ADMISSIBILITY OF DIGITAL EVIDENCES

ADMISSIBILITY OF DIGITAL EVIDENCES

LEGAL VIEWS

INTRODUCTION

Digital evidences are the evidenced or can be said the digital data that can establish a commitment of the crime and can provide a link between the crime and its victim. In today’s world digital evidences are considered to be the strongest evidence that enable to find the criminal. These days there is one or the other link always connected to the Digital evidence that can be derived in any criminal or a civil case to be produced in the court of law.
This is because Indian evidence act has been amended and provisions are added primarily regarding the production of digital evidences in the court of law.


DEFINITION 

Digital Evidence or electronic evidence can be defined as any information stored or transmitted in any digital form can be used in the court.
“Electronic record” is defied under section 2(t) of Information Technology Act, 2000 –means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
Digital Evidence is not exhaustive and can includes anything from word documents to transaction logo, ftp logo of the server, GPS System tracks, Computer Memory, browser history and sort of window artefacts.


ADMISSIBILITY OF DIGITAL EVIDENCES

Computers are the Modern device of memory to store information. However computers are sometimes not reliable. They do occasionally malfunction, software system often have bugs. Unauthorised alteration of the information stored on a computer can be possible. Therefore a computer can be regarded as imperfect devices. Hence a document produced by a computer does not become the statement of a person initiating it if the purpose of doing so is merely to authorise the transaction rather to confirm or authenticate its content.

All the evidences must go through the test of admissibility and weight.
Admissibility is the set of the legal rules to be applied to use of evidence in the court of law & Weight is to measure the validity and importance of the evidence in the court.
Section 17 of the Indian Evidence Act defines admission and for the admission as a digital evidence the evidence must be in the ambit of the Section 65-A & 65-B of the Indian Evidence Act which provides that how electronic records may be proved an the condition as lain out it.


SECTIONS FOR DIGITAL EVIDENCES

Section 65-A and 65-B in Indian Evidence Act have been inserted by the Information Technology Act, 2000, which relates to the admissibility of the Electronic record as evidence.
Section 65-A provides that the contents of electronic records may be proved in accordance with the provision of the Section 65-B which provides for the mode of its proof.

Section65A. Special provisions as to evidence relating to electronic record
The contents of electronic records may be proved in accordance with the provisions of section 65B.

Section 65B - Admissibility of electronic records
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: -
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in me electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) 'throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in the section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a mailer to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.-For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived there from by calculation, comparison or any other process.]

In the case of Anvar P.V. v/s P.K. Basheer and others [ (2014) 10 SCC 473] the Supreme Court held that any documentary evidence in the form of an electronic record can be proved only in accordance with the procedure prescribed under Section 65B of the Indian Evidence Act.
In this case Supreme Court also overruled the case of State (NCT of Delhi) v/s Navjot Sandhu.

EXAMINATION OF WITNESS BY VIDEO CONFERENCING

A witness can be examined by the way of video conferencing, it is a essential part of the electronic method and such prayer cannot be ignored without a reason.

In Amitabh Bagchi V. Ena Baghchi [AIR 2005 Cal 11], the Supreme Court observed that if the court do not permit technology in the court proceedings then it would be lagging behind compared to other sectors. And introduced the concept of the Video - Conferencing.

The Supreme Court of India fixed the following method to be taken for the purpose of recording evidence through Video conferencing –

1. The witness will have to file an affidavit that the person shown as the witness is the same person as who is going to depose on the screen.
2. The person who wishes to examine the witness on the screen will also file an affidavit with regard to the identification.
3. After the identification process, Oath will be administered as per media.
4. The witness will be examined during the working hours of Indian Courts
5. The witness actions, as far as possible, be proceeded without any interruption without granting unnecessary adjournments.
6. Witness includes parties to the proceeding.
7. In case of non party witness, a set of plaint, written statement and all other related documents will be send to him for  his acquaintance.
8. Court must record any remark as in material regarding  the witness.
9. Mode of digital signature, if can be adopted.
10. The visual is to be recorded at both the ends.
11. The expense and arrangements are to be borne by the applicants who want this facility.
12. Court is empowered to put any further condition necessary for this purpose.



CONCLUSION

Digital evidences or the electronic records are the evidences stored information in the electronic form or transmitted in any digital form can be given as the evidence in the court of law. The electronic record cannot be fully relied upon as they can be changed or can be tampered as what they were stored originally.
Information Technology act 2000, introduce the Admissibility of the digital evidences in the court of law through a process which was given in the section65-B of the Indian Evidence Act.
All the digital evidences introduced in the court of law are accepted with the applicability of the section 65-B of the Indian Evidence Act by the court of law.
Indian Courts have also introduced the technology like other industries so that they do not lag behind and introduced digital ways of proceeding like Examination of witness through video conferencing etc.

