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.

International LEA Cyber Crime Operations of 2015

What was so different in 2015? Wasn’t it just more of the same? Well, not quite. As the year has ended, lets look back at some unprecedented cases that redefined risk and loss resulting from cyber attacks and international cooperation amongst International Law and Enforcement agencies. There is a common denominator that groups them as one: The mob has fully moved into the Web.  I feel there is no such thing as ‘disorganized cybercrime' hence 'Organised and concerted International action against cyber crime is the need of the hour"

Examples of LEA Cyber Crime operations in 2015:

• An international operation involving law enforcement organisations, government cyber security teams and private organisations has targeted the Dorkbot botnet. Europol, Interpol, the US department of homeland security, the US National Cyber Investigative Joint Taskforce and the FBI partnered with Microsoft and other private sector organisations to disrupt the Dorkbot infrastructure, including command and control servers in Asia, Europe, and North America. This included seizing domains to disrupt the botnet operators’ capacity to control their victims’ computers.
  Source: ComputerWeekly, 7 December 2015
• FBI, Security Vendors Partner for DRIDEX Takedown – Multiple command-and-control (C&C) servers used by the DRIDEX botnet have been taken down by the Federal Bureau of Investigation (FBI), following the action taken by the National Crime Agency (NCA) in the UK.
  Source: TrendMicro, 13 October 2015
• In a global operation coordinated by the INTERPOL Global Complex for Innovation in Singapore, a group of leading IT companies including Kaspersky Lab, Microsoft, Trend Micro and Japan’s Cyber Defense Institute, in collaboration with law enforcement agencies, have disrupted the Simda criminal botnet – a network of thousands of infected PCs around the world.  Source: Kaspersky, 13 April 2015
• The [Beebone] botnet takedown, known as Operation Source, was led by Europol’s European Cybercrime Centre (EC3) and the Joint Cybercrime Action Taskforce (J-CAT). Most EU member states and law enforcement partners around the world coordinated in the action. The Dutch High Tech Crime Unit led the J-CAT effort. The U.S. Federal Bureau of Investigation provided valuable support. Source: Intel Security, 9 April 2015
• A law enforcement operation led by Europol and assisted by Symantec, Microsoft,  and a number of other industry partners, has today seized servers and other infrastructure owned by the cybercrime group behind the Ramnit botnet (detected by Symantec asW32.Ramnit.B). The group has been in operation for at least five years and in that time has evolved into a major criminal enterprise, infecting more than 3.2 million computers in total and defrauding large numbers of innocent victims. It is hoped that today’s operation will strike a significant blow against the resources and capabilities of the gang.Source: Symantec, 25 February 2015
• International operation targeting GameOverZeus and Cryptolocker malware variants. These malware variants are estimated to have cost the UK £500 million in losses.Coordinated activity across 10 countries led to the botnet behind the malware being taken offline for two weeks, allowing the public to take steps to protect themselves (e.g. update anti-virus). Combined with extensive global media coverage 32% drop in GameOverZeus infections, estimated £100 million in losses prevented. Source NCA-UK
• UK investigation targeting the users of Blackshades, a Remote Access Tool able to access users’ webcams. FBI intel - over 1100 UK-based purchases on Blackshades. NCCU coordinated a week of arrests, involving ROCUs, MPS & Police Scotland, targeting 50+ individuals for Pursue action. 20 arrests across 10 Regions. Remaining individuals subject to Prevent activity – cease & desist letters, visits by ROCU & NCA officers, media coverage Linked to a global day of action with over 100 arrests in the US, Australia, Asia & Europe. An important test of the NCCU’s coordination of UK law enforcement.

Malware in Cars and Hacking Cars

If a hacker were to bring in a malware-harboring car for service, the vehicle could spread that infection to a dealership’s testing equipment, which in turn would spread the malware to every vehicle the dealership services, kicking off an epidemic of nasty code capable of attacking critical driving systems like transmission and brakes.

Once you compromise a dealership, you’d have a lot of control,” “You could create a malicious car…The worst case would be a virus-like system where a car pulls in, infects the dealership, and the dealership then spreads that infection to all the other cars.”

That “auto brothel” attack is hypothetical, but it’s not as farfetched as it might seem. In 2010 and 2011, researchers at the University of California at San Diego and the University of Washington revealed a slew of hackable vulnerabilities in a 2009 Chevy Impala that allowed them to perform tricks like disabling its brakes, although they didn’t name the make or model of the vehicle at the time. One of those attacks was designed to take advantage of an auto dealership: The researchers found that they could break into the dealership’s Wi-Fi network and gain access to the same diagnostic tools. Wi-Fi connections. From there, they could hack any vehicle an infected tool plugged into.

