FIR and remedies against Police in India

Remedies against Police 

Powers of the police in India are laid down in the Chapter XI from Sec. 149 to 153 of Code of Criminal Procedure, 1973 (CRPC). Police officials are also given powers u/s 41, 42 and 151 of CrPC, 1973, to make arrest without a warrant taking into consideration the circumstances. Sometimes they either exceed there power or abuse the same causing injustice to citizens.

Usually, the FIR should be registered in the police station within where the crime took place. But there are situations where police refuse to file FIR. According to new amendment in the law, if police refuse to file FIR there will be two-year imprisonment as punishment. A police officer who comes to know about a cognizable offence can file an FIR himself/herself. It is possible to send a complaint in writing and by post to the Superintendent of Police. If the SP is satisfied with your complaint then he/she shall either investigate the case himself/herself or order an investigation to be made. And it is not always necessary to go in person to register the FIR. Email or phone call is also enough to register an FIR in case of emergency. There are certain sections in the Indian penal code that authorizes to register FIR by the police and also constitutes stringent punishments against refusal in registering FIR.

Section 166 in The Indian Penal Code states about Public servant disobeying law, with intent to cause injury to any person. Whoever, being a public servant, knowingly diso­beys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

Also by Section 166A Public Servant disobeying direction under Law, Whoever, being a public servant knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other, or knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973, in relation to cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509, shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.

Punishment for non treatment of victim is given in the Section 166B that mentions that Whoever, being in charge of a hospital, public or private, whether run by the Central Government, the State Government, local bodies or any other person, contravenes the provisions of section 357C of the Code of Criminal Procedure, 1973, shall be punished with imprisonment for a term which may extend to one year or with fine or with both.

Public servant framing an incorrect document with intent to cause injury is provided in the Section 167 Whoever, being a public servant, and being, as such public servant, charged with the preparation or translation of any document or electronic record, frames or translates that document or electronic record in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either des c r i p tion for a term which may extend to three years, or with fine, or with both.

FIR against police under the IT Act under Section 72 – Breach of confidentiality and privacy Any person who, in pursuant of any of the powers conferred under this Act, rules or regulations made there under, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Police Complaints Authority

In order to keep a check and to curtail the severe problem of police violence or abuse, the Supreme Court of India in Prakash Singh v/s Union of India, [2006 (8) SCC 1], inter alia, instructed the government at state and district level to set up Independent Police Complaints Authority. The main function of these Police Complaint Authorities is to look into the complaints against the police officers. But hardly any actions were taken on the part of State Governments till date due to disinterest on this particular issue. The State Governments must constitute a Police Complaint Authority which should be free from any influence and vested with such legal powers and fruitful resources as are necessary and serve as deterrent to the crooked police official’s misconduct.

Mira Road Call Centre Scam - Accussed Pleads Guilty in USA

Meera road call centre scam accused, Hitesh Patel has pleaded guilty for his role in operating and funding a network of India-based call centers through which local callers and US conspirators scammed US victims out of millions from 2013 to 2016, the Department of Justice reported this week.

Patel was extradited to the United States from Singapore in April 2019 to face charges for this crime. The indictment, unsealed in October 2016, charged Patel and 60 other individuals and entities with general conspiracy, wire fraud conspiracy, and money laundering conspiracy.

According to admissions made in his plea, Patel and co-conspirators developed a scheme in which employees of call centers in Ahmedabad, India, impersonated officials from the IRS and US Citizenship and Immigration Services (USCIS). They threatened to arrest, imprison, fine, or deport victims if they didn't pay alleged fees owed to the government. Victims who fell for the scam were told how to pay, usually via general-purpose reloadable cards or wiring money.

Patel admitted to operating and funding several of these call centers, including the HGLOBAL call center. He communicated with co-conspirators via email and WhatsApp to exchange credit card numbers, telephone scam scripts, deposit slips, payment data, call center operations information and instructions, and bank account details. Scripts included impersonation of the IRS, USCIS, Canada Revenue Agency, and Australian Tax Office officials, as well as payday loan fraud, US government grant fraud, and debt collection fraud.

This week, Patel pleaded guilty to wire fraud conspiracy and general conspiracy to commit identification fraud, access device fraud, money laundering, and impersonation of a federal officer or employee. At the time of his April 3 sentencing, Patel faces up to 20 years in prison for wire fraud conspiracy and five years for general conspiracy. Both counts bring the possibility of a fine up to $250,000, or twice the gross gain or loss from his offense.

Google India to face Criminal Defamation charged in India

Google to face Criminal Defamation in a case filed by Vishaka Industries :

Google India Private Ltd v Visakha Industries and another. Criminal Appeal No. 1987 of 2014 Judgment date : 10.12.2019 

‪Indian Supreme Court said No Protection For Intermediary Under Sec 79 of the IT Act, 2000 From Criminal Defamation Before 2009 Amendment which was as a result of Shreya Singhal Case .