LEGAL PROFESSION & ADVERTISEMENT

LEGAL PROFESSION & ADVERTISEMENT

India is a country having over 1.2 million lawyers.  However, as stated by Llyod Pearson, a London-based Legal Directories Consultant, there is insufficient information about the practice of law by advocates in India. The primary reason for this is the prohibition on legal advertising in India. The prohibition on advertisements by legal professionals has its origin in England, founded on the Victorian notions developed during the British rule. In India, similar to UK, the legal profession is considered to be an honourable one, which is why advertising by legal professionals is cynical and not widely accepted.

The prohibition of legal advertising is based on its adverse effects on professionalism as commercialisation of the legal professional was believed to undermine the lawyer’s sense of dignity and self-worth.  Other reasons for the prohibition include misleading nature of advertisements and the loss of quality in services. It is believed that advertising would lead to unhealthy competition whereby legal professionals would resort to practices such as fee undercutting and focus less on the quality of the services provided by them, in addition to incurring advertisement expenditure.

Justice Krishna Iyer has stated that, “the canon of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsy, for betterment of legal business. Law is not a trade briefs no merchandise and to the heaven of commercial competition or procurement should not vulgarise the legal profession” .

Accordingly, the initial Bar Council of India Rules had placed a complete ban on advertisements by lawyers. Subsequently in 2008, the ban was relatively relaxed and legal professionals were permitted to organise websites, which specified only their contact information, area of specialisation and qualifications. In India, various forms of indirect advertisements by legal professionals have been taking place for several years, by way of visiting cards, directory listings, seminars and felicitation ceremonies and issuing circular letters or election manifestos with name, address and profession printed on it, appealing to members of the Bar practising in lower Courts, who can recommend to clients for the High Court level. All of these activities are in contravention of the Bar Council of India Rules and would attract Rule 36.

Bar Council of India Rules

Under the Advocates Act, the Bar Council of India (BCI) has the power to make rules in order to discharge its functions under the Act, based on which, it has formulated the BCI Rules .
As per the Rule 36 of the BCI Rules, an advocate is prohibited from soliciting work or advertising, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. Even the sign board, name plate or stationery of an advocate should not indicate that he is or has been the President or Member of a Bar Council or of any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General.
However, in 2008, the Rule was amended, pursuant to a resolution passed by the BCI on 30th April, 2008  before a three member bench of the Apex Court. According to the amended Rule, advocates are allowed to furnish information on their websites,  in conformity with the Schedule, as per which the following information can be furnished on the websites:

1. Name
2. Address, telephone numbers, e-mail id’s
3. Enrolment number, date of enrolment, name of the State Bar Council where originally enrolled, name of the State Bar Council on whose roll they currently stand, name of the Bar Association of which the advocate is a member
4. Professional and academic qualifications
5. Areas of practice.

Legal professionals furnishing the above-mentioned information on their websites are also required to provide a declaration that the information provided by them is true.

Judicial Approach

The Indian judiciary has made significant contribution to uphold the dignity of the legal profession and ensure unimpeded performance of lawyers’ duties towards the Court. In the case of R.N. Sharma, Advocate v. State of Haryana,  it has been held that an advocate is an officer of the Court, and the legal profession is not a trade or a business; it is a noble profession and advocates have to strive to secure justice for their clients within legally permissible limits.

The Madras High Court, in S. K. Naicker v. Authorised Officer,  has held that a sign board or a name plate of an advocate should be of a moderate size and that writing articles for publication in newspaper under an advocate’s signature is a breach of professional etiquette as both the actions amount to unauthorised legal advertising.

In the case of J.N. Gupta v. D.C. Singhania & J.K. Gupta,  the respondent advocates had issued two advertisements in a newspaper; the first indicating a change of address on account of fire in the building where they were practicing, and the second time for shifting back to the building where their old office was located. Subsequently, they also published their name and address in the International Bar Directory under the headings “Singhania & Company”, “Firms Major Cases” and “Representative Clients”. The Court held that there was no violation of the rule against advertisement with respect to publication in the newspaper as the same was made on account of the fire, which required urgent notice of change in address to be given to existing clients. With regard to the publication in the International Bar Directory, it was held that publication in any manner, either in National or International Bar Directory would not constitute a violation of Rule 36 if it is done with the purpose of giving information of address or telephone numbers of advocates. However, in the instant case, it was found that the publication was made to give publicity to the fact that the law firm had dealt with important cases and had eminent clients; hence, was being used to advertise the firm itself.


In the case of K. Vishnu v. National Consumer Disputes Redressal Commission & Anr.,  it was settled that the legal profession is an administration with the end goal of the Consumer Protection Act, 1986. The Report of the High Level Committee on Competition Policy and Law, under the Chairmanship of S.V.S. Raghavan stated that “the legislative restrictions in terms of law and selfregulation have the combined effect of denying opportunities and growth of professional law firms, restricting their desire and ability to compete globally, preventing the country from obtaining advantage of India’s considerable expertise and precluding consumers of free and informed choice” . Furthermore, even the Supreme Court has held the legal profession to be covered under the definition of “industry” under the Industrial Disputes Act, 1947.  From these decisions, we can conclude that legal services are becoming subject to consumer protection and trade laws of India, moving towards the inevitable path of commercialisation.

