~By Parth Kantak
INTRODUCTION
This piece deals with the issue of bail in the cases of the cyber-crimes given in the Information Technology (IT) Act, 2000. It has been a relatively muted issue however a really pertinent one due to the impact that it has on the investigation of cyber-crimes, which is an extremely crucial stage in offences like cyber-crimes. Cyber-crimes have only seen a rise in India over the years and especially after the COVID-19 lockdown. Along with the rise in the number, complexity and intensity of these crimes has also increased manifold. This makes investigation quite tricky since law enforcement authorities have to deal a number of added challenges. Therefore, this piece aims to float a possible model to amend the statute in such a manner that it aids the police in conducting effective investigations and secures the rights of the persons involved especially the accused.
The piece is divided into three main sections. The first section explicates the hurdles that the law enforcement authorities encounter in the investigation process due to most of the cyber-crimes given in the IT Act, 2000 being bailable, in turn identifying the problems that this piece attempts to remedy by its model. The second section deals with the nature of the cyber-crimes given in the IT Act, 2000 and how the offences have differing intensities as can be observed from illustrations and case laws. This will aid in showing how the threshold of investigation is also varied according to the factors mentioned regarding the crime. The third section covers the policy suggestions that the piece provides after consideration of the analysis conducted in the previous sections to improve the capability of investigation of such crimes and lead to proactive crime prevention.
ISSUES RIDDLING THE INVESTIGATION OF AND CONVICTION IN CYBER-CRIMES IN INDIA
The background for the cruciality of investigation in cyber-crimes has been set in the introduction. Therefore, for the investigation to happen in the most optimal fashion all the issues riddling it would need to be remedied to achieve this end. Before elucidating on the issues that cyber-crime investigation is riddled with, it needs to be understood that a type of them stem from the fact that all of the cyber-crimes given in the IT Act, 2000 are bailable under s.77B. This is the barring the offences of publishing or transmitting of obscene material (s.67), sexually explicit act in electronic form (s.67A),material depicting children in sexually explicit acts in electronic form (s.67B) and Cyber-terrorism (s.66F), which can be implied to be non-bailable offences from the section. The categorization of bailable and non-bailable offences is based on the maximum limit of imprisonment if convicted. All offences which have 3 or lesser years of imprisonment are bailable offences whereas those offences that have been mentioned above having imprisonments of more than 3 years are non-bailable.
The issues caused by this are that firstly the accused is let out on bail as soon as he is arrested under s.436 of the Code of Criminal Procedure, 1908 (“CrPC”). This makes the accused elude the custody as such during the pendency or the course of the trial. This causes a serious impediment in the investigative abilities of the police. Moreover, s.77B provides that although offences with three years imprisonment as punishment are made bailable, they have also been made cognizable. This does not serve any purpose if the person gets released on bail after he is arrested as mentioned above.
To better understand the issues, the nature of cyber-crimes need to be elaborated upon to show the specific problems that it causes to investigation. In most cases related to cyber-crimes, due to the advancements in technology and newer forms of hacking such as DDOS, etc, it is often the case that the accused has better knowledge and capabilities than the police with respect to that technology. This has also lead to the police having to hire private agencies to aid them in the investigation process. Therefore, the impact this has is that, if the accused is let out on bail, he can cause more harm. This can involve anything from the destruction of evidence, witness tampering, going incognito, etc. This not only scuttles the investigation process but also leads to a delay in the administration of justice along with harm being caused to the criminal justice system. As evidenced in the report on cyber-crime conviction rates, the rates are abysmally low. All in all, it can be surmised that it is detrimental to the system.
Although these offences might be bailable which is the root of the problems, it can be countered by the assertion that there are certain safeguards in place too such as if the conditions in the bail bond being breached being a ground to revoke bail. However, this makes it a long-drawn process with the accused still having the capability while he is on bail to cause irretrievable harm because of the tools at his disposal. This is also contingent on the nature of the accused since in many cyber-crimes too the accused is not as equipped however that will be dealt with in the next section.
