Cyber Stalking 354D Fastest Decided Case in India

India's fastest decided Cyber Stalking Case under IPC 354D for Sending Obscene messages on WhatsApp and Talking Obscene on Phone. 

The Story:

Mr. Atul Ganesh Patil use to work as a Security Guard in  company called "Motherson" which manufactures Bumpers of car and is located in Chakan MIDC near Pune in Maharashtra. The Victim girl had come for job interview and at the entry had written down her personal mobile Number in the entry Register. The young guard who is resident of Yavatmal District and worked in Chakan, copied down the number from register, saved it in his mobile and started sending obscene WhatsApp messages from his mobile phone and even called her to talk obscene things thereby committing crime of stalking on her. Technically i feel had committed two more crimes i.e Data Theft and Breach of Privacy. I have seen such crimes happening across India, where the cell number is obtained and girls are chased, i see after digital payments have increased and for digital wallet purpose cell phones are shared, privacy compromise via mobile number sharing has increased in India. 

In this case, Victim blocked this convicted guard on her phone and social media. The desperate guard then started chasing her by sending obscene messages from his friends and known person mobile phones.

Police traced all these phones.

These all people whose Cyber stalking case law cyber law cyber crime obscenity case law WhatsApp case law state v Patil phones were used to send messages were made witness and later the accused Guard also accepted his crime. Judge pronounced his Order in open court .

Case Details: 

"State Vs Atul Ganesh Patil"

The FIR No. 17/17 was registered in Chakan Police Station on 10/01/2017 

near Pune.

Case decided and conviction ordered in 48 Hours. 

The investigation was done in 24 Hours and  recording of 5 Witness also was completed today on 11/01/2017. 

Today itself, punishment for 2 years rigorous imprisonment and Rs.500/- fine was pronounced in Khed (Rajguru Nagar) JMFC Court near Pune in the state of Maharashtra in India which Presided by Judge Mr. Y J Tamboli. 

What is Section 354 D of The Indian Penal Code

(1) Any man who—

i.         follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

ii.         monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking;

Provided that such conduct shall not amount to stalking if the man who pursued it proves that—

i.         it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

ii.         it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

iii.         in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

Classification under schedule 1 of CrPC

1. Upto 3 years + Fine for first conviction and is Bailable

2. Upto 5 years + Fine for second or subsequent conviction and is Non-Bailable

Composition under Section 320 of CrPC

Offence in Non Compoundable

Case Laws other than above for 354 D

1. Dara Singh And Another vs State Of U.P. on 17 June, 2016

Bench: Amar Singh Chauhan, Allahabad HC
2. Aarti Katiyar   Vs.  State of Raj.  S. B. Cr.  MISC. PETITION  NO. 3463/2013, Rajasthan HC

What do we mean by a “right of privacy”?

Justice Cooley in 1888 defined it simply as a right to be left alone. Alternatively, it may be defined as a right to be anonymous. The two definitions are quite different but both are important, and the right to be anonymous is a form of privacy that has particularly significant implications in cyberspace. In legal terms, our right of privacy amounts to a right to be free from government intrusion into certain areas of our lives and a right to be free from intrusion by other individuals into our “private” lives. In India, the former is protected largely through Constitutional interpretation and a number of statutes; the latter is protected largely through the law under tort principles.

Advocate Prashant Mali

International Cyber Crime Lawyer

#cybercrime #cybersecurity #cyberstalking #cyberlaw #law # caselaw

IT Act, 2000 is a Special Act : Case Law

Cyber Law : Case Law for

1.IT Act, 2000 is a Special Act.

2. Section 292 of IPC is not applicable in Internet based Obscinity only Section 67 of The IT Act is Applicable.

Offence relating to sale of obscene material – Having a nexus or connection with electronic form of transmission covered by IT Act which is a special law – Special law shall prevail over general and prior laws – When the Act in various provisions deals with obscenity in electronic form, it covers the offence u/S.292 IPC – Hence, accused discharged u/S.67 of IT Act cannot be proceeded u/S.292.... 