Constitutional Validity of Rules 36, Bar Council of India Rules

Article 19(1)(a) of the Constitution of India guarantees the freedom of speech and expression, the only exceptions being in the interest of sovereignty, integrity and security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of Court, defamation or incitement of an offence .
In the case of Tata Yellow Pages,  the Supreme Court of India extended protection under Article 19(1)(a) to commercial speech i.e. advertising . Subsequently, it has been held that rendering professional legal services is a business proposition, and advertisement of the same as such comes within the definition of commercial speech.  The Supreme Court further strengthened the argument by observing that the right to freedom of speech cannot be taken away by placing restrictions on the business of citizens.  The researcher submits that on a critical analysis of Rule 36, it does not satisfy any of the conditions specified in Article 19(2). The ban on advertisements by lawyers is not constitutionally permissible, even on the ground of “public order” under Article 19(2) as the public order has been held to be synonymous with public peace, safety, tranquillity and the like.  Further, Article 19(1)(g) of the Constitution of India confers every citizen the right to choose his own employment, trade or calling, having the same reasonable restrictions as Article 19(1)(a),  which is often impregnated with an implied right for availing all the mechanisms and resources for effectively carrying on the trade or occupation, including advertisement, provided it is not contrary to public interest.  Rule 36, in essence is also violation of Article 19(1)(g) as a reasonable restriction on prohibiting advertisement would only exist where the advertisement is against public interest i.e. when it is immoral, obscene or presents something which goes against public morality.  Hence, the researcher is of the opinion that the ban on legal advertising under Rule 36 is excessive in nature and unconstitutional, as the same is not consistent with reasonable restrictions under Article 19(2).

Conclusion

Though the law prohibiting legal advertising in India is founded on the British Victorian system, our law shows a trend of resisting change as we have not developed the same in light of the changing nature of legal services. A critical analysis of the consequences of Rule 36 would lead to absolutely absurd conclusions as it does not permit business cards, seminars, conferences, ceremonies, directory listings, issuance of circulars, election manifestos, address and court of practice and even oral communication of the fact that a person is an advocate. Though there are certain drawbacks of permitting advertising by legal professionals, we need to consider the fact that the indirect methods of advertising are presently taking place at a large scale, due to which the profession is already subject to the disadvantages of legal advertising even when advertising has not been permitted. However, due to the restriction on direct advertising, we are unable to benefit from the positives of legal advertising.
In the age of information and commercialisation, the reasons based on the ground that law is a “noble” profession cannot be sustained because consumers of legal services are entitled to obtain the best value for their investment, similar to any other service. Every litigant ought to be provided with a platform from where he can identify the most suitable legal professional.

References

Articles

1. Shivam Gomber, Right to Advertise for Lawyers, 1 UDGAM VIGYATI Vol. (2016)
2. Ted Schneyer, “Professionalism” as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities, 89 FORDHAM URBAN LAW JOURNAL Vol. 40 Issue1 Article 15 (2013)
3. Maya Goldstein Bolocan, Professional Legal Ethics: A Comparative Perspective, CEELI Concept Paper Series (2002)

Legislations
1. Advocates Act, 1961
2. Constitution of India, 1950
3. Model Rules of Profession Conduct, 1983
4. Solicitors’ Publicity Code, 1990

Case Laws
1. R. N. Sharma, Advocate v. State of Haryana, 2003(3) RCR (Criminal) 166 (P&H)
2. CD Sekkizhar v. Secretary Bar Council, AIR 1967 Mad 35
3. Bar Council of Maharashtra v. M. V. Dabholkar, 1976 AIR 242
4. Tata Yellow Pages v. MTNL, 1995 AIR 2438
5. Dharam Vir Singh v. Vinod Majahan, AIR 1985 P&H 169
6. Sakpal Papers v. Union of India, AIR 1962 SC 305
7. Government Pleader v. S. A Pleader, AIR 1929 Bombay 335
8. In Re: (Thirteen) Advocates v. Unknown, AIR 1934 All 1067
9. S. K. Naicker v. Authorised Officer, (1967) 80 Mad. LW 153
10. C.V. Sekkizhar v. Secretary, Bar Council, Madras, AIR 1967 Mad 35
11. J.N. Gupta v. D.C. Singhania & J.K. Gupta, BCI TR. Case No. 38/1994
12. K. Vishnu v. National Consumer Disputes Redressal Commission & Anr., (2000) ALD (5) 367
13. Srinath v. Union of India, AIR 1996 Mad 427
14. Bangalore Water Supply & Sewerage Board v. A Rajappa, 1978 AIR 548
15. O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812
16. Dalbir Singh v. State of Punjab, AIR 1962 SC 1106