Stefan Savage had said

“Any car ever connected to it, it would compromise,” the computer science professor who led the UCSD team in 2011. “You just get through the Wi-Fi in the dealership’s waiting room and the attack spreads to the mechanics shop.”

Malware and Ransomeware analysis in 2015

In 2015, there were 1,966,324 registered notifications about attempted malware infections that aimed to steal money via online access to bank accounts.Ransomware programs were detected on753,684 computers of unique users; 179,209 computers were targeted by encryption ransomware.Kaspersky Lab’s web antivirus detected121,262,075 unique malicious objects: scripts, exploits, executable files, etc.Kaspersky Lab solutions repelled 798,113,087attacks launched from online resources located all over the world.34.2% of user computers were subjected to at least one web attack over the year.To carry out their attacks, cybercriminals used6,563,145 unique hosts.24% of web attacks neutralized by Kaspersky Lab products were carried out using malicious web resources located in the US.Kaspersky Lab’s antivirus solutions detected a total of 4,000,000 unique malicious and potentially unwanted objects.

Woman faces jail for tagging sister-in-law on Facebook:-

Woman faces jail for tagging sister-in-law on Facebook:-

America, New York-based Maria Gonzalez, who was banned from contacting Maribel Calderon after her divorce from Maribel's brother Rafael Calderon, is charged with second-degree criminal contempt for a Facebook post in which she called her former sister-in-law "stupid."

This woman is facing a year in jail for tagging and calling her former sister-in-law "stupid" in a Facebook post after she was prohibited from contacting her ex-husband's family by a court order.

New York-based Maria Gonzalez, who was banned from contacting Maribel Calderon after her divorce from Maribel's brother Rafael Calderon, is charged with second-degree criminal contempt for the alleged post.

Gonzalez is accused of calling Maribel "stupid" in the post and saying, "You and your family are sad ... You guys have to come stronger than that!! I'm way over you guys but I guess not in ya agenda."

Gonzalez tried to argue that the protection order "did not specifically prohibit (her) from Facebook communication" with her Maribel.

Westchester County Supreme Court Justice Susan Capeci disagreed, saying, "The order of protection prohibited the defendant from contacting the protected party by electronic or any other means," New York Post reported.

"The allegations that she contacted the victim by tagging her in a Facebook posting which the victim was notified of is thus sufficient for pleading purposes to establish a violation of the order of protection," the judge ordered.

Manhattan matrimonial attorney Michael Stutman, who isn't part of the case, said the ruling proves his client adage, "Everything you post anywhere can possibly be used against you."

Gonzalez's attorney, Kim Frohlinger, said she would not appeal the ruling.

Source:PTI

DSC & Electronic Signature Laws in India

DSC & Electronic Signatures Law in India
By Prashant Mali

What is a DSC i.e Digital Signature Certificate? 

Digital Signature Certificates (DSC) are the digital equivalent (that is electronic format) of physical or paper certificates. Examples of physical certificates are drivers' licenses, passports or membership cards. Certificates serve as proof of identity of an individual for a certain purpose; for example, a driver's license identifies someone who can legally drive in a particular country. Likewise, a digital certificate can be presented electronically to prove your identity, to access information or services on the Internet or to sign certain documents digitally. Licensed Certifying Authority (CA) issues the digital signature. Certifying Authority (CA) means a person who has been granted a license to issue a digital signature certificate under Section 24 of the Indian IT-Act 2000.

The list of licensed CAs along with their contact information is available on the Controller of Certifying Authorities (CCA) portal (www.cca.gov.in).

Digital Signature Vs. Digital Certificate

Digital signatures are based on three-pointers for authentication – Privacy, Non-repudiation and Integrity in the virtual world, while the objectives of the digital certificate are the authentication of documents, and bind the person who is putting the digital signature, which based on public key cryptography requires two separate keys, as secret and public. However, both the keys are linked together, one key encrypts the plain text, and another decrypts the ciphertext, and neither key can perform both the functions. The other difference is digital signature is an electronic process of signing an electronic document while a Digital Certificate is a computer-based record which is the identification of certifying agency or the identity of a subscriber

Digital Signature Vs. Electronic Signature

The Information Technology Amendment Bill 2006, replaces the word “Digital” with the word “Electronic” at several places in the principal act, which creates a slight difference between the two, electronic signature is wide in nature, while the digital signature is one of the many kinds of electronic signature.Section 2(ta) “electronic signature” means authentication of any electronic record by a subscriber by means of an electronic technique specified in the second schedule and includes digital signature and section 2(p) defined “Digital Signature Certificate” means a Digital Signature Certificate issued Under sub-section (4) of section 35. 

