S.
2, 3, 4 IPC + 75 IT Act + 177, 178, 179 CrPC
Law and Tech Unit 3 (Jurisdiction in Cyber
Crime)
‘Jurisdiction’, as applied to a particular claim or controversy, is the power
tohear and determine that controversy. The term imports authority to
expound orapply the laws, and excludes the idea of power to make the laws.
It refers to theright to adjudicate on a given point; the local extent within
which the court canand does exercise the right when ascertained. The law
relating to crimes wouldgenerally require that the courts within a state would
have jurisdiction to try andadjudicate upon all such offences committed by a
person within the territorialboundaries of such a court. However, the
exceptions have been created whereeven though, technically and strictly, the
offender might not have committed thecrime on the soil of the country, yet
the courts would exercise jurisdiction oversuch an offender.
To fully appreciate and comprehend this issue, we first need to understand
thejurisdiction issues arising in an offline environment in India in criminal
casesand the body of law applicable to ascertain jurisdiction. Then we
proceed to
apply the same rules in a cyberspace environment and assess the difficulties.
Theories of Jurisdiction in Criminal CasesWe have to bear in mind that a
State, while framing laws, exercises its legislativepower to (a) regulate; (b)
adjudicate upon; and, (c) enforce measures, againstcriminal actions. Law of
regulation of criminal actions encompasses declaringcertain acts or omissions
to be a crime and provides for punishment thereof.
Law of adjudication provides for establishment of courts and defining
theirjurisdiction. Enforcement measures ensure that the orders of the court
are carriedout and persons found guilty are appropriately punished.
There are six generally accepted bases of jurisdiction or theories under which
astate may claim to have jurisdiction to prescribe a rule of law over an activity.
Subjective territoriality is by far the most important of the six. The
substantialpart of criminal legislation across the globe is based on the theory
1.
that if anactivity takes place within the territory of the particular country, then
the saidcountry has the jurisdiction to regulate and punish for such activity.
For instance,section 2 of the Indian Penal Code provides for punishment of
offences committedwithin India.
Objective territoriality is invoked where the action takes place outside
theterritory of the forum state, but the primary effect of that activity is within
2. theforum state. Commonly known as the ‘effects’ doctrine is the situation ,
wherethe action takes place outside the territory of a country, but the primary
effect ofthat activity is within the said country, it assumed jurisdiction. For
instance, aperson from Pakistan shoots across the border and an Indian is
injured in theprocess. Though the action was initiated in Pakistan, the effect
was in India.Section 179 of the Code of Criminal Procedure endorses the
effects doctrine.
Nationality is the basis for jurisdiction where the forum state asserts the right
toprescribe a law for an action based on the nationality of the actor. For
3.
instance,section 4 of the Indian Penal Code stipulates that the provisions of
the Codewould also apply to any offence committed by any citizen of India in
any placewithout and beyond India.
Passive nationality is a theory of jurisdiction based on the nationality of
thevictim. Passive and “active” nationality are often invoked together to
4. establishjurisdiction because a state has more interest in prosecuting an
offense whenboth the offender and the victim are nationals of that state.
The Protective principle expresses the desire of a sovereign to punish
actionscommitted in other places solely because it feels threatened by those
5. actions.This principle is invoked where the “victim” would be the
government orsovereign itself. This principle is not preferred for the obvious
reason that it caneasily offend the sovereignty of another nation.
Lastly, nations also exercise a Universal jurisdiction with respect to
certainoffences. Sea piracy has been, for long, a part of this jurisdiction. Any
6. nationcould have captured and punished pirates. This form of jurisdiction has
beenexpanded lately to include slavery, genocide, and hijacking (air piracy).
Forinstance, Article 105 of the United Nations Convention on the Law of the
Seastipulates that on the high seas, or in any other place outside the
jurisdiction ofany State, every State may seize a pirate ship or aircraft, or a
ship or aircrafttaken by piracy and under the control of pirates, and arrest the
persons and seizethe property on board. It further provides that the courts of
the state which carriedout the seizure may decide upon the penalties to be
imposed, and may alsodetermine the action to be taken with regard to the
ships, aircraft or property,subject to the rights of third parties acting in good
faith.