Reports
1. Report of High Level Committee on Competition Policy and Law- S.V.S. Raghavan Committee, 2000

HISTORY OF RAM JANM BHUMI

HISTORY OF RAM JANM BHUMI

INTRODUCTION

It is said that the India is the Land of Gods, and one of the God our India worship the most is Lord Ram. He was son of Dashrath the King of Avadh (Ayodhya), so it is held that Ayodhya is the birth place of Lord Ram.
But this land of the Ram Janam Bhumi was disputed since 1528 around 500 years ago.
From a long time there was a question of the ownership and title of the land so from what time shall we consider the ownership
• either from 1528 when Babri Masjid was constructed ?or
• from 1949 when Ram Idol was placed at that area or
• from 1992 after the demolition of Babri Masjid?

Here we are going to discuss about the history of the land of Ayodhya verdict and the Judgement given by the Supreme Court.

HISTORY OF THE LAND

In the year 1528, a Mughal Emporer ordered his commander to build a mosque which was built on hill known as Ramkot (Ram’s Fort) and the locals of that area also says that the mosque was built after the demolition of the pre existing Rama’s mandir over here.

In the year 1853 at the time of Britisher’s rule, the First ever recorded incidents of communal violence at the disputed land took place.

In the year 1859, the British officials decided to divide the area into two parts and erected a fence providing the inner court to be used by the Muslims to worship and the outer court to be used by the Hindus to worship.

In 1885, first ever suit was filed by Mahant Raghubir Das in the District Court of Faizabad, seeking permission to build a canopy on Ram Chabutra (the outer court) but his plea was rejected a year after by the court.

In 1949 December 23, Idol of Lord Ram was surfaces inside mosque by the Hindus. Muslims protested against the act and many civil suits were filled.
The government proclaimed that the premises was a disputed area and locks the area, banning the entry of either hindus or muslim in that area.
Many civil suits were filled to uplift the ban put by the government.

In 1950, the first title suit was filled by Gopal Singh Visharad asking for the right to worship the idols kept at “Asthan Janmabhoomi”. The court restrained the removal of idols and allowed the worship to be continued.

In 1959, Nirmohi Akhara files the suit, seeking possession of the site, doing away with the court-appointed receiver.
Nirmohi Akhara claims to be the custodian of the area of the birthplace of the Lord Ram.

In 1961, Uttar Pradesh Sunni Central Waqfs Board files a suit to claim possession of the Babri Masjid and the adjoining lands.

In 1986, on the plea of Hari Shanker Dubey, District Court of Faizabad allowed Hindus to worship in the area.
The Muslim opposing this decision of the District Court forms their own committee named “Babri Masjid Action Committee”.

In 1989, again a suit was filled by Vishwa Hindu Parishad in the name of “Ram Lalla Virajman” claiming the ownership and title of the area in their favour at the Lucknow bench of Allahabad High Court.
All the four suits, pending before District Court of Faizabad was transferred to the special bench of High Court.

In 1990, Minister Shri Lal Krishna Advani organised a Rath Yatra from Somnath in Gujrat to Ayodhya which resulted very dramatically and the situation got more tensed, promting nationwide communal riots and Shri L K Advani was arrested in Bihar.

In 1991, the whole disputed area was taken under the control by that time government in Uttar Pradesh by Chief Minister Kalyan Singh.

In 1992 December 6, demolition of  the Babri Masjid was done illegally by large group of activist of the Vishwa Hindu Parishad and allied organisation in realtion to the Ayodhya dispute and a temporary Ram Mandir was established over there.
After this incident many communal riots took place throughout the country.

On 16 December 1992, Liberha Committee was formed to investigate the people behind the demolition of Babri Masjid.
At this period the Union Government was of Congress Leader Narsimha Rao so he proposed the construction of Mandir, Masjid, Library, Museum and other such amenities at the disputed land of Ayodhya. This proposal was strongly opposed by Bhartiya Janta Party.

In 1996, Allahabad High Court clubbed all civil suits.

In 2002, Allahabad high court directs the Archaeological Survey of India to excavate the site to determine if a temple lay underneath.
And the High Court begins the hearing.

In 2003, Archaeological Survey says there is evidence of a temple beneath the mosque.

In September 2010, after considering all the evidences the Allahabad High Court delivered a historical judgement in which the site is to be split in three- The area of where mosque used to be there was allotted to Ram Lalla Virajman, the area of sita rasoi, bhandara and ram chabutra was given to Nirmohi Akhada and the third part was allotted to the Sunni Wakf Board.

After the judgement of Allahabad High Court Akhil Bharatiya Hindu Mahasabha and Sunni Waqf Board moved to the Supreme Court of India, challenging part of the Allahabad High Court verdict.

On 9th May 2011, Supreme Court of India stayed the High Court order splitting the disputed site in three parts and said that status quo will remain.