Aadhaar eSign based electronic signatures being used by Legality are completely legally accepted and secure manner of electronically signing documents, under effect of Gazette Notification No. 2015 Jan -GSR 61(E) Electronic Signature or Electronic Authentication Technique and Procedure Rules, 2015. Aadhaar eSigns are recognised as an accepted method of secure electronic signatures as part of the Second Schedule of the Information Technology Act, 2010 (IT Act). The IT Act recognises secure electronic signatures such as Aadhaar eSign as having legal validity equivalent to that of physical signatures. Aadhaar eSigns work under the regulatory framework set up by Controller of Certifying Authorities, Ministry of Electronics and Information Technology, Government of India.

What types of e-signatures are recognized under the IT Act, 2000?

The IT Act recognizes the two following types of signatures:

(1) E-signatures that combine an Aadhaar with an eKYC service

Users with an Aadhaar ID, the unique identification number issued by the Indian government to all Indian residents, are free to use an online e-signature service to securely sign documents online. In this case, the online e-signature service integrates with an Application Service Provider (ASP) to provide users with a mobile or web app interface that they can interact with. The users then use this app interface to apply e-signatures to any online document by authenticating their identity using an eKYC service such as OTP (One time passcode) provided by an eSign Service Provider. The online e-signature service works with an accredited service provider to provide certificates and authentication services that comply with government guidelines.

(2) Digital signatures that are generated by an asymmetric crypto-system and hash function

An ‘asymmetric cryptosystem’ refers to a secure pair of keys: a private key and a public key. Both are unique to each user, and can be leveraged to verify and create an e-signature.

In this scenario, users obtain a digital signature from a reputed Certifying Authority (CA) in the form of a digital certificate. These certificates typically include the user’s name, public key, the expiration date of the certificate, and other necessary information about the user. Operating systems and browsers typically maintain a list of trusted CA root certificates that are used to verify digital certificates issued by a CA. The user might also be issued a USB token containing the digital-certificate-based digital ID, along with a personal PIN, to sign a document.

 What are the factors that make e-signatures valid in India?

Here are the 5 criteria that e-signatures need to satisfy in order to be valid as per the IT Act:

(1) E-signatures must be uniquely linked to the person signing the document. This condition is often met by issuing a digital-certificate-based digital ID.

(2) At the time of signing, the signer must have total control over the data used to generate the e-signature. Most online e-signature service providers allow signers to directly affix their e-signature to the document in order to meet this requirement.

(3) Any alteration to the affixed e-signature, or the document to which the signature is affixed, must be detectable. This is often met by encrypting the document with a tamper-evident seal.

(4) There should be an audit trail of steps taken during the signing process.

(5) The digital signature certificate must be issued by a Certifying Authority (CA) recognised by the Controller of Certifying Authorities (CCA) appointed under the IT Act, 2000.

Can document of all kinds be executed using e-signatures?

No. Certain documents that require a notarial process, or must be registered with a Registrar or Sub-Registrar, can only be executed using handwritten signatures to be legally enforceable. These primarily include:

(1) Negotiable instruments such as a promissory note or a bill of exchange other than a cheque

(2) Powers of attorney

(3) Trust deeds

(4) Wills and any other testamentary disposition

(5) Real estate contracts such as leases or sales agreements

You can’t be a Company director without mobile phone, email ID and DSC, under the new KYC norms. This is the fallout of the new DIR-3-KYC norms brought forth by the Ministry of Corporate Affairs (MCA). The Rules require every director to file the KYC form by 31 August 2018, after which the Directors’ Identification Number (DIN) granted to the director shall be “deactivated”. The rules also lay down that such de-activated DIN shall be re-activated only after the person has filed the KYC Form. One of the mandatory requisites of the new KYC form is that the director shall provide his/ her mobile number, email ID and file the e-form with his/her own digital signature (Differential Scanning Calorimetry or DSC). 

What would be the role and responsibilities of Special IG-Cyber, Mr. Brijesh Singh, IPS in the State of Maharashtra ? My views

What would be the role and responsibilities of Special IG-Cyber,  Mr. Brijesh Singh, IPS  in the State of Maharashtra ? My Views

Let me first congratulate the Government of Maharashtra for creating and appointment of IG Cyber Crime and will also applaud for creating and appointing the post of DCP-Cyber Crime in the city of Mumbai. This definitely shows the approach and seriousness towards the menace of cyber crime.