With the advent of Internet and increase in cyber crime, especially, cross-
borderillegal activities, it is a matter of much concern to the courts whether
they havethe jurisdiction to put the offenders under trial and if found guilty,
eventuallypunish them.
General Jurisdiction in Computer CrimesThe law of jurisdiction with respect
to crimes relating to computers is the sameas that relating to traditional
1. Ordinary
crimes. The theory of subjective territoriality wouldapply. In India, Chapter XII
of the Code of Criminal Procedure, 1973 relates tojurisdiction of courts with
regard to criminal matters. The foremost and mostcommonly applied theory
of territoriality is embodied in section 177 of the Codein the following words:
177. Ordinary place of inquiry and trial.- Every offence shall ordinarily
beinquired into and tried by a Court within whose local jurisdiction it
wascommitted.
Thus, any computer crime committed, say, in Indore, would be tried by
thecriminal courts in Indore itself. However, computer crime, by its very
nature, iscapable of being committed at more than one place at the same
2. Multiple
time. For instance,a person sitting in Mumbai can hack into a computer at the
IISc at Bangalore
through a proxy server located at Kanpur. In such situations, the offence can
beinquired into and tried by a court having jurisdiction over any of such
areaswhere the crime has been committed.
Section 178 of the Code provides for thiskind of a situation:
178. Place of inquiry or trial.- a) When it is uncertain in which of several
localareas an offence was committed, or
b) Where an offence is committed partly in one local area and partly in
another,or
c) Where an offence is a continuing one, and continues to be committed
inmore local areas than one, or
d) Where it consists of several acts done in different local areas, it may
beinquired into or tried by a Court having jurisdiction over any of such
localareas.
Thus, based upon the subjective territoriality theory and the above provisions
ofour criminal procedural law, the requirement that our courts should
havejurisdiction to book persons found guilty of committing crimes relating
tocomputers within the territory of India is well taken care of. However,
issuesarise when someone is sitting across the border and initiates a digital
3.Cross Border
actionwhich has a direct adverse consequence within the territory of a state.
The ‘effects’
doctrine (objective territoriality theory) assumes significance when
offendersinvolved in cross-border crimes are required to be put on trial.
Application of ‘Effects’ Doctrine in Computer CrimesAlso known as the
‘consequence’ or ‘terminatory’ theory, the principle is thatwhere an act
is done abroad and the criminal effect is produced here, the crimeis taken to
be committed here. Both English and American courts have exercisedthis kind
of extra-territorial jurisdiction. For instance, in Simpson v. State,
[92Ga.41.17S.E.984(1893)],the victim was in a small boat near the Georgia side
ofthe wide Savannath River. Simpson, the defendant, stood on the opposite Georgia
side
SouthCarolina Bank and fired several shoots at the vessel. The bullets missed
South
Carolina
the boatbut struck the water nearby. The Supreme Court of Georgia held that
jurisdictionattached with these circumstances and that Simpson could
properly be prosecutedin Georgia even though the defendant was clearly in
another state at the time ofshooting. The location of the victim and the place
where the bullets landedestablished the basis for the decision. In R. v.
Oliphant, [(1905) 2K.B.67] inwhich a man in Paris by false returns caused
incorrect figures to be entered inthe account books of his firm in London, it
was held that the office of falseaccounting was committed by him in London.
If the principle of jurisdiction by ‘effects’ theory can be accepted in relation
tocrimes like cross-border killing or conspiracy or false representation, then,
withthe Internet giving a much wider and global scope of committing crimes
(theconsequences of which can be almost anywhere in the world), providing
for aglobal jurisdiction to tackle the crime can well be justified.
Under the Indian criminal law, section 179 of the Code of Criminal
Procedure,1973 embodies the effects doctrine, which reads as under:
“179. Offence triable, where act is done or consequence ensues: When an act
Act Done +
Consequence
isan offence by reason of anything which has been done and of a
consequencewhich has ensued, the offence may be inquired into or tried by a
Ensued
court withinwhose local jurisdiction such thing has been done or such
consequence hasensued.”
The Supreme Court in State of Madhya Pradesh v. Suresh Kaushal, [(2001) has
held that:“The above section contemplates two Courts having jurisdiction
and the trial ispermitted to take place in any one of those two Courts. One is
the Court withinwhose local jurisdiction the act has been done and the other
is the Court withinwhose local jurisdiction the consequence has ensued.”