Another manner in which the police tries to skirt this issue is by the application of non-bailable offences from the Indian Penal Code, 1860 (“IPC”) too, in order to obtain bail, although the offence that is committed might not squarely fit within that non-bailable.[1] This does not hold well since it engenders and establishes a practice which is detrimental to the rights of the accused and also creates impunity in the system too with the police unreasonably widening their powers. This also negates the necessity of offences to be given in the IT Act, if the police are to apply the provisions of the IPC to resolve the issue. Therefore, it can be gauged that to remedy the issue and enabling the system to operate optimally, an amendment to the statute should be a sufficient alternative. This will have to be done in a nuanced manner to balance out other pertinent considerations. To better inform the manner the policy that proposes an amendment to the statute, a bit of history of the statute would have to be elaborated upon.
When the IT Act was enforced in 2000, all the offences given in the act were non-bailable with high terms of imprisonment in the first instance itself. This led to certain cases of incorrect imprisonment occurring such as Airtel case and frivolous cases such as the Orkut obscenity cases. This prompted the government to make most of the offences bailable according to the IT (Amendment) Act, 2008 with the insertion of s.77B. This insertion is now causing the problems mentioned above. As can be observed, both of these stances of making most offences bailable or non-bailable are extreme in consequence. Therefore, a stance that is more nuanced is imperative.
NATURE OF CYBER-CRIMES IN THE IT ACT: INTEGRALITY OF THE ‘INTENSITY’ ELEMENT
The IT Act, 2000 lists out the offences that can be considered cyber-crimes in India and also the punishments that one can be convicted with if those offences are committed.
Offences under s.66 deal with computer related offences which encompass various offenses such as identity theft, sending offensive messages, transfer of obscene material, cheating by personation, violation of privacy, etc. To better lay out the model that this piece will be proposing, it argues for a particular distinction.
Every offence given in the IT Act with a punishment of imprisonment upto 3 years is termed to be bailable. The offensive act that is committed under any of these offences is of varying intensity. To illustrate, an X offence of cheating or commiting financial fraud by personation can cause of a loss to a person amounting to Rs 10 as well as Rs 10 cr and above. The latter act would definitely require more developed infrastructure to commit at the same time the accused can be assumed to have sound technological knowledge as well as well-equipped skill set to commit a crime of this intensity. If such an accused is released on bail since the offence is bailable, it will be detrimental to the investigation process as mentioned above. Therefore, this instance indicates how there are differing intensities to offences and this pertinent in the cases of most of the offences mentioned in the act.[2] Two cases will be examined to better illustrate this position.
In the State of Maharashtra vs. Rajkumar Kunda Swami case, the defendant, who worked as a clerk at the Abhyudaya Co-operative Bank Ltd., engaged in fraudulent activity. He opened false accounts in his and his family members’ names, and manipulated credit entries through tampering with computer data. By doing so, he managed to withdraw approximately Rs 2.27 crores from the fake accounts and cheated the bank. The defendant was released on bail while facing charges under sections 409, 420, 463, 464, 471, 477A of IPC, as well as section 43 read with sections 66, 65 and 73 of the IT Act. However, he absconded after release, and the Romhay High Court revoked his bail as a result. It is a classic case of the illustration provided where the accused was technologically sound to commit an offence to this measure and also on being released on bail, caused further problems for the law enforcement agencies to bring him back and continue the trial.
In Vishal Kaushik v State (Govt of NCT of Delhi), the case involved an accusation made by the accused’s wife that he had hacked into her Gmail and Facebook accounts. The case was eventually compounded and withdrawn with permission. In such a case where there was virtually no loss caused and the accused was the husband, an arrest was would not be required as can be seen by the manner in which the case was handled.