On February 2016, a suit was filed by Subramaniam Swamy for the construction of the Ram Mandir in the Supreme Court.

In March 2017, Justice JS Khehar former Chief Justice of India, asked the whole dispute to be settled outside the court through mediation.
Till December 2017, 32 appeals were filed in the Supreme Court against the decision of the Allahabad High Court.
Supreme Court ordered the hearing of the case from January 2019.

On January 2019, Supreme Court composed a bench of five judges named, Justice Ranjan Gogoi, Justice Sharad Arvind Bobde, Justice D Y Chandrachud, Justice Ashok Bhushan and Justice S Abdul Naseer.

Final report of the mediation was submitted to the Supreme Court and on the basis of the report submitted, the mediation has failed. The Supreme Court orders day to day hearing of the case from 6August 2019.

After the hearing by the Supreme Court of India the supreme court reserved its judgement and ask the parties to submit the moulding of relief i.e. whatever the parties have claimed and the court if does not give them that claim then what can be the alternate that can be claimed by them.
The almost 70 year long dispute comes to an end.

On 9th November 2019, the Supreme Court of India pronounced its verdict.
The Five judge bench of Supreme Court held that-
• The Government of India to create a trust to build the Ram Mandir temple and form a Board of Trustees within three months. The disputed land will be owned by the Government of India and subsequently transferred to the Trust after its formation.
• The entire disputed land of area of 2.77 acres to be allocated for the construction of a temple while an alternative piece of land of area of 5 acres be allocated to the Sunni Waqf Board for the construction of a mosque at a suitable place within Ayodhya.
• The 2010 Allahabad High Court decision was a unsustainable decision as this was a wrong relief because none of the parties asked for such relief, hence its judgemet was proved incorrect.
• That the Demolition of the Babri Masjid and the 1949 desecration of the Babri Masjid was in violation of law.
• That archaeological evidence from the Archaeological Survey of India shows that the Babri Masjid was constructed on a "structure", whose architecture was distinctly indigenous and non-Islamic.
• Muslim parties, including the Sunni Waqf Board, failed to establish exclusive possession of disputed land. It said that the Hindu parties furnished better evidence to prove that Hindus had worshipped continuously inside the mosque, believing it to be the birthplace of the Hindu deity Rama.
• That the suit filed by Nirmohi Akhara could not be upheld and it had no shebait rights.[37] However, the court ruled that Nirmohi Akhara should be given appropriate representation in the Board of Trustees.

CRYPTOCURRENCY AND CYBERCRIME

CRYPTOCURRENCY AND CYBERCRIME 

Abstract - Cryptocurrency is an internet-based medium of exchange which uses cryptographical functions to conduct financial transactions. Several cryptographic technologies are combined to make this possible via a global, peer-to-peer network.  The currency is in use today.  It can be traded for other currency, or used to buy goods and services. Bitcoin is an electronic currency designed to use a public protocol that implements it in a totally decentralized manner, so as not to need the  control  of  any  central  issuing organization that manages it. Though still in development, it has been proven to be a modern payment  system referred to have been used in  some procedures  commonly associated  to money  laundering  or  trafficking  of  illegal  substances  of  various kinds. Thus, in this article, we analyze those features which  transform such  a cryptocurrency in  a useful  tool to perform any kind of transactions far from the control of any kind of regulatory agency, as well as we pinpoint some of the fields in which their usage can derive in new illicit behaviours. 
Keywords - Crypto  currency,  cybercrime,  bitcoin,  computer crime,  virtual currencies

 INTRODUCTION

Cryptocurrency is an internet-based medium of exchange which uses cryptographical functions to conduct financial transactions.  Crypto currencies use secret code to verify and secure transaction, and that is where they get their name from.

Definition - Cryptocurrency by whatsoever name called, means any information or code or number or token not being a part of any Digital Official Currency, generated through cryptographic means or otherwise, providing a digital representation of value which is exchanged with or without consideration, with the promise or representation of having inhert value in any business activity which may involve risk of loss or an expectation of profit or income, or function as a store of value or a unit of account and includes its use in any financial transaction or investment, but not limited to, invested schemes.

In simple words we can say that, “Tradable digital form of money or asset is called Cryptocurrency”. It exists online only and is purely digital, there is no option to take out a cryptocurrency in paper or coin form.

