Navy man in Jail for 2 years for Child Pornography, cyber crime in India

Navy man gets 2 years Jail for Child Pornography, cyber crime in India : Cyber crime conviction
By Prashant Mali

In the case of Dilip Kumar Vs State of Telangana 

the accused (who is working in Navy then) is convicted for two years rigorous imprisonment and Rs 15,000 fine.

The story:

Accused has same Family name "Sinha" as the Victim from Hyderabad. Accused, a Navy Personnel belong to State of Bihar and was posted on INS Shikra, Mumbai. Accused had sent a facebook request to this victim minor girl, who also happens to be a child of high ranking defence personnel . The victim after finding the same surname was obliged to accept the facebook friend request. Accused then proposes the victim minor girl for a online relationship, to which she refuses. Accuses starts enticing and harassing the victim by sending her obscene, vulgar, abusing and insulting chat messages. Victim then confides this to her parent, who also tries to persuade the accused not to repeat such actions, but the accused remains adamant. The complaint is filed with the police and the cyber crime wing, CID of Telangana Police (Then AP Police) investigates the crime, to find the accused to be an Indian Navy man.

The Court Proceedings and Order :

Pronouncing judgment today, after examining 11 prosecution witnesses, including outstation witnesses, FSL experts etc., Hon,ble I^st Addl Chief Metropolitan Magistrate, Hon’ble Moka Suvarna Raju (I/c VI ACMM Court) at Nampally convicted the accused to undergo rigorous imprisonment (RI) for 2 years concurrently and Rs. 15,000/- fine for the offences punishable under Sections 67, 67-B (c) (d) of The Information Technology Act 2000 (Cyber Law) and Section 509 of The Indian Penal Code.The case was investigated and trial was monitored by B. Ravi Kumar Reddy, Inspector of Police, Cyber Crimes, CID.

Other Facts of the Case :

1. Certificate under Section 65B was not used in the said case, instead of this prosecution an court relied on confession of accused under section 313 of CRPC. The confession was that the facebook account belongs to himself.

Prosecution relied on forensics report of Victims computer where enticing and abusing text was found in the facebook conversation.

2. There was sexually explicit pictures or videos sent (transmitted), it was pure text messages.

3. Accused by himself went to High Court and got a order to expedite the matter, it was his mistake and why was he misguided ? still remains the Question.

4.This was a rare case where in 2010, evidence was asked from California office of Facebook and they had responded positively to Indian police.

5. This is 24th conviction in a cyber crime matter, in the state of Telangana in India.

My comments & Analysis of the Judgement :

I congratulate the team of Telangana police and Government Lawyers for the conviction, as getting more convictions in cyber crime matter is the need of the hour. I would also congratulate Mr. U.Ramamohan Superintendent of Police, Cyber Crimes in CID AP Hyderabad.  As a defence lawyer, i would say that if lower judiciary only has acted under pressure of the higher courts order, then appreciation of the evidence would not have been done satisfactorily and the accused can be left scot free if he goes in appeal. I also see this is not an isolated case from defence forces, where some sexually frustrated defence personnel try to find relationships online. They feel they are behind the secure wall of defence organisations. An awareness training in the defence induction with example of such cases is the need of the hour. Personnel from Navy may be separated on a high sea from civilians on land, but they should remember cyber space has no boundary and cyber crimes today are investigated by sophisticated police officers. So Janata should not go on their uniform or the old perception about them.
Advice for Common Man : Don't talk Dirty Online with Girls below age of 18 Years.

Analysis of The Judgement Delivered : (This Para added on 6th April)
While Analysing the judgment some startling revelations happened to me about the judge being naive or not updated.
1. The Hon. Court has erred in punishing the accused under a section 66A of The IT Act,2000 which was stuck down by the Hon. Supreme Court in Shreya Singhal v. Union Of India [AIR 2015 SC 1523]
2. The Hon. Court has not appreciated the fact that prosecution 
had failed to confiscate Hard Disk from the computer allegedly 
used by the accused in the cyber cafe and thus was not 
available for further digital forensics examination.
3. The Hon. Court in order to ascertain the location of the 
accused on the date of crime has not appreciated the evidence
of "Call Data Record" of the accused mobile phone number , 
which the prosecution has failed to produce 
4. The Hon. Court has failed to appreciate the fact the facebook 
thou have replied to prosecution, but have not revealed 
the ip address, which binds the computer to the accused 
or his location.
5. Certificate under Section 65(B) as required by The Indian 
Evidence Act was not furnished by the prosecution. 
The effect of the same on the evidence thus produced 
was not appreciated the Hon. Court.
6. In my personal view in the age of Information Technology
concluding that the accused was present on the crime location 
only based on statements of witness doesnt sound fair and 
still raises doubts,
7. Accused agreeing that the profile and email belongs to him 
doesn't bind to crime, it just binds him to the weapon of crime.
8. Hon. Court has failed to appreciate the fact that The screenshot of the girl's Facebook profile shows the birthday written there is 19 Aug 1990, which makes her Adult at the time of Crime, whoever wants to send her friend request or chat. She May have faked her Birthday. This gives benefit of doubt in the favour of the accused 
Laws and Sections used
Offences under Information Technology Act 2000.