2017 ALL SCR (Cri) 59

The Supreme Court recently in Sharat Babu Digumarti v. Govt. of NCT of Delhi – 2016 SCC OnLine SC 1464, has ruled that in a case if no charge has been made out under Section 67 of IT Act (dealing with obscenity in E-form), then the accused cannot be prosecuted against under Section 292 IPC.

The decision came in perhaps one of the first cases of Cyber Obscenity that hit India – The Bazee.com case, where Avnish Bajaj was prosecuted for an offence under the IT Act and Section 292 of the IPC in the capacity of CEO of Baazee.com. Later, Avnish Bajaj was discharged of all offences on the ground that in the absence of company being made an accused, vicarious liability cannot be fastened to Avnish Bajaj, as he was arraigned only in the capacity of being a director and had played no personal role attributed to him.

In that very case, another official of the company Sharat Babu Digumarti was also prosecuted. The High Court opined that Section 67 of the IT Act (dealing with publishing of obscene material in e-form) was not attracted in the present case, however proceedings u/s 292 IPC can continue. Aggrevied by this decision, the appellant approached the Supreme Court, which held that :-

i) S.67A and Section 67B of the IT Act is a special offence dealing with publishing of obscene information in electornic stream. In this regard, Section 79 of the IT Act provides a crucial protection to intermediaries having regard to pecularities of the Cyber World, which are not available in a traditional prosecution for obsenity in offline form – and therefore, Section 292 of the IPC has no application in such cases, especially when Section 292 was never amended to include the words “electronic Record” and since it does not afford the accused with additional safeguards laid down in S.79 IT Act through which an intermediary can avoid liability by certain remedial actions/due dilgence mechanisms.

ii) The Court essentially applied the doctrine of “Generalia Specialibus non derogant” where a more specific law overrides the more general one.

The relevant excerpts from the Court decision are reproduced as follows :-

“30. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Section 67A and 67B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals.However, the said protection has been expanded in the dictum of Shreya Singhal (supra) and we concur with the same. Section 81 also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 of the IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.

…

34. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.

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

STAGES OF CYBER CRIME TRIAL in COURT

STAGES OF CYBER CRIME TRIAL in COURT

1. Registration of FIR under The IT Act,2000 or IPC

2. Commencement of investigation and collection of evidence and Electronic/Digital evidence by investigating

agency. During this time, at any stage decided by investigating agency, accused

persons can be arrested

3. Production of accused before Magistrate (within 24 hours)

Remanded to police custody for further investigation; or

Remanded to judicial custody.

Note:- Remand does not mean that the police can misbehave or beat the

person. Remand means interrogation by the police.

4. Bail hearing before appropriate court – Arguments of the defence is denied by the

public prosecutor.

5. After investigation is completed:

If investigating agency feels a prima facie case is made out, chargesheet is

filed in Court through the public prosecutor.

If police feels that no prima facie case is made out, a final report filed in

Court. Which could be C-Final which effectively closes the case without trial.

6. Decision is taken by the Court after hearing the public prosecutor and the counsel for defence:

On question of Chargesheet:-

Court can reject chargesheet, in which case the accused is discharged.

Court can accept that a prima facie case is made out, frame the charges, and

post the case for trial. Case goes to next stage 

(7).On Final Report

Court can accept the final report- case is closed and accused is discharged

Court can reject the final report, and

Direct the police to further investigate the case. Case goes back to Stage (2)

Direct the case to be posted for trial. Case goes to next stage (7).

7. Framing of Charge by Court

Accused pleads guilty to the Charge. Depending on the seriousness of the crime,

the Court may either convict on the basis of plea or post the case for trial.

Accused pleads not guilty. Case is posted for trial.

8. Trial commences – examination of witnesses and other evidence

Examination of prosecution witnesses by public prosecutor, marking of exhibits,

and cross-examination by defence counsel.

9. Statement of Accused under section 313, CrPC.

10. Defence Evidence: if defence wants to, it examines defence witnesses, who are

cross examined by the public prosecutor, and exhibits defence evidence.