Crypto currency is produced by the entire crypto currency system collectively, at a rate which is defined when the system is created and publicly known. In centralized banking and economic systems such as the Federal Reserve System, corporate boards or governments control the supply of currency by printing units of fiat money or demanding additions to digital banking ledgers. However, companies or governments cannot produce units of cryptocurrency and as such, have not so far provided backing for other firms, banks or corporate entities which hold asset value measured in a decentralized cryptocurrency.
 Bitcoin
Bitcoin was the first ever cryptocurrency that was developed by an unknown developed or group of developer named Satoshi Nakamoto in year 2008. The first use of Bitcoin as a currency is thought to be a transaction in  May 2010,  where one  user  ordered pizza delivery for another  in  exchange  for  10,000  bitcoins.  Since  then, an increasing number of merchants and services have adopted  Bitcoin and the price has generally risen, reaching a peak of approximately Rs.665224/- per Bitcoin  in 2020.
The price of the cryptocurrency is based on the demand and supply of the cryptocurrency. The price is completely decided by the market forces.
Bitcoin is an electronic currency designed to use a public protocol that implements it in a totally decentralized manner, so as not to need the  control  of  any  central  issuing organization that manages it.
Bitcoin’s history has also been coloured by its association with crime.

 CRYPTOCURRENCY HELPING IN THE GROWTH OF CYBER CRIME
Cryptocurrency is giving a major impact on cyber crime. The private and anonymous nature of transactions has opened a new avenue for these cybercriminals to disappear with your money, leaving no trace.
Cryptocurrencies are high on privacy and anonymity. Even if you can view the wallet to which the money has gone, you will never be able to figure out who it belongs to. These cryptocurrencies can then be transferred via cryptocurrency exchanges and practically be made to ‘disappear’ into a network.
Cryptocurrencies maintains an  association with  cybercrime  due  to internal  security issues  and  its  popularity with  the  black market. The near anonymity provided by the service, its dubious legal status and transnational existence make it an obvious, attractive opportunity for money launderers and criminals alike.

Here are some of the crime that have been increased and easily committed due to the help of the cryptocurrency  –
1. Ransomeware 
Ransomeware are basically the malware (or viruses) which encrypt all the files in your computer. A key is needed to decrypt the files which are provided only after a certain amount of ‘ransom’ is paid to the attacker. This ‘ransom’ is in the form of cryptocurrencies. With cryptocurrency payments, these attackers get impossible to track down and can possibly attack anyone in the world with ease.

2. Cryptojacking
Cryptojacking is a new kind of a cyber-crime which has been picking pace over the past decade. This attack basically involves the use of a javascript on websites. Basically, when a visitor opens the website, their computer automatically starts to mine for cryptocurrencies using the processing power of their CPU without their knowledge.

3. Ponzi Schemes
With cryptocurrencies proving to be an easy avenue for many investors to make quick money and get hefty returns on their investments, Ponzi schemes are on the rise. A number of ‘get rich quick’ sort of schemes have been making their way into the markets. Ponzi schemes and pyramid schemes such as those which offer guaranteed returns on investments are created by cyber-conmen to trick people and part them from their money.

4. Exchange Hacks
Cryptocurrency exchanges too, have become a victim of attacks from cyber criminals. Billions of dollars worth of cryptocurrencies have been stolen by attackers by hacking cryptocurrency exchanges.

5. Trade of Drugs and Weapons
The dark-web is a part of the internet which has gained a mythical status over the years. Almost every trading platform on the dark-web accepts cryptocurrency payments. These websites are involved in everything from drug and weapon trade to even the sale of endangered animals and human organs. Cryptocurrencies have become the favourite means of payment on the dark-web because it allows the traders as well as the buyers to remain highly anonymous. Many governments have expressed their concern that cryptocurrencies are funding the drug trade or sponsoring terror activities.

And many others crimes are being associated with this digital currency i.e. cryptocurrency with have became a very easy way for the criminals for the illegal deals to be transacted without any of the traces left behind and any proof of transaction through which it can be reveal the identity of any person involved in the transactions.


 REGULATION FOR CRYPTOCURRENCY IN INDIA

Cryptocurrency is the digital form of money or assets used in for trading purposes. It is a internet-based medium of exchange which uses cryptographical functions to conduct financial transactions. It does not have a record of transaction and its transaction cannot be traced by any person due to the feature of its privacy and anonymity.

Currently there is no law in India which governs the cryptocurrency in the market. Investment or trading in cryptocurrency is unregulated in India.
The Reserve Bank of India had come up with a circular  in the year 2013 that it has not given any person or body any license of authorization to trade in cryptocurrencies.

The that time Hon’ble Finance Minister Mr. Arun Jaitley has made it clear on the floor of the Parliament that Bitcoin or any other cryptocurrency shall not be regarded as legal tender in India.

A draft of Banning of cryptocurrency and Regulation of Official Digital currency Bill, 2019 is pending in the Parliament for the regulation to be made regarding the Banning of the cryptocurrency in India and for the regulation of the other official digital currency in India. This will provide the regulation for the cryptocurrency in India and will regard the cryptocurrency as illegal to be tendered in India.

Currently, in the present scenario, where cryptocurrency are not a legal tender, and where trading and investment can be done in it, it can be treated as commodity, the price of which is decided by demand and supply.