As can be gathered, in all of these cases the intensity of a particular offence is contingent upon a particular factor such as the financial loss caused, which is generally the most common ground, extent of confidentiality and privileged nature of the documents in cases of violation of privacy, extent of transmission of the particular confidential data, etc.[3] Therefore, this is a significant criterion upon which a distinction can be struck to determine the intensity of the offence.
POLICY SUGGESTIONS TO REFORM THE PENAL FRAMEWORK
The model that this piece proposes is that there should be an amendment to the provisions on offences in the act in such a manner:
- There should be the formulation of a ground such as the financial loss caused, etc for each offence to determine the intensity of the offence committed.
- If the offence that is committed falls above the threshold of the ground set i.e 1 crore of loss due to the commission of the offence, the offence should be declared non-bailable
- If the offence that is committed falls below the threshold of the ground set, the offence should be made a bailable offence.
The manner in which cognizability should apply in this model is that the offences that qualify as non-bailable are to be declared as cognizable due to the intensity and seriousness involved in the offence. If it is also applied to cases that are bailable, it would not serve any purpose since firstly they are not as serious and secondly, it is also the current position and is does not yield any special benefits as such. Also due to the threshold set being high for non-bailable cases, it is a valid assumption that the accused will be of equally capable nature which emphasises on the need for the offence to be cognizable so that adequate measures can be taken to investigate the offence and mete out justice.
The benefits that this model would have for the investigation process is that in cases where the offence is of higher intensity or involves a huge amount of loss, it would be a non-bailable offence, which would given the police the custody of the accused and hence more control over the investigation, with negligible chances of lag and irregularity. Moreover, it would prevent the accused in such a case, who is also assumed to be a highly technically equipped one, to cause more harm in the form of witness or evidence tampering by using the tools at his disposal since his custody would be taken by the police. In the general scheme, it would lead to a fairer and better administration of justice. It would also make the IT Act able in itself with the police not having to take recourse to IPC to get the custody of the accused.
Another side to the benefits of this model is that in cases where it is a cyber-crime however is of a nature of lesser intensity or involves a minimal amount of loss and with negligible negative externalities too, the offence is bailable in nature. This is in consonance with the rights of the accused since the accused would not be made to suffer custody of the police which is also disproportionate to the offence committed by them. The accused will merely have to present themselves in the police station when asked for and according to the conditions laid down in the bail bond. This would also prevent crowding of prisons to an extent and aid in conserving the precious resources.
CONCLUSION
This piece has conducted a comprehensive analysis of the issue of bail in cyber-crimes and floated to amend the statute on the lines of creating a distinction on whether bail can be given in the offence based on certain grounds such as a monetary loss limit, impact of the crime, the complexity of the crime, etc. There are couple of reservations to be made here too. Firstly, this would involve another stage wherein the judge may have to deploy discretion to take a call on whether to give the accused bail since the case of the police would intuitively support for not giving bail. The police would also be inclined to somehow meet the threshold in order to get the custody of the accused even in cases where the threshold is not met in a general manner, like they operate in the current sphere by roping in non-bailable IPC provisions to the offence committed in order to get custody. Therefore, the judge would have to be considerate of this inclination of the police and give orders accordingly to prevent the misuse of the model in case of its implementation.
Moreover, there will have to be an immense amount of additional deliberation to quantify the monetary loss limit and the other grounds to lay down as thresholds in order to make them as objective as possible. The computation of any of these grounds would have to be devised i.e whether the loss caused should be considered or the loss that might potentially be caused due to the externalities of the harm is to be considered, keeping in mind several policy considerations that cannot be laid down in the piece due to concerns of brevity. This might be a tad bit of a drafting hassle but in the long run it definitely will hold in good stead for the prevention of cyber-crime by making investigations more efficient and balancing the rights of the accused too by providing bail in where the offence is of lower intensity.
[1] N. S. Nappinai, ‘Dissecting the IT Act’ Technology Laws Decoded (Lexis Nexis 2019, 1st edn)
[3] Nappinai (n 1)
The author is a third-year law student at National Law School of India University, Bengaluru.