Criminal Law & Cyber Crimes.ppt

8/30/2022 Murali, NALSAR 1
R.MURALIDHARAN
Advocate, Patent & Trade Mark Attorney,
Law Lecturer & Researcher
10, 19th Cross, Malleswaram,
Bangalore-560 055.
Phone:080-3346166
Telefax:080-3314404
e-mail: manumurali@vsnl.net

GENERAL PRINCIPLES OF
CRIMINAL LAW
AND
CYBER CRIMES.

Every kind of deviant
or crooked conduct
prohibited by law can
attract either Civil
or Penal consequences
or at times both Civil
and Criminal
liabilities.

The purpose of Civil Law
is to compensate the
victim by way of
reparations, to
compensate the damage
suffered by him. This
compensation is
described as,
“damages”

Damages in Civil Law can
either be liquidated
damages
OR
unliquidated damages.

In the case of contracts,
parties themselves can
agree on compensation for
delayed performance.

These are called
liquidated damages; when
parties lay down the
principles based on which
the damages can be
compensated.

Unliquidated damages
are awarded
in
TORT Cases.

Damages are described
to be unliquidated
when only the court
can exactly compute
the damages payable to
the victim.

The purpose of
Criminal Law,
on the other hand is
to punish the offender
rather than
compensating the
victim.

The Cr.P.C empowers
the Judge to impose
fines and further
order the payment of
the fine collected to
the victim of the
offence.

Recently, the Madras High
Court while upholding the
conviction of the accused,
in the case of Advocate
Mr.Shanmukhasundaram’s
attempt to murder case,
while reducing the life
sentence to eight years,
directed the accused to pay
the fine of Rs.50,000/- to
the victim of the offence.

Since the purpose of
Criminal Law is to punish
the offender for many
reasons such as,
•a) Punishment is an
organized and legally
sanctioned state
revenge against the
offender.

Since the purpose of Criminal
Law is to punish the offender
for many reasons such as(contd)
•b) During the period
offenders are held in
jail, he/she/ they
are unlikely to
repeat the offences.

Since the purpose of Criminal
Law is to punish the offender
for many reasons such as(contd)
• c)Punishment of the offender
deters like-minded people
from committing the offence
as they will look upon the
punishment and the offender
and as a possible
consequence and hence avoid
crimes.

All over the world,
it is recognized that
no man can be
punished without the
due process of law.

Under our
constitution,
the right to personal
liberty is an
important fundamental,
basic, constitutional
right available to
both citizens and non-
citizens alike.

This right also has in it
the following consequential
rights.
•1) No punishment
without law.

This right also has in it the
following consequential
rights(contd)
•2) Normally, penal
laws cannot have
retrospective
operations.

rights(contd)
•3) No punishment
without a trial in
accordance with law.

rights(contd)
•4) The due process
contemplated includes
both “substantive”
and “procedural due
process”.

The “substantive due
process” means that
the law must have been
validly laid down by
Parliament
OR
State Legislature or any
body competent to make law.

The term “procedural due
process” implies that
the mechanism of
implementation of the
law is fair and complies
with the principles of
natural justice.

The substantive Criminal
Law of our country is found
in Indian Penal Code 1860.
In addition, many of the
Central and State
Legislation prescribe the
acts that are crimes and
stipulate punishment
therefore.

Under the Indian
Constitution, “Justice
Administration” is a
State subject. Unlike
United States of America
where both the Federal
Govt and the States
ensure penal law
implementation.

In India the CBI can
investigate a matter
in any of the states
of the Union of India,
only if specifically
authorized by the
state.

As far as Cyber crimes go,
geographical frontiers are
irrelevant. The incidence of
the Cyber crime makes it all
the more necessary for Union
of India to have a Federal
police force having
statutory and constitutional
competence to investigate
Cyber crimes.

Indian Penal Code 1860, the
great work of Lord Macaulay
or his legal assistant
classifies offences in
following categories.

Classification of offences
• A) Abetment of a crime.
• B) Criminal conspiracy.
• C) Offences against the
State.
• D) Offences against armed
forces.
• E) Offences against public
tranquility.

Classification of offences(contd.)
• F) Offences by/relating to
public servants.
• G) Offences relating to
elections.
• H) Offences against lawful
authority of public servant
and of contempt.

Classification of offences(contd)
• I) Perjury and offences against
public justice.
• J) Offences relating to currency
and stamps.
• K) Offences against weights and
measures.
• L) Offences against public health,
safety, decency and morals.

• M) Offences against religion.
• N) Offences against human
body.
• O) Offences against property.
• P) Offences against documents
and property marks.

• Q) Offences relating to
marriage.
• R) Offences of defamation.
• S) Offence of intimidation,
insult and annoyance.

Among these,
the following offences
require special
consideration of the Cyber
police professional.

Offences requiring special
consideration
• A) Offences against State.
• B) Offences against armed
forces.
• C) Offences of pornography
and its publication.

Offences requiring special
consideration(contd)
• D) Offences against property
involving issues of
Intellectual Property
Infringement.
• E) Offences of criminal
mischief and annoyance.

In addition,
Cr.P.C, the procedural law
of the land also classifies
offences into various
categories. The first
schedule of Cr.P.C relating
to classification of
offences classifies them
into the following
categories.

A) COGNIZABLE & NON-
COGNIZABLE OFFENCES
In the case of a commission
of cognizable
offence,anyone can arrest
without a warrant.
As and when a cognizable
offence committed, in their
presence, even private
citizens can exercise the
power of arrest.

COGNIZABLE & NON-COGNIZABLE
OFFENCES(contd)
Cr.P.C does not make a
distinction between
policemen and civilians
for arrest relating to
Cognizable Offences.