For instance, it is well settled that where a sub-standard article is sold and
anoffence is committed, the place where the same is marketed will equally
havejurisdiction to try an offence against the manufacturers as well as the
distributors[State of Punjab v Nohar Chand, (1984); State of Rajasthan v
RajeshMedical Agencies 1987].
Section 179 contemplates cases where the act done and its consequence
happento be in two different jurisdictions and provides that in such cases, the
offenceconstituted by the act and the consequence may be inquired into or
Mobarak Ali Ahmed v State of Bombay. AIR 1957 SC 857]
tried in eitherof the two jurisdictions. In an Indian case of this nature, ‘A’ at
Karachi wasmaking representations to the complainant at Bombay, through
letters, telegramsand telephone talks, sometimes directly to ‘B’ and
sometimes through a commission agent. ‘B’ parted with money in good
faith of these representations,which were false. The Supreme Court held that
the representations were madeto ‘B’ at Bombay notwithstanding that
‘A’ was making the representations fromKarachi. Hence the entire offence
took place at Bombay and not merely oneingredient of it, (which was
consequence of the false representations), namely,the parting with the money
by ‘B’. The Apex Court held that the offence wouldbe triable both at the
place from where the false representations were made aswell as where the
parting of property took place [Mobarak Ali Ahmed v State ofBombay. AIR
1957 SC 857].
Section 179 giving statutory recognition to the ‘effects’ doctrine is
squarelyapplicable in computer crime cases. There would be many situations
where wewould find that though the initiator of an illegal action is
somewhere outside theterritory of India, the effect of his digital wrong-doing
has caused damage topersons within India. Such persons, by operation of
section 179, are liable to betried in India. The Indian courts would have
jurisdiction to try such cybercriminals.
The concept of ‘effects’ doctrine has been recognised not just by India but
byother countries as well. Its application in computer crimes has to be
adopted asof necessity due to the peculiarity of the Internet, which permits
initiation of thecrime from any part of the world with its consequences or
terminating effect inany other part of the world without any barriers.
Convention on Cyber Crime – Council of Europe
The Cyber Crime Convention of the Council of Europe prescribes for the
issueof jurisdiction in Article 22. It requires that every member-nation should
adoptlegislative measures to establish jurisdiction over any offence
established underthe Convention, when the offence is committed in its
territory. The nations havefurther option to establishing jurisdiction in case
the offence has been committedon board a ship flying the flag of that Party;
or on board an aircraft registeredunder the laws of that Party; or, by one of its
nationals, if the offence is punishableunder criminal law where it was
committed or if the offence is committed outsidethe territorial jurisdiction of
any state. It should be noted that the above Conventionapplies the theory of
subjective territoriality and Nationality theory but avoidsthe ‘effects’
doctrine.
APPLICABLE LAW IN COMPUTER CRIMESOnce a court has assumed
jurisdiction, the next question is: what body ofsubstantive law should be used
to resolve the problem? It is the substantivecriminal law of a country which
declares whether a particular activity is a crimeor not. Every country has its
own set of criminal laws. What is a crime in onecountry might be an innocent
act in another. Online activities create a vast scopefor confusion. It might even
act as a haven. An offender can skillfully carve outa niche for himself in the
cyber world where he/she is not answerable for his/hercriminal activities
because of his/her physical presence in a country whose cybercriminal laws
are not matured enough to pin him/her down.
In India, the Information Technology Act delves deep into the issue of
applicablelaw in computer crimes. It clarifies that any act which is committed
either withinor without India would be illegal if it is an offence under the Act.
To begin with, sub-section (2) of Section 1 of the Act states that:It shall
extend to the whole of India and, save as otherwise provided in this Act,it
applies also to any offence or contravention thereunder committed
outsideIndia by any person.
Further, section 75 of the Act reads as under:
75. Act to apply for offence or contravention committed outside India.
1) Subject to the provisions of sub-section (2), the provisions of this Act
shallapply also to any offence or contravention committed outside India by
anyperson irrespective of his nationality.
2) For the purposes of sub-section (1), this Act shall apply to an offence
orcontravention committed outside India by any