 67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form. – Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.- Whoever,-

(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct or

(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or

(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or
(d) facilitates abusing children online or
(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:
Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-

(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or
(ii) which is kept or used for bonafide heritage or religious purposes
Explanation: For the purposes of this section, “children” means a person who has not completed the age of 18 years.

Section 509 of The IPC.  Word, gesture or act intended to insult the modesty of a woman

Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine

Section 313 of The Code Of Criminal Procedure, 1973

313. Power to examine the accused.

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-

(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub- section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

Old headless CAT Going TDSAT Coming, The IT Act, 2000 is amended

Old headless CAT Going TDSAT Coming, The IT Act, 2000 is amended

By Advocate Prashant Mali, Cyber Law Expert

The government’s in response to a February 2015 report of a parliamentary standing committee that noted the absence of uniformity in the conditions of service of tribunals.  Government planned a large-scale reshuffle of tribunals, the government sought to reduce the number of these tribunals and bring parity in the service conditions of their officials.

CAT (Cyber Appellate Tribunal) From 2011, has barely been functioning. It still pays out salaries to its employees but no judicial order has been passed nor has any case been heard for the last five years. A CAG audit had noted that after the retirement of the CAT’s last chairperson in June 2011, there has been no replacement appointed as of June 2016. However, members  and other staff continued to render services in the CAT since then and expenditure of Rs. 27.64 crore were incurred on its establishment for the period from 2011-12 to 2015-16 without carrying out its primary business of hearing and disposal of appeals. After a huge big GAP the matters now are transferred to National Lok Adalat on 8th April 2017 from the Cyber Appeallate Tribunal.

The IT Act, 2000 is getting amended by The Finance Bill 2017, following are the changes

A new clause (da) is added under Section 2, in sub-section(1) (da) “Appellate Tribunal” means the appellate tribunal referred to in sub-section(1) of section 48

2.  The definition of “Cyber Appellate Tribunal” clause(n) under Section 2, in sub-section(1) is omitted

In section 48 of The Information Technology Act,2000

(i)            For the marginal heading, the following marginal heading shall be substituted, namely:-

“Appellate Tribunal”;

(ii)          For sub-section (1), the following sub-section shall be substituted, namely:-

“(1) The Telecom Disputes Settlement and Appellate Tribunal established under section 14 of the Telecom Regulatory Authority of India Act, 1997 shall, on and from the commencement of Part XI of Chapter VI of the Finance Act, 2017, be the Appellate Tribunal for the purposes of this Act and the said Appellate Tribunal shall exercise the jurisdiction, powers and authority conferred on it by or under this Act.”

(iii)         In sub-section (2), for the words, brackets and figure “shall also specify, in the notification referred io in sub-section (1)”, the words “shall specify, by notification” shall be substituted;

(d)      Sections 49, 50, 21, 52, 51A, 52B, 52C, 53, 54 and 56 shall be omitted.

(e)      for section 82, the following section shall be substituted, namely:-

“82.    The controller, the Deputy Controller and the Assistant Controllers shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code”;

(f)        in section 84, for the words “the Chairperson, Members, adjudicating officers and the staff of the  Cyber Appellate Tribunal”, the words “and adjudicating officers” shall be substituted;

(g)      in section 87, in sub-section (2), clauses (r), (s) and (t) shall be omitted;

Four important changes in Finance Bill 2017 with regards to Tribunals are:

1.    The Competition Appellate Tribunal will now be merged with the National Company Law Appellate Tribunal.

2.    The Cyber Appellate Tribunal and the Airports Economic Regulatory Authority Appellate Tribunal will be merged with the Telecom Disputes Settlement and Appellate Tribunal.