Visakha Industries filed the complaint after the company said it issued legal notices asking Google India to take down the write-up. Google then moved the Andhra High Court for quashing the proceedings, but did not get any relief.

Visakha Industries a public limited company, claimed that it manufactured asbestos cement sheets in all its plants in an environment-friendly manner, but was still targeted by the coordinator of the Ban Asbestos India group. The coordinator wrote a piece against the company, which it claimed injured its reputation. Google had made it easier than ever before to disseminate the defamatory statements to the worldwide audience over the Internet, without taking any due care and diligence to prevent it.

Google India may face Multiple Criminal Defamation cases in India for all cases arising before 2009, Other websites also can face the same fate if courts with jurisdiction agree for delay condoning.

Since Criminal Defamation is allowed for Google, all those bitten by allegedly blackmailing and extortion ist websites like Consumer , Grahak etc should immediately file criminal defamation cases with delay condoning against these websites 

OTP Bombing A New Cyber Crime

OTP SMS Bombing : A new type of revenge cyber crime technique  by people who just get sadist pleasure.

Victim‘s Mobile Phone will start getting hundred/thousands of SMS in his message box from different SMS gateways like Flipkart, Ola, Uber, Zomato, Goibibo, Redbus etc. It can be from any sms gateway via a website which has 'Forgot Password' option on it. 

Earlier, culprits use to run a script which had Forgot Password URLs of 6-7 websites in it and they had to just enter a mobile number of the target victim in the software script, the mobile number gets punched on that website forgot password option for the maximum times the website allows (10 times in many cases). So  now the victim gets 10 OTP messages from that gateway/company whoose 'Forgot Password' link was used and victims mobile number was punched by the culprit several times.

Now a days, Black Hat Developers had developed free bombing apps (namely : Bomb-It-Up) which do the same job automatically having a smart graphical user Interface . The culprit just had to enter the victim's mobile number, no. of messages he want to send and click on a single button 'send'.

These apps are not available directly  on google play store or on IOS App Store but their apk files are easily downloadable from websites when you search for it on google.

Consequences : 

Sometimes people gets thousand/lakh of SMS in their inbox and their memory start filling up, their mobile phone hangs at so much so to the extent that messaging app doesn't even open. This victim person is only left with the option of hard reset with the mobile phone.

Legal Remedy : Section 43(e) read with Section 66 of the IT Act,2000 along with Section 425 of IPC is applicable. This attracts maximum punishment upto 3 years of imprisonment or upto ₹5 Lakhs of fine or both. Remember this is a cognisable offence, so police can arrest the culprit without warrant.

Prevention :

The only prevention to this attack is that 'as soon as you came to know about this attack on your phone, start blocking all the SMS gateways' Generally there are 15-20 gateways at max, block all these gateways once in your messaging app. You'll get no more messages from that gateway.

Know how to Block the SMS

https://www.wikihow.com/Block-Android-Text-Messages

Precaution: Next day  you need to UnBlock the SMS Gateways so you start getting Authentic OTP, PIN ans SMS.

Be Cyber Safe

Adv (Dr.) Prashant Mali

Cyber Security Expert

+919821763157

Matrimonial Fraud - 3 Nigerians convicted for 3 years and Rs 5 Lakhs in Pune

3 Nigerian are convicted for 3 years with ₹ 5 Lakhs fine in Matrimony fraud in chatursingi police station from Pune, Maharashtra 

The Case Facts:

One lady from Pune had opened a profile for marriage on www.bharatmaitrimony.com site. Dr Rajesh Kumar from the U.K accepted her profile, they both share their details and started chatting on Facebook, WhatsApp, and email in Aug 2015.

After one month of chatting Dr. Rajesh told the lady that he has received a secret fund of ₹1.5cr and he can't keep that amount with him, so he wishes to send it to her. And as a pretext of receiving that courier, she was compelled to deposit amount of ₹38.22 Lakhs in 16 different bank accounts of 6 different banks and as per the facts, an FIR was registered at Chatursingi Police Station in Pune.

After technical analysis and chase for 15days at Delhi police from Cyber Cell Pune, nabbed the accused Nigerian citizens.

1) Ogeuri Emmanual Chinaso 

2) Osaramense Smart 

3) Tope Oluwoly 

Seizure of 3 Laptops, 10 mobiles,20 sim cards,8 dongles used for Crime from their house searched was done.

The trial matter was conducted and judgment was given by the Honorable Jmfc Shri M.M.Raut, Shivajinagar Pune.

10 witnesses were examined and the forensics report was admitted. 

All the three accused are convicted and given punishment as 

- u/s 419 rigorous imprisonment of 1 year, 

- u/s 420 rigorous imprisonment of 3 years 

and 

- under sections 66C & 66D of The IT Act,2000 1-year rigorous imprisonment and penalty of Rs. 5 lacs to each accused and in default of payment, 6 months of extra imprisonment.