With the intention to curb women atrocities and implementation of child prostitution and unethical business restriction Act effectively there was a state level Women Atrocities Prevention Cell and department. This department along with Cyber crime would be headed by, the newly created Special Inspector General of Police (Women Atrocities Prevention & Cyber Crime). Thus the newly formed department would also look after all the work previously looked after by cyber crime cell of CID, Maharashtra state

working as a State Nodal Agency. This post was created vide Government Resolution dated 5^th January 2016.  The work of the "Special IG (Women Atrocity Prevention & Cyber Crime)" office would do is as follows:

1. Statistical

1.1. Compiling data about FIR either registered only under The IT Act,2000 or where sections of The IT Act,2000 are applied in other crimes.

1.2. Compiling detected crimes and information about various accused people.

1.3. Compiling & studying data about various cases pending in courts and about decided cases.

1.4. To study techniques used in crime and decode its modus operandi

1.5. As required to gather other information and decimate the same

1.6. To represent Maharashtra State police in state and central level conferences.  

2. Investigation

2.1. Wherever State Government orders to investigate crimes which are sensitive and important matters.

2.2. Helping technically and with directions other Investigating Station House Officers present in various cyber cells across the state.

2.3. Will have right to contact and ask any important information from Mobile companies, IT Companies, ISP for investigation of cyber crime.

2.4. To coordinate between investigating agencies of other states and central Government.

3. About Training

3.1. To prepare human resource by training officers and staff in the state 

3.2. To coordinate with other institutions about training, exchanging information and try and get relevant training for staff and officers of the state.

3.3. To compile information about new technology & to be in contact with experts. With the help of experts include this technology in the training and keep the training syllabus updated. Coordinating with CDAC- Pune, MITCON-Pune, CBI Academy- Ghaziabad and also to keep coordination with CDTS which is a central Governments organisation in the field of computers providing  advanced training. 

3.4. To train other staff and officers of criminal justice system about investigation of computer crimes & Evidence.

3.5. In association with experts and institutions associated with software, film and music industry, organising various discussions, conferences and workshops about crimes of cyber/computer & piracy.

3.6. To organize meets with NASSCOM, DSCI, Forensic Lab (Kalina, Mumbai) who are working in the cyber areas and give them deeper information about cyber crime investigation.

b) What are the challenges facing Maharashtra cybercrime 

Ans: Less technically qualified man power, Cyber police station seen as side posting, central coordination of cyber crimes happening across the state is poor, dedicated contact points with NGO working in the field of cyber is absent. The most important is trust in the citizens that police will first understand and then solve the crime which is involving technology is very less and Government need to brand building exercise that the police force is a technologically advanced force. 

How can he plan to build skills and capacity of Maharashtra cyber crime department

This can happen by compulsory cyber crime investigation & Electronic evidence handling training with exams at the end linked to their promotion or transfers. My observation has remained that though the lower rung officers are keen to learn and are found sincere, the officers of Police Inspector rank who are designated IO are often not sincere towards there training. He should also lobby with central Government to nominate API(Assistant Inspector of Police) as Investigating Officer or IO in all cyber crime related matters as it is a Police Inspector as of now.

What are the key initiatives the state should take to tackle the cybercrime.

Ans: What i want to advice all state’s and not only state of Maharashtra is to come out Standard operating procedures for proactive policing as it is done for traditional policing. even thou training remains the part of proactive policing but other measures like raids and detention of know cyber perpetrators , known hackers and online abusers has become must to create deterrence in the society. Raiding mobile shops which supply spy and malware is the need of the hour. Visiting mobile shops during patrolling across the state and country should be made compulsory. Police department having its own cyber war games is now the need of the hour as civilian cyber infrastructure is counted within the jurisdiction of the police.

What can be the immediate action needed to curb cyber crimes

We need 2 cyber police stations in the city of Mumbai and at least 4 cyber cells. Today tag of being only cyber police is a bygone; we need further bifurcation of cyber police in teams so they develop specializations like

A. Cyber financial crimes team (involving ransomware, online banking/credit card & other online scams/frauds) team,

B.  Cyber Abuse(Defamation & religious abuse) team,

C. Cyber Corporate(Data Theft, Source code theft, hacking & Espionage) team.

D. Cyber Grievous Crimes (Cyber terrorism, online radicalization, civil cyber warfare, Death due to cyber crime etc.) team.

Mumbai being financial capital. i feel and suggest the state Government to have 2 special cyber crime courts in Mumbai and at least one in all leading districts of Maharashtra to begin with. State Government also should bring in the bench of Cyber Appellate tribunal and make the Adjudication officers office fully functional with dedicated staff and regular hearings for disposing civil actions under the IT Act,2000 in the set period of six moths as mentioned in the Law.

Advocate Prashant Mali is Noted International Cyber Law & Cyber Security Expert and a High Court Lawyer from Mumbai. He is also a famous cyber-thought leader and accomplished author, his thoughts & speeches are well applauded internationally.