 17 of the code.

18. Court has to exhibit the documents considering their proof and admissibility with a reasoned order as per proviso to Order 18 R 4(1) of the code.

19. Cross examination of the defendant and his witnesses on day to day until all the witnesses in
attendance have been  examined as per Order 18 R 4 (2) r/w Order 17 R2 (a) of the code.

20. Parties have to conclude their arguments within 15 days from the completion of their
respective evidence as per Order 18 R 2 (3A) of the code.

21. Court has to delivered judgment forthwith or on or before 30 days and not exceeding 60 days
from the date of conclusion of the arguments as per Order 20 R 1 of the code.

The party in whose favor the judgement is passed is known as decree holder, and the party against whom the judgement is passed is called the judgement debtor.

Review of judgement

If a party is not satisfied with the judgement, then it can file an application for review of the judgement. If the court feels there are not sufficient grounds for the review, then it may reject the application. The court may also reject the application if it was based on some new evidence unless strict proof is provided that the party was earlier unaware of it. Also, when a application for review is received by the court, it shall send a notice to the other patty in order for him/her to appear and present his side. If the application is granted and a judgement has been passed, it cannot be reviewed further. 

Appeal
A party may appeal in appellate court against the original decree. A memorandum needs to be filed in the appellate court specifying the grounds of objection. The appellant may be required to provide the security for cost. The court may accept, reject, or send back the appeal to the appellant for modifications. If the appellate court finds sufficient cause for stay on the execution of decree, then it may order to do so. If the appellate courts accepts the appeal it shall send a notice to the lower court (whose decree is being appealed) so that it can dispatch the records relevant to the case to the appellate court. The appellate court will send notices for the day of the hearing and will rehear the case. The appellate court may confirm, vary, or reverse the original decree in its judgement. 

Execution of Decree

If the judgement-debtor needs to pay money, he can submit it in the court or outside the court as well. If the payment is made outside of the court then an evidence of the payment needs to be produced. When a payment is made then judgement-debtor needs to send an acknowledgement to the decree-holder. If the judgement debtor fails to comply to the decree then the decree holder may file an application for execution of decree. The application needs to be filed in the place of judgement-debtor's residence. The decree holder may request the court to assist him by either delivering the property, arrest or detention of person, or any other relief granted in the decree. 
The judgement debtor is issued a notice to show cause against execution. If no satisfactory response is shown for the show cause notice, then the court may issue orders to execute the decree. In case of payment of money, the court may order the detention of judgement-debtor in civil prison or sale of judgement-debtor's property. In issues related to movable property, it may be seized and delivered to the other party.

Note: everything above in ideal situationsđŸ˜„
Apply for compensation upto Rs.5 Crores to adjudication Officer (IT Secretary of the state) and Above that to respective High Courts of the state.
cyberlawconsulting@gmail.com
Author: Prashant Mali @CyberMahaGuru

Monday, March 7, 2016

Can a Complainant or Victim fight his own cyber crime case or appoint his own Lawyer?



Can a Complainant or Victim fight his own cyber crime case in Magistrates Court or appoint his own lawyer?
Note: Normally when one files a police FIR, the case is represented free of cost by the STATE in the courts i.e By Public Prosecutor.
Yes !!! He can by himself or through his Expert Legal Counsel or a Lawyer.
But he has to file a written application making out a case, so that the magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.
A plain reading of Section 301 reveals that though oral submissions before the court cannot be independent of the Prosecutor, a pleader instructed by a private person can definitely file written submissions before the court independent of the Public Prosecutor, if the court so permits. That apart, Sections 301 and 302 cover two different situations. Section 301 envisages a situation where the Public Prosecutor is in charge of a case and a private person instructs his pleader to intervene. In such cases, as has been rightly held, it is the Public Prosecutor under whose overall conduct and supervision the prosecution is carried on. However, Section 302 is concerned with a situation where any person not being a police officer below the rank of inspector, can prosecute a case, with the permission of the court, either himself or through his pleader. This amply signifies that CrPC contemplates a situation where the whole conduct of the case is with a private person. Thus two levels of intervention by private persons are envisaged under CrPC. One is under the supervision and control of the Public Prosecutor and the other independent of the Prosecutor. Thus clearly, in a case where a private person seeks the permission of the court to intervene, it is the discretion of the court to decide which level of intervention should be allowed in any given case.