3.    The Industrial Tribunal is to also perform the functions of the Employees’ Provident Funds Appellate Tribunal.

4.    The Copyright Board will be merged with the Intellectual Property Appellate Board.

My Comments & Suggestions for TDSAT:

I welcome the move as the dud “Cyber Appellate Tribunal” never worked and was a black spot on cyber related litigation's. I suggest changes would be

A.   Having a Cyber expert as a full time member in the tribunal or atleast as amicus curae.

B.   Having a fixed date for the bench to sit

C.   Having the bench of TDSAT sitting in cities like Mumbai, Bangalore, Hyderabad e.t.c

D.   TDSAT should use the same online platform which Cyber Appellate Tribunal was using for filing of online appeals with documents.

E.   TDSAT should do some extra work to be a vigilante on all the state Adjudication officers, which are as of date in deep lumbar state.

F.    TDSAT should lead the training and awareness initiative in the cyber area across the country.

G. There should be clarity of appeals which lie from the TDSAT, whether to a High Court or directly Supreme Court

Family Pornography & Child psychology

FAMILY PORNOGRAPHY DESTROYS KIDS

"MY MUM DRESSES UP BEFORE ME"!

  I counselled a young guy who was addicted to masturbation                                                                  

He told me he can't do without masturbation. 

One thing that struck me in his confession was when he said, 'my mum caused all this for me'.

Curiosity got hold of me & I asked him, how? 

He said; 

he started masturbation since when he was 4 years old'; 

my mum has always been dressing  up naked  before me, I am used to seeing her nakedness. 

I am not moved to have sex with her but I always long to see mature ladies naked just the way I always see my mum dressing up naked before me.

I still remember seeing her nakedness regularly till I was 8 years & my dad do shout on her, 'send this boy out before you dress', 

but my mum would always reply by saying, 'will my son sleep with me?

Stop planting evil thought in his heart'.

Anytime I see my mum's naked body, I long to see ladies' naked body. 

I then went into sex at age 10 and till now I am not free from sex & heavy pornography & masturbation...'

Dear parents, I hope you are not guilty of this? 

You are dressing up before your 2 years son/daughter & you say he/she doesn't know anything yet? 

Thats very cruel. 

Some couples will be having sex while their close to 2 years old child will be in their room with them & we feel, he can only see, he can't understand.

Sir/ma, that your child does not need to understand.

Seeing your nakedness or seeing you and your spouse making love is enough to plant abnormal sexual fantasies and urge in that child.

Remember, it is a jet world! 

How will you destroy your own children with your own carelessness?

Don't let your children see your nakedness. 

Don't make love in the presence of your child no matter the age.

The scene sticks to the memory& they may want to explore & experiment what they are seeing.

Stopping making free  home-made 'sex clips or video' for your children to be watching.

Mummy, sit properly. 

Dress properly too. 

Stop sitting as if you are in the labour room; parting your legs for your son to see your inner tight & pant. 

Be careful!

Daddy, don't wear ordinary boxer at home that you sit down & your 'thing' is dangling & your daughter is seeing it. 

There are things you should not wear beyond your bedroom, just for your spouse. 

Don't say because you want to enjoy your freedom in your house. Its not your house alone, its a family house/home.

You are putting  your children into sexual bondage through these acts. 

Mummy, wearing ordinary bra around the house in the presence of your sons is dangerous.

Yes, they won't lust after you but you might be messing up and increasing their curiosity to see the breasts of ladies out there.

Let's stop being 'pornographic materials' to our children. 

Raising sexually pure children, it begins at home' 

My Counsel

Thank you very much for the issues raised in family porn. It is still our responsibility to build virtue into our family. We need to learn from others. 

Still on building virtuous homes. Look at this:

.

HABITS THAT SHOW IMPROPER UPBRINGING IN CHILDREN

. 

Please, carefully look into the list below to see where you may want to make amends on yourself or the young ones you are caring for.

.

Children, if not properly groomed may never get to the top in life, even if the parents are at the top of their career.

Manners take you to where your education can't irrespective of your status, money or the "who you know" factor. This is not meant to hurt anyone or pinpoint on someone for their upbringing. Its a general message targeted to all the parents of today. 

.

1) Going to your child's school dressed indecently? Think again.

2) Speaking rashly to your child's teacher.

3) Cursing, using foul words or swearing in front of your children. 

4) Using makeup on children.