 CONCLUSION
Cryptocurrency is an internet-based medium of exchange which uses cryptographical functions to conduct financial transactions.  It is the digital form of money or assets used in for trading purposes. It is a internet-based medium of exchange which uses cryptographical functions to conduct financial transactions. It does not have a record of transaction and its transaction cannot be traced by any person due to the feature of its privacy and anonymity. Due to this feature Cryptocurrency maintains an  association with  cybercrime  due  to internal  security issues  and  its  popularity with  the  black market. The near anonymity provided by the service, its dubious legal status and transnational existence make it an obvious, attractive opportunity for money launderers and criminals alike.

The feature of cryptocurrency of privacy and anonymity makes it a currency which is associated with the cybercrime in many ways.
As, currently there is no law in India governing the cryptocurrency in the market. Investment and trading in cryptocurrency is unregulated in India.
Cryptocurrency should be banned and regulated so as to regulate the cybercrime and other related crime like money laundering in India.



 REFERENCES

1. “How cryptocurrency empowering cybercriminals”  https://www.forbes.com/sites/vishalmarria/2019/02/04/how-cryptocurrencies-are-empowering-cybercriminals/#39c7a52737c5
2. “Cybercrime linked to cryptocurrency”  https://datafloq.com/read/six-cyber-crimes-linked-cryptocurrencies/4878
3. Manorma Yearbook  2020 “what is cryptocurrency”
4. “Reserve bank notification” https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11243&Mode=0
5. Bitcoin Price https://www.coindesk.com/price/bitcoin

HOW ARREST CAN BE MADE AND THE RIGHTS OF THE ARRESTED PERSON

HOW ARREST CAN BE MADE AND  THE RIGHTS OF THE ARRESTED PERSON

1) INTRODUCTION

The code has not defines the term “Arrest”. The dictionary meaning of Arrest is apprehension of a person by legal authority resulting in deprivation of his liberty.
Arrest may be necessary not only for the purpose of securing the attendance of  the accused at the time of trial, but it may become necessary as a preventive or precautionary measure in respect of a person intending to commit a congnizable offence, or a habitual offender or an ex-convict or a person found under suspicious circumstances.

The apex court in the State of Haryana V. Dinesh Kumar (2008) 3 SCC 222, observed that the expression arrest has neither being defined in CrPC or IPC or any other enactment dealing with the criminal offences. The only indication as to what constitute arrest may be perhaps be found in Section 46 of Cr.P.C. which describes the mode of arrest.
The word “Arrest” when used in its ordinary sense, means the apprehension or restraint or the depriviation of one’s personal liberty.
An arrest consist of takig into custody of another person under the authority empowered by law for the purpose of holding or detain him to answer a criminal charge and preventing the criminal offence.

In the case of, Directorate of Enforcement V. Deepak Mahajan AIR 1994 SC 1775, it may be noted that “Custody” and “Arrest” are not synonyms terms. Talking a person into judicial custody is always followed after the arrest of the person.


2) TYPES OF ARREST

1- Arrest with warrant
Arrest made in the pursuance of a warrant issued by magistrate

2- Arrest without warrant (Section 41)
Arrest made without any warrant but made in accordance with some legal provision permitting such an arrest.

3) ARREST BY POLICE, MAGISTRATE & PRIVATE PERSONS  (Section 41 to 44)

(a) ARREST BY POLICE

 Section 41. When police may arrest without warrant.—
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—
[(a) who commits, in the presence of a police officer, a cognizable offence; 
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:— 
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.]
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or 
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to
such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
[(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.]

In the case of Joginder Kumar V. State of Uttar Pradesh, CrLJ,1994, it was held that no arrest can be made merely because it is lawful to do so. There must be a justifiable reason to do arrest.

In the case of State V. Bhera, Cr LJ, 1997, it was held that the “reasonable suspicion” and “creditable information” must relate to definite averments which must be considered by the police officer himself before he arrest the persons.

 42. Arrest on refusal to give name and residence.—
(1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required: 
Provided that, 
if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.

A police officer to arrest a person for a non-congnizable offence, if he refuses to give his name and address or the police officer is to believe that the name and address provided are false.

(b) ARREST BY A PRIVATE PERSON

43. Arrest by private person and procedure on such arrest.—
(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.

Any person may arrest or cause to be arrestes by any person who in his presence commits a congnizable offence and the private person after arresting the person shall without delay to be taken to the nearest police station.
If the private person after arresting any person keeps the person in his own custody without any sufficient reason then he may guilty of offence under section 342 of Indian Penal Code.


(c) ARRST BY MAGISTRATE

44. Arrest by Magistrate.—
(1) When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.
(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

When any offence is committed in the presence of the Magistrate, he himself can arrest or order any person to arrest.
Magistrates have a wider pewer than private person. A magistrate can arrest on the ground of any offence and not only on cognizable offence.

4) HOW ARREST IS DONE 

Here it is described the mode in which arrest are to be made either with or without warrant.