11. Final Arguments – Public Prosecutor (Government Lawyer) and the defence counsel present their

arguments.

12. Judgment and sentence by the Court:

Acquittal of accused, or

Conviction, in which case

• Arguments of public prosecutor and defence counsel on sentence.

• Judgment of Court passing sentence.

13. Appeal (within specified period of limitation) - Can be filed by party aggrieved by judgment on acquittal/ conviction/ reduction of sentence.

14. On notice being issued to the opposite parties, arguments are placed before Appeal

court of defence counsel and the public prosecutor.

15. Judgment of Appeal in higher Court.

How Cyber Parents should Behave with there Real Children?

How Cyber Parents should Behave with there Real Children?

Why children today are so bored , cannot concentrate on studies, cannot wait, get easily frustrated and have no REAL friends

Children are getting worse in  many aspects.  

We  have seen and continue to see a decline in children’s social, emotional, academic functioning, as well as a sharp increase in learning disabilities, depression and aggression.

Today’s children come to school emotionally unavailable for learning and many factors in our modern lifestyle contribute to this.

1. *Technology*

“Free babysitting service" 

Compared to virtual reality, everyday life is boring. When kids come to the classroom, they are exposed to human voices and inadequate visual stimulation as opposed to being bombarded with graphic explosions and special effects that they are used to seeing on the screens. After hours of virtual reality, they are  unable to process lower levels of stimulation. Technology also hinders parents' emotional availability.

Limit the use of technology. 

Have fun times together. Go for a picnic, trekking, a walk in the garden....

2.  *Instant Gratification*.

Kids get everything they want the moment they want.

“I am Hungry!!” 

Here is the ready snack (packets of junk)

“I am Thirsty!” 

Here is the drink (bottle of soft drink). “I am bored!” 

Use my phone. Watch TV.

The ability to delay gratification is one of the key factors for future success. We have all the best  intentions in mind to make our children happy, but unfortunately, we make them happy at that moment but miserable in the long term.  

To be able to delay gratification means to be able to function under stress. 

Our children are gradually becoming less equipped to deal with even minor stressors and "frustrations " which eventually become huge obstacles to their success in life.

Teach the kids to delay gratification. Do not give in to demands INSTANTLY unless it is urgent

3. *Kids' rule*

“My son doesn’t like vegetables” 

" He doesn’t like going to bed early” “He doesn’t like to eat breakfast” 

“He doesn’t like toys, but she is very good at his IPAD” .....

Children dictate parents.

If we leave it to them, all they are going to do is eat pasta, noodles, pizza and chips,  watch TV, play on their tablets/smartphones and never go to bed. 

We are giving them what they WANT even when we know that it is not GOOD for them.

Without proper nutrition and a good night’s sleep, our kids go to school irritable, anxious, and inattentive.  

In order to achieve our goals,  we have to do what NEEDS to be done.

If a child wants to be an 'A' student, he *needs* to study hard. 

If he wants to be a successful soccer player, he needs to practice every day. Our children know very well what they WANT  but not what is NEEDED to achieve that goal. This results in unattainable goals that leaves the kids disappointed.

Teach the difference between WANT & NEED

4. *ONLY Fun*

We have  created a fun world for our children. 

Endless Activites!! There are no dull moments. The moment it becomes quiet, we run to entertain them again because otherwise we feel that we are not doing our parenting duty.  

Why aren’t children helping us in the kitchen or with laundry? Why don’t they tidy up their cupboards? This is basic monotonous work that trains the brain to work and function under “boredom”.

Teach them to do "boring" chores like folding the laundry, setting the table, tidying up after meals, packing and unpacking their own bags....

Let them have unstructured time. 

Set limits. 

Make schedules for meals, sleep, study,  outdoor play, technology usage.....

5. *Limited social interaction*

Kids used to play outside, where in the  unstructured, natural environment, they learned and practiced their social skills.  

Competition (tuition/coaching), Structured Activites (painting, music, karate, zumba, etc) and  Technology replaced the outdoor time.  