The difference between Section 301 and Section 302 of the Code of Criminal Procedure (CrPC) is examined by the Hon. Supreme Court in Dhariwal Industries Ltd. vs. Kishore Wadhwani & Ors. It was held that Section 302 CrPC confers power on a magistrate to grant permission to the complainant to conduct the prosecution independently. The court also made it clear that the said provision applies to every stage, including the stage of framing charge (This means when the court finalises the sections of law to be applied to the accused by passing a charge framing Order) 
A Bench comprising Justice Dipak Mishra and Justice Adarsh Kumar Goel also clarified that when a complainant wants to take the benefit as provided under Section 302 CrPC, he has to file a written application making out a case, so that the magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.
The private complainant, who is the appellant before the Supreme Court, was permitted by the magistrate to be heard at the stage of framing of charge. However, the high court modified the said order by expressing the view that the role of the complainant is limited under Section 301 CrPC and he cannot be allowed to take over the control of prosecution by directly addressing the court, but has to act under the directions of the assistant public prosecutor in charge of the case.
Magistrate Can Permit The Complainant To Conduct Prosecution Independently
Referring to a three-judge Bench decision in J.K. International vs. State, the court observed: “It has been opined that the private person who is permitted to conduct prosecution in the magistrate’s court can engage a counsel to do the needful in the court in his behalf. If a private person is aggrieved by the offence committed against him or against any one in whom he is interested, he can approach the magistrate and seek permission to conduct the prosecution by himself. This court further proceeded to state that it is open to the court to consider his request and if the court thinks that the cause of justice would be served better by granting such permission the court would generally grant such permission. Clarifying further, it has been held that the said wider amplitude is limited to the magistrate’s court, as the right of such private individual to participate in the conduct of prosecution in the sessions court is very much restricted and is made subject to the control of the public prosecutor. “ 
The court further observed: “Role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by him is required to act under the directions of public prosecutor. As far as Section 302 CrPC is concerned, power is conferred on the magistrate to grant permission to the complainant to conduct the prosecution independently.”
Written Application Must
However, the Bench added: “When a complainant wants to take the benefit as provided under Section 302 CrPC, he has to file a written application making out a case in terms of J.K. International (supra) so that the magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.”
Section 302 CrPC Applies To Every Stage
Allowing the appellant to file an application under Section 302 CrPC before the magistrate, the Bench said: “It may be clearly stated here that the said provision applies to every stage including the stage of framing charge in as much as the complainant is permitted by the magistrate to conduct the prosecution. We have said so to clarify the position of law. If an application in this regard is led, it shall be dealt with on its own merits. Needless to say, the order passed by the learned magistrate or that of the high court will not be an impediment in dealing with the application to be led under Section 302 CrPC.“ 

Role of Public Prosecutor
The other challenge in general public mind is the Public Prosecutor is an officer of the court, and not the counsel of the State, and hence she should be absolutely impartial, and should not work towards a conviction, but should strive to uphold the truth and assist the court in doing the same. This is an idealistic position, and practice has shown that the Prosecutor has basically become the counsel of the State. This is because, ultimately, the Prosecutor is appointed and removed by the State. Hence, she has no choice, but to be briefed by the State and to put forth the views of the State in the court of law. This has very clearly come through in the Best Bakery case, wherein the Public Prosecutors seem to have followed the instructions of the State Government at every step.
Conclusion
To conclude, one of the major aims of punishment under criminal law is deterrence. With abysmal rates of conviction in cyber crime matters, deterrence is becoming meaningless. The criminal-justice system is becoming overburdened and unreliable due to lack of awareness amongst judges and lawyers about cyber crime and electronic evidence. Hence, in my opinion, it makes sense to permit the complainant to represent himself or through his expert legal counsel intervene in criminal cases.

Navy man in Jail for 2 years for Child Pornography, cyber crime in India

Navy man gets 2 years Jail for Child Pornography, cyber crime in India : Cyber crime conviction By Prashant Mali In the case of D...