5) Dressing with tight clothes and indecently for children (they loose the sense of their princesshood and may not listen to u in future)

7) Your child hold the cup or glassware by the brim and you don't correct.

8) Your children don't greet and you just feel they will come around one day because they have a mood swing. ( You will be blamed for it)

9) Your children eat with their mouth opened and you feel they will grow up some day. 

10) Your children bring home something you did not buy for them and you say nothing. ( that is the beginning of stealing)

11) They talk back at you and you conclude it's okay since you are a 21st century mummy. ( You will hate yourself if they do that outside and they are disciplined )

12) They interrupt when you are speaking with another adult and you think they are bold and clever. (Its really bad manners)

13) They exercise authority over their nanny and domestic staff and you let them be. ( that is bad parenting)

14) They say things like "my driver is on his way..."

I am not an advocate that children should call your domestic staff aunty or brother, calling them by name when they are not young people is not poise either. The use of Miss, Mr or Mrs will look good on them.

15) Your children don't say- 'Thank you' when they have been helped or served something and you are cool with that. (Bad parenting)

16) When your children cannot stand children who are less privileged.

18) When they pick their nose with their hands.

19) When they don't wash their hands after visiting the washroom.

20) When your children take something from the fridge without taking permission. (Bad parenting)

21) When your children don't knock on closed doors.

22) When your children don't collect from your hands the stuff you brought in as you walk in through the door.

23) When your children request for a bribe to carry out their home chores or extra task. (That is disgraceful )

24) When your children act like their grand parents irritate them.

25) When your children have not learnt to get up from the chair for the elderly or visitors to sit.

26) When your child tells a lot of lies. (You will both cry in the future)

27) When your child asks "who is that?" at a knock on your door instead of "please, who is there."

28) When your child is always seated by your visitors when being served drinks etc.

29) When your children still point their fingers at other people.

30) When your children play and jump around when prayers are going on.(age 4 above).

.

Dont be a 21st Century  parent who cannot correct a child. Train your child in then way of the Lord so that when he grows up he will not depart frm it.   

.

IT IS BETTER TO LET YOUR CHILDREN  CRY AT AN EARLY AGE  WHEN YOU CORRECT THEM, IF NOT YOU WILL BOTH CRY AT NIGHT WHEN THEY BRING DISGRACE TO THE FAMILY WITH BAD AND TERRIBLE BEHAVIOURS!

.

Please circulate to all parents and grandparents that are on your contact list

Prashant Mali Authored Book Released by Hon. Chief Justice Dr. Manjula Chellur, Bombay High Court

PRASHANT MALI BOOK RELEASED BY HON CHIEF JUSTICE DR MANJULA CHELLUR

Prashant Mali Authored Third Edition of Book "Cyber Law & Cyber Crimes Simplified " Released by Hon'ble Chief Justice, Dr. (Mrs.) Manjula Chellur, Bombay High Court . this book is Fore worded by Hon. Justice Madan Lokur, Supreme Court of India. Book is now available in High Court and with Aarti Publications, Fort

Prashant mali addressing judges in cyber crime investigation training

Prashant Mali Then addressed around 400 judges and public prosecutors ahead in the training program held at Maharashtra Judicial Academy

USA Citizen arrested for sharing child pornography in Hyderabad, India faces punishment under dreaded Child Porn Law.

USA Citizen arrested for sharing child pornography in Hyderabad, India faces punishment under dreaded Child Porn Law.

US Citizen  Mr. James Kirk Jones, 42 Years old  has been arrested for downloading and uploading child pornography in Hyderabad on 17/01/2017, cyber crime police of Telangana confiscated the accused laptop and other devices, which had child pornographic content. Jones is an Hyderabad-based MNC Employee.

Interpol had tipped cyber police of telangana state about Jones and he had been under the cyber crime’s scanner then, this was after Interpol sent out information about his transfer of child porn content. Police traced Jones to his Madhapur residence in Cyberabad using his ip address. 29,288 items of child sexual abuse materials on the laptop, 490 GigaTribe profiles and 24 Twitter handles/profiles sharing child pornography as well as an iPhone and an external hard drive containing adult pornography was found in the raid.

Jones confessed to investigators that he had been watching child pornography since he was a child.

Section 67(B) of The IT Act,2000 is slapped on him, which is a Non-Bailable offence and attracts stringent up to 7 Years of Imprisonment with up to 1Million Rupees in Penalty.

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