Successful people have great social skills. 

Social skills have to be learned and practiced just like other skills.

Teach them social skills, (manners, cooperation, team work, ...)

We are *responsible* for creating the next generation of healthy, happy and successful people.

Sextortion and Laws in India

What is SEXTORTION?

A form of sexual exploitation that employs non-physical forms of coercion by threatening to release sexual images or information to extort monetary or sexual favors from the victim.
Modus Operandi
1) The scammers persuade the dater to send sexually explicit photos. Once they get the photos, the scammers identify themselves as law enforcement, telling the dater they sent the pictures to a minor.
They then tell the person to pay up in order to avoid arrest.
The scammers are not only identifying themselves as law enforcement, they are also using actual names of officers.
“These people are being contacted by Detective Don Peterson and it isn’t me,” Peterson told the paper.
More than 100 people have paid between $500 to $1,500 to try to avoid arrest.
2) The groups is to create online accounts of females and post pictures of attractive ladies to draw clients. They would then post pornographic images and entice their victims to have video chats with them, usually with lewd content and conversation.
Once they obtain the incriminating videos, the groups would threaten to send the video chats to the victim's friends or relatives unless they send money.
The victims are allegedly forced to send $500 to $2,000 – or P20,000 to P90,000 – through Western Union in exchange for the removal of the online video chat.

How to prevent sextortion?
Talk about sextortion
Sextortion thrives on silence; spread knowledge. Talk to two people and ask them to spread the word to two more. Keep the chain going.
Spread the word
Without a name – SEXTORTION – it is difficult to lift an abuse out of the realm of bad things we know happen and passively accept as the way of the world, and into the realm of things we will no longer tolerate and actively seek to change.
Learn more about sextortion
Once you become aware of sextortion, you see how pervasive it is. Gather and share information about sextortion.

Laws in INDIA:
1) Section 66E of Information Technology Act,2000
Violation of Privacy - Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person
2) Section 67 of Information Technology Act
Punishment for publishing or transmitting obscene material in electronic form
3) Section 67A of Information Technology Act
Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form
4) Section 67B of Information Technology Act
Punishment for Child Pornography in electronic form
Interpol investigation
5) Section 387 of Indian Penal Code,1860  for Extortion is also applicable

6) Section 506 of The IPC,1860 2nd Para is applicable if the extortionist is imputing the chastity of the girl. 

India case law for sextortion [ Bail Stayed]

The Supreme Court on 01/02/2016 stayed the anticipatory bail given to sextortion case accused M. Satyanandam, suspended APSPDCL, Divisional Engineer. Satyanandam, who was working as DE in electricity department was booked for active involvement in the gang that sexually exploited women and resorted to extortion. 

He was fourth accused in the case registered at Machavaram on December 11, 2015 following a complaint given by a woman to the commissioner of police.  

An INTERPOL-coordinated operation targeting organized crime networks behind ‘sextortion’ cases around the world has resulted in the arrest of 58 individuals, including three men linked to the group which harassed Scottish teenager Daniel Perry.
Perry, a 17-year-old victim of an online blackmail attempt, died after jumping off the Forth Road Bridge near Edinburgh in July last year.

In the first operation of its kind, information shared between the INTERPOL Digital Crime Centre (IDCC), Hong Kong Police Force, Singapore Police Force and the Philippines National Police (PNP) Anti-Cybercrime Group led to the identification of between 190 and 195 individuals working for organized crime groups operating out of the Philippines.

Maharashtra Cyber Project first batch training

I am involved in coaching the Police officers from all Districts in the State of Maharashtra under the Maharashtra Cyber Project. I have trained them in Cyber crimes with applicable Cyber Laws and intricacies of Electronic Evidence. hese police officers would be placed at 30 different cyber crime cells at each district level in the state of Maharashtra. This is my contribution to make Maharashtra Cyber Safe, and get more convictions in cyber crime matters .

#cybercrime #evidence #law #courts # cyberlaw #cybersecurity

#cybersafe #maharashtra #prashantmali