46. Arrest how made.—
(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action:
[Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.]
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. 
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. 
(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

 The arrester shall actually touch or confine the body of a person to be arrested. Since arrest is a restraint on the liberty of the person, it is necessary for the person being arrested to either submit to custody or the arrester must touch and confine his body.
Mere oral declaration of arrest by the arrester without getting submission to custody or physical touch to confine the body will not amount to arrest.

In the case of Bharosa Ramdayal V. Emperor AIR 1941, it was held that if a person makes a statement to the police accusing himself of commiting an offence, he would be considered to have submitted to the custody of the police officer.

In the case of Birendra Kumar Rai V. Union of India, CrLJ 1992, it was held that arrest need not be by handcuffing the person, and it can be also completed by spoken word of the person submits his custody.

 If any person forcefully resisrt the endeavour to arrest him or attempts to evade the arrest, then such police officer may use all necessary forces to arrest him.
If he runs away the police officer shall take action to prevent his escape and in doing so.

 Also there is no right to cause death of the person who is not accused of an offence with death punishment or imprisonment for life while arresting such person
49. No unnecessary restraint.—The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

 Where a women is to be arrested it shall be made by a women police officer and the women can only be arrested after sunset and before sunrise except when there is a written report submitted to the magistrate by the women police officer for the arrest to be made.

In the case of State of Maharashtra V. Christian Community welfare Council Of India [ (2003) 8 SCC 546], it was held that in special circumstances the provision made uder section 46(3) of CrPC for the protection of the women can be ignored and they can be arrested at any time of the day or night.

5) RIGHTS OF AN ARRESTED PERSON

The Code of Criminal Procedure, 1973 gives wide power to the police for arresting a person. To ensure that this power is not used arbitrarily, several restraints have been put on it which indirectly, can be recognised as the right of the arrested person.

The rights of an arrested person are given here as follows :

I. Right to know the ground of his arrest  [Section 50(1)]

Every police officer or any other person arresting any person without warrant shall communicate him full particulars of the offence for which he is arrested.

Section 50. Person arrested to be informed of grounds of arrest and of right to bail.—
(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

II. Right to information regarding to be released on bail [Section 50(2)]

When any person is arrested without the warrant he shall be informed that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

Section 50. Person arrested to be informed of grounds of arrest and of right to bail. — 
(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

III. Right to be taken before Magistrate without delay [Secton 56]

Any person arrested with or without warrant must be bought to the magistrate without any unnesesary delay having jurisdiction of the case.

Section 56. Person arrested to be taken before Magistrate or officer in charge of police station.—A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

IV. Right of not being detained more than 24 hours without judicial scrutiny [Section 57]

No police officer shall retain any person in his custody for more than 24 hours without the special order of magistrate under section 167 of CrPC.

Section 57. Person arrested not to be detained more than twenty-four hours.—No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

V. Right to consult a legal practitioner [ Section 303]

Any person whom proceedings are initiated have a right to be defended by a pleader of his own choice.

Section 303. Right of person against whom proceedings are instituted to be defended.—Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.

VI. Right of an arrested indegent person to be provided free legal aid 
[Article 22(1)]

Article 21 of the Indian Constitution provides that free legal aid shall be provided to an indigent accused person.

Article 22(1) in The Constitution Of India 1949 (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

In Hussainara Khatoon case, S.C. declared Right to Free Legal Aid as the Fundamental Right. 2. Constitutional Amendment Act, 1976 provided for Article 39A: Free legal Aid.

VII. Right to examined by medical practitioner [ Section 54]

The accused who is arrested has a right to have him medically examined to enable him to defend and protect himself properly. The person who is arrested should be given the right to have his body examined by a medical officer when he is produced before magistrate with which he is charged was not committed by him or that he was subjected to physical injury.

Section54. Examination of arrested person by medical officer.—
(1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made:
Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner. 
(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted. 
(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.


In the case of D.K. Basu V. State Of West Bengal (AIR 1997 SC 610), it was held that while arresting, any person either with or without warrant, the police officer making the arrest should have his name and designation present on his batch.
And the police officer shall prepare the Memo of Arrest with the following particulars:
I. Name of person to be arrested
II. Name of the person arresting
III. Charges
IV. Place of the arrest
V. Counter sign by 3 witnesses
VI. Within 12 hours of arrest, police to inform of such arrest made and also where the person is put up in the custody of police.


6) CONCLUSION

Arrest is not defined in the code and the meaning of arrest is apprehension of a person by legal authority resulting in deprivation of his liberty.
Arrests are of two types with warrant and without warrant.
The procedure how an arrest can be made is provided in the code giving the police officer a wide power to arrest any person and on the other side to ensure the power is not arbitrary used by the police officer there are certain rights of the arrested person which are also provided in the code.
Here we have discussed about both the aspects i.e. how the arrest is made and the powers given to the police officer and the rights that are provided to the arrested person so that he is not wrongfully constraint.





BY-
Maneesh Adesh Srivastava