COGNIZABLE & NON-COGNIZABLE
OFFENCES(contd)
In the case of a Non-
Cognizable offence, an
arrest can be made only
in pursuant of warrant
issued by a competent
court.

B) BAILABLE & NON-
BAILABLE OFFENCES
This relates to the right
of the accused during pre-
trial detention. In case of
a Non-Bailable Offence,
after arrest, the police
officers have no power to
grant bail themselves. Bail
for non-bailable offences
can be granted only by
Courts of Law.

C) COMPOUNDABLE, NON-COMPOUNDABLE
& COMPOUNDABLE WITH THE
PERMISSION OF THE
COURT:Compoundable means the
victims can pardon the offender
the consequences of the
offence.Non compoundable means
that the victims cannot pardon
the consequences of the offence.

The offences are also
further classified into
summary cases, warrant
cases and trial by Court of
Sessions. The first
schedule of Cr.P.C
clarifies these aspects.

As a thumb rule, we can presume
that,
• A) Any offence punishable
only with fine and/less
than two years of
imprisonment is a summary
offence.

• b) Any offence which is
punishable with an
imprisonment of more than 2
years will be tried as a
warrant case.

•c)Any offence punishable
with life/death punishment,
specified offences, special
offences would be tried by
Court of Sessions.

•Under our penal law,
only the Court of
Sessions is competent
to award death
penalty.

SUB DIVISIONAL
JUDICIAL MAGISTRATE
CHIEF JUDICIAL
MAGISTRTE
METRO POLITAN
MAGISTRATES
DISTRICT
& SESSIONS COURT
HIGHCOURT
SUPREME COURT

CYBER CRIMES
The advent of Cyber
crime has exploded
many of the prevailing
hypotheses in Criminal
Law.

Criminologists all over the
world have postulated
various hypotheses on the
general pattern of crimes
and criminals.
Many of these hypotheses,
with various degrees of
accuracy, can be summed up
as under:

a) The offender is
normally an illiterate
without skills, who depends
more on the body than the
brains, often wielding
weapons.

b) The criminal has a
motive for the crime and
often leaves a lot of
evidence which would make
crime detection possible
for a trained investigator.

c) As for the victims,
most are men, who
traditionally are the
persons controlling the
property or exercising
power.

d) The victims of the
offences are clearly
identifiable.

e)In terms of damage,
damage to the victim is
localized and can easily be
quantified and compensated.
Cyber Crimes have proved
all the above hypotheses
wrong.

CASE STUDIES
NO.1)
DPP
V/S
BIGNELL

DPP V/S BIGNELL
In this case, a police
officer obtained access
to data held on the
police national computer
in order to identify the
owner of a motor vehicle.

DPP V/S BIGNELL(contd)
The information was sought
for the officer’s personal
interest and was not
connected with his duties
a police officer. The
conduct being discovered,
he was charged with an
offence under section 1 of
the Computer Misuse Act.

Although it was not
contended that the use to
which the data was put
was unauthorized, the
Divisional Court accepted
submissions by counsel
for the respondent to the
effect that:

……the primary purpose of
the Computer Misuse Act
was to protect the
integrity of Computer
systems rather than the
integrity of information
stored on the
computers………

A person who causes a
computer to perform a
function to secure access
to information held at a
level to which the person
was entitled to gain
access does not commit an
offence under Section 1.

...even if he intends to
secure for an unauthorised
purpose because it is only
where the level of
unauthorised access has
been knowingly and
intentionally exceeded that
an offence is committed,
provided the person knows
of that unauthorised level
of access.

No.2
R
V/s
Thompson

R V/s Thompson
In this case, the
appellant was
presumably authorised
to access the
computer, but clearly
was not entitled to
act in the manner at
issue.

R V/s Thompson(contd)
Assuming that the courts
were to endorse the Law
Commission’s
interpretation of the
concept of unauthorised
access, such a person
would not be guilty of an
offence under Section 1
of the Act.

Section 2, the ulterior
intent offence discussed
below, appears relevant
but this can only be
committed by a person who
has committed the basic
unauthorised access
offence.

Although, as occurred in Thompson,
most instances of computer fraud
can be prosecuted under general
criminal provisions, the effect of
this situation might be to deny
much of the protection offered by
the Computer Misuse Act to
employers faced with authorized
but dishonest employees.

NO.3
R
V/s
Governor of Brixton
Prison, ex p Levin

R V/s Governor of Brixton Prison,
ex p Levin
The application of the
ulterior intent offence was
at issue in this case. In
order for the United State’s
extradition request to be
met, it was necessary to
establish that the acts
committed by the defendant
would have constituted
criminal offences under
English Law.

ex p Levin(contd)
There was no doubt that
Levin, in hacking into
the Citibank’s computer
system, had committed the
unauthorised access
offence. It may be
queried how useful a role
is played by ulterior
intent doctrine.

ex p Levin(contd)
In Levin’s case, the
extradition request was
upheld upon a range of
grounds-including breach
of the unauthorised
modification offence
established by Section3
of the Computer Misuse
Act.

ex p Levin(contd)
The finding that the
ulterior intent offence had
been committed was not
critical to the decision. A
more significant limitation
is created by the
requirement that the
unauthorized access offence
also be committed.

ex p Levin(contd)
This excluded the
authorized but dishonest
user who, by all
accounts, is responsible
for most loss and damage
in this area.

Thank You for
a patient hearing.
R.Muralidharan,
10,19th Cross, Malleswaram,
Bangalore560 055

Criminal Law & Cyber Crimes.ppt

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