I feel such convictions in cybercrime matters will lead to deterrence. This is a welcome conviction in the series of other Nigerians getting convicted for online frauds across the country. 
Order Copy For Downloading Below
State of Maharashtra Versus Ogeuri Emmanual Chinaso & ors

Pen drive or memory card is a document- case law

Memory card is a Document and Pen drive is a document 

Gopalkrishnan @ Dileep v. State of Kerala, Crl.A. No. 1794 of 2019 SC November 29, 2019

Held:- The contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial. The court may issue suitable directions to balance the interests of both sides. [Para 44]

The Indian Evidence Act, 1872 – Section 3 – The Indian Penal Code, 1860 – Section 29 – The Information and Technology Act, 2000 – Section 2(1)(t) – Whether the contents of a memory card / pen drive being electronic record as predicated in the 2000 Act would, thereby qualify as a “document” ? 

The Code of Criminal Procedure, 1973 – Section 207 – If so, whether it is obligatory to furnish a cloned copy of the contents of such memory card / pen drive to the accused facing prosecution for an alleged offence of rape and related offences since the same is appended to the police report submitted to the Magistrate and the prosecution proposes to rely upon it against the accused ? 

The Information and Technology Act, 2000 – The Indian Penal Code, 1860 – Whether it is open to the Court to decline the request of the accused to furnish a cloned copy of the contents of the subject memory card / Pendrive in the form of video footage / clipping concerning the alleged incident / occurrence of rape on the ground that it would impinge upon the privacy, dignity, and identity of the victim involved in the stated offence(s) and more so because of the possibility of misuse of such cloned copy by the accused (which may attract other independent offences under the 2000 Act and the 1860 Code) ?

The Indian Penal Code, 1860 – Sections 342, 366, 376, 506(1), 120B and 34 – The Information and Technology Act, 2000 – Sections 66E and 67A.

Gopalkrishnan @ Dileep v. State of Kerala, Crl.A. No. 1794 of 2019 SC November 29, 2019

Balkanisation of Internet Begins with Russia enacting a Law

1st November 2019 the legal seed of Balkanisation of Internet is sowed, a controversial new law took effect in Russia: The so-called "sovereign internet" law, which mandates the creation of an independent internet for Russia, thus creating an island in the cyber space. Is it for availability of Internet during the times of cyber threats or is it for exerting sovereignty at the cost of censoring the Internet remains to be seen. . It was hardly a surprise when the Iranian government  also had announced in May that it has installed a cyberdefense shield and wants to construct “halal Internet”. This germ is in the heads of France and Canada too and China has the infamous great firewall doing its fencing already.

Moscow has just given itself the power to erect a digital or cyber fence  around its internal network. How effective is the fence and isolation only time will tell us, but the point is made and it is made legally now.

President Putin signed into law, new rules that would enable the creation of a national network that can operate independently from the rest of the world. Among other things, the law allows Roskomnadzor, Russia's telecoms agency, to shut the country off from external traffic exchange, creating a purely Russian web.

The government has said the regulations are part of an effort to protect Russia by creating the ability to sustain a fenced-off national network, in the event that a foreign state interferes with Russian cyberspace. The official newspaper Rossiiskaya Gazeta said the law coming into force should not affect internet users, but it "will ensure the availability of communication services in Russia in case of threats."

Yes, this could make it easier for the Russian government to censor, reroute or switch off internet traffic to block access to politically sensitive content and online extremism. To control internet traffic, and to detect content, the law requires all internet providers in Russia to install special hardware provided by Roskomnadzor.

That would enable the use of Deep Packet Inspection (DPI) technology, which involves data processing that looks in detail at the contents of the data being sent. DPI, for instance, is used in by China for its Great Firewall to filter content it deems harmful to Chinese citizens.

The Telegram ban, however, showed the limits of Russian efforts to regulate cyberspace. A court in Moscow banned Telegram after the company refused to provide encryption keys to the FSB, but founder Pavel Durov said Telegram would use "built-in methods" to bypass the ban. Telegram, as of date is still widely available in Russia.

Russia has also circulated  a draft treaty in UN that would allow countries to solidify their hold over information and communications technology within their borders, enabling some countries to further restrict activities and speech on the internet, while also stressing governments’ sovereignty in cybercrime investigations. 

Just as the Ottoman Empire and Yugoslavia fractured (balkanised) into a series of smaller states, the same thing is happening to so called,  the “world wide web.” Instead of a global cyber space, the cyber boundaries have started to mirror the political and commercial boundaries of the sovereign states and Russia is leading the scene. 

Author Is Ph.D. (International Cyber Law and Cyber Warfare) and a Renowned practicing Cyber Lawyer . His PhD Research results has predicted that the Internet would be balkanised .

Email: prashant.mali@cyberlawconsulting.com