Stages of Cyber Crime (Criminal) Trial in Court

STAGES OF Cyber Crime CRIMINAL TRIAL.

Normally a Cyber Crime Trial has to travel through main stages from the lodging of F.I.R. till its judgment, they are as under :-

1.       FIR       :-           Any person can launch prosecution against the person committing any legal wrong.  A complaint can be lodged orally or reduced in to writing before the police station within whose jurisdiction an offence is committed.  The Police Officer in-charge of the police station considers the complaint and registered

2.         Inquiry and Investigation    :-        An police officer after the receipt of the complaint under section 154 of the Code of Criminal Procedure, and matter is taken up for the investigation.

2-A.     If the Police Officer in-charge does not found any material in the complaint then he can register the complaint under section 155(2) of Code of Criminal Procedure and issues a receipt thereof to the complainant.

3.         Upon registering the F.I.R. and during investigation, a Police Officer can arrest the suspect and took him for remand.  Soon after the arrest the accused has to be produced before the Magistrate within 24 hours from the time of his arrest, for authorizing further detention as contemplated under section 57 of Code of Criminal Procedure.

4.         The Police Officer in-charge can ask for Police Custody of the accused under section 167 of Code of Criminal Procedure if the investigation cannot be completed within 24 hours. (See Sec 57 of Cr.P.C.)

5.         The magistrate considering the application can grant Police Custody to the accused which shall not be more than fifteen days in the whole.

5-A.     If the magistrate does not fit it proper to grant police custody then the accused is taken in Magisterial Custody.  (See Sec 167 of Cr.P.C.)

6.         Soon after the MCR, an accused can apply for grant of Bail, within the provisions of section 436, 437 and 439 of Code of Criminal Procedure.

7.         During the investigation, a police officer in-charge can search, seize the material from the possession of accused, or elsewhere kept by the accused.  ( See Section 27 of Evidence Act )

8.         After the completion of investigation, if the police officer found incriminating substance and prima facie case is made out, then he put up charge sheet against the accused.  If the offence is punishable with death, life or not less than 10 years, then charge sheet is to be filed within 90 days.  Whereas the offence is punishable less than 10 years then charge sheet is to be filed within 60 days.  ( See Section 167 (2) (a) (i) and (ii) of Cr.P.C.

8-A.     Upon receipt of charge sheet under section 173 of Code of Criminal Procedure, the court can either accept the charge sheet and put the accused to trial or reject the charge sheet and discharge the accused.

8-B.     If upon the completion of investigation, the police officer does not found any prima facie case, then he can file a final report requesting a discharge of accused.    

8-C.    Upon receipt of the final report, the magistrate can either direct the police officer to re-investigate and file report or can issue notice to the complainant for hearing upon the final report requesting the discharge of accused.

8-D.     If the complainant does not satisfy with the final report requesting discharge of accused, he can request for treating the same as protest petition and try the accused independently.

9.         On acceptance of charge sheet, the accused has to take necessary bail from the court and mater is posted for plea or charge as the case may be.  Whenever the offence is punishable with two years of punishment, then such cases are called as summons case and tried as summary trial within the exception of section 260 of Cr.P.C. and the rest of the matters are tried as summons case. (See Section 239, 240 and 251 of Cr.P.C.)

10.       On complying section 251 or 240 as the case may be, the matter is posted for evidence of the prosecution witness.  (See section 242 and 254 of Cr.P.C.)

11.       Sometimes prior to commencement of evidence of prosecution the prosecution issues notice under section 294 of Cr.P.C. to admit documents to the accused.  By this way the evidence of the witnesses for which the document is admitted is curtailed during the trial.

12.       Whenever the evidence is to be recorded, the court has to record the evidence as provided under section 274 of Cr.P.C. for summons case and section 275 of Cr.P.C. for warrant case.    For summary trial u/s 260 of Cr.P.C. the evidence is recorded as provided under section 263 of Cr.P.C.

13.       After recording the evidence, the matter is posted for statement of accused under section 313 of Cr.P.C, wherein the incriminating evidence brought against the accused is explained to the accused.

14.       Thereafter the matter is posted for evidence of the defense if any.  If the accused does not desire to adduce his own evidence or any other evidence in his defense then matter is posted for Arguments. (See Section 314 of Cr.P.C. for arguments )

15.       After the completion of arguments the matter is posted for judgment.  If there is a judgment of acquittal in summons case then it is to be given under section 255(1) of Cr.P.C. and conviction under section 255(2) of Cr.P.C.

16.       Similarly the judgment of acquittal in warrant cases are given under section 248(1) of Cr.P.C. and conviction under section 248(2) of Cr.P.C.

17.       If the conviction is given, then the copy of the judgment is to be provided to the accused forthwith free of cost.

18.       In case of sentence the magistrate is empowered to pass the sentence up to three years and fine not exceeding Rs. 10,000/-.  Similarly the CJM can pass sentence up to 7 years.  ( see Section 29 of Cr.P.C.)

19.       The sentence of imprisonment in default of payment of fine can be given not exceeding 1/4th of the sentence which magistrate can inflict as punishment.  (See Section 30 of Cr.P.C.)

20.       The magistrate can also award compensation to the complainant while recording the judgment of conviction.  ( See Section 357(1) and 357 (2) of Cr.P.C.)

21.       If the accused has undergone any detention during the period of investigation and trial then while convicting him, a set off can be given under section 428 of Cr.P.C.)

22.       Upon conviction, accused can request for suspension of sentence under section 389 (3) of Cr.P.C.

23.       In view of section 437-A of Cr.P.C. accused has to submit bail bonds to appear before the next appellate court.

Cross-Examination in cyber crime matters

Cross-Examination in cyber crime matters

Cross-examination almost always ventures into dangerous territory. The reason for this is that the witness is usually adverse or hostile to your client’s position.

Therefore, the cyber lawyer must control the witness and, more particularly, the witness’ testimony. This can be accomplished by following certain guidelines during the cross-examination.

1. Do not ask a question unless you are reasonably certain that you already know the answer. (Some would say do not ask the question unless you are certain you know the answer). Cross-examination is not the time to discover new facts. It is not the time to be curious. Remember, curiosity killed the cat. It may likewise kill your case.

2. Treat the witness fairly. You should not be hostile, especially if you want to gain concessions from the witness, including that he/she may have been mistaken in his/her testimony on direct examination.

3. Use leading questions. A leading question suggests the answer, which is usually “yes” or “no.”

For eg : Is it true that the computer had Anti-virus installed in it?

Was it licensed ?

4. Never ask open-ended questions—questions that ask “how” or “why” or that require the witness to explain. These types of questions can lead to disaster. Never allow a witness to explain anything on cross-examination.

5. Listen to the answers. Do not mechanically ask one question after another without listening to the witness’ answers. The answers may contain the favorable testimony that you are seeking to obtain in the crossexamination. When this happens, you have accomplished your task and you should consider ending your cross-examination. On the other hand, if you do not listen to the answers you may not hear damaging testimony that should be addressed.

6. Do not allow the witness to repeat (and therefore reinforce in the mind of the judge) the testimony given on direct examination. There is no reason to ask a question that allows the witness to repeat his testimony. The odds are very small that the witness will testify differently on cross examination. You know the testimony given on direct examination, the witness knows the testimony, the judge knows the testimony. So just dive into your cross-examination.

7. Keep your questions “short and sweet” and in plain English. Your goal is to obtain one fact with each question. Ideally, each question should be posed as a declaratory statement of a single fact calling for affirmation by the witness. This will make the cross-examination much more manageable for you, prevent objections from your adversary (for example,that you are asking compound questions), and allow the judge to more easily follow and understand your cross-examination.

8. Ask the important questions at the beginning and end of your cross-examination. People, including jurors, remember best what they hear first and last. Conclude your cross-examination on a high note—your strongest point.

9. Your cross-examination should be brief. Remember, you are trying to “score points” to be used in your closing argument. In a lengthy crossexamination, your strongest points will be lost and the less significant points will be forgotten by the judge.

10. Control the witness’ answers. The best way to control the witness’ answers is to ask simple and clear questions. By doing so, you will not give the witness an opportunity to provide harmful testimony. If your question calls for a “yes” or “no” answer and the witness provides additional testimony that is harmful to your case, you should ask the court to strike the testimony as being nonresponsive to your question. Although you cannot “unring a bell,” the judge eventually will understand that the5 witness’ conduct is improper. If the witness answers a question other than the one you asked, ask it again, and yet again if necessary.

11. Do not ask one question too many. Remember the purpose of crossexamination—you are trying to obtain favorable testimony so it can be used in your closing argument. You need not ask the ultimate question that will drive your point home

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.