“As cybersecurity leaders, we have to create our message of influence because security is a culture and you need the business to take place and be part of that security culture.”
-Britney Hommertzheim
Palak Katta | Unitedworld School of Law, Gujarat | 30th June 2020
State of Maharashtra v. Vishal H. Bhogade
Cyber crime, as the name suggests, is a type of crime that is committed in the cyber world. This crime is a new type of crime that has extended its underlying foundations to pretty much every part of the life of the citizens. Our Indian law has not defined the term cyber crime as such, however, an act has been introduced to tackle these types of crimes, which we know as the Information Technology Act 2000 or the IT Act 2000.
The term cyber crime is a very wide term and therefore cannot be defined in just one to two sentences. However, if we look at the nature of this crime, it can be said that it is that type of crime in which computers and computer networks are put into use or more specifically, abuse, and the crime is committed either ‘through’ them or ‘to’ them or both. These cyber crimes may happen in various places. Cyber criminals through their internet connection or even through others or in many cases through cyber café try committing these crimes. Cyber cafes are intermediaries and their conviction is possible even before the real cyber crime is traced.
An ‘intermediary’ has been defined in Section 2(w)[1] of the IT Act, 2000 as “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, web-housing service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes”.
In the case of, State of Maharashtra v. Vishal H. Bhogade, an intermediary is been convicted before the actual cyber crime is been traced.
On 5th Sep 2012, A cybercrime cell team arrested Vishal Hiraman Bhogade (Defendant NO.1) of Kharpudi village in Khed taluka and his partner Sandesh Sopan Dhere (Defendant NO.2), who runs the cafe from where a threat email was sent on August 25 to the police commissioner.
Facts:
Dr. Sanjay Tungar who was working at Cybercrime cell, commissioner office, Pune. He received an e-mail on mail Id of police commissioner, Pune with Subject was “In Ganesh festival bomb blast” and mail containing a threat message as “Mission Ganesh Attack. If you want to stop try but don’t cry”. Like the mail, being objectionable was sent to Cyber Crime Cell, Pune for Investigation. Dr.Tungar conducted a preliminary inquiry. Yahoo Company sent a letter giving I.P address. After inquired of that I.P address to BSNL, BSNL informed that said I.P address is given to Vishal Bhogade. After Obtaining Information from Yahoo Company and BSNL it revealed that mail was sent from Raje Computers, Pune. After a visit to cyber café & Investigation came to know that Cyber Cafe was being run by Sandesh Dere. That cyber cafe was not registered. And they did not maintain a register for the customers and had installed an anti-forensic software that deletes all data and login information after a user logs out. Flouting rules, no CCTV cameras were installed in the café.[2]
Initially, the accused were charged for offences punishable under section 43(g), 66 of I.T, act, and section 188 of IPC. But it was held that the accused were not to be charged under the mentioned offences as section 43(g) assists any person to facilitate access to the computer system. Sec. 66 is penal sec. for sec.43. hence, sec. 43 (g) as well as sec. 66 of the I.T. Act was not applicable. Section 188 of IPC is not applicable when there is a specific provision of Sec. 67 c under Special Act.
According to section 134 of the Indian Evidence Act, “No particular number of witness shall in any case be required for the proof of any fact”[3]. Hence, no other witness other than Dr.Tungar was examined.
The person who had sent the e-mail was never traced.
Issue
Whether the Intermediary would be convicted as the real cyber-criminal is not been traced?
In the I.T act, intermediary includes Cyber Café. Cyber café means any facility from where access to the internet is occurred by any person in the ordinary course of business to the members of the public. As per rule 3 of the IT (guidelines for Cyber Café) Rules 2011 registration of Cyber Café is compulsory. It was seen that the accused café was not registered. Accordingly, Rule 4 makes it compulsory to take the ID proof of the users, Rule 5 makes log register compulsory. And this information must be preserved.
In the present case, cyber café was not registered neither the customers information was obtained and preserved. According, to section 67 c (1) preserving and retaining the information by the intermediary is compulsory. Breach of sub section 1 is punishable as per section 67 C (2) of the I.T. act.
Accused pleaded that they are the people who respect the law and were attending the hearing regularly. They asked for minimum punishment.
The Court’s Order on this:
The court held that accused Vishal Hiraman Bhogade and Sandesh Sopan Dere are convicted for the offences punishable under section 67 C (2) of I.T. Act vide sec. 248(2) of the Code of Criminal Procedure[4] and sentenced to suffer simple imprisonment for 15 days and were to pay fine of Rs. 10,000/- each. In default of payment of fine to suffer simple imprisonment for 15 days. The accused were acquitted of the offences punishable under sec 43 (g), 66 of I.T. Act, 2000 and sec 188 of Indian Penal Code, 1860 vide sec.248 (1) of the Code of Criminal Procedure.
Conclusion:
Cyber violations are on a massive ascent. It is expected that the following world war would not be battled with conventional arms and emulations but through the digital world. Digital crooks are getting more brilliant day by day. For this situation, it is additionally observed that the criminal realized that the cybercafe proprietors didn’t keep up an appropriate record and had likewise installed anti-forensic software, which made its work simple. Although the real criminal was not discovered, this was a direct result of the cafe owners as they neglected to keep up records of the clients and they didn’t have CC TV cameras installed in the cafe.
According to the rules of the cyber cafe, they have to keep up an appropriate record of their clients and they have to safeguard it. The court’s judgment for this situation is reasonable enough as the charged had a part in the crime committed. In a country like India, cyber rules need to be developed according to the changing scenario of the world. India has a huge population and to safeguard this level of population, strong cyber laws needed to be maintained.
[1] Information Technology Act, 2000
[2] http://archive.indianexpress.com/news/internet-cafe-owners-held-for-threat-mail/998523/ accessed on 20 June, 2020
[3] The Indian Evidence Act, 1872
[4] The Code of Civil Procedure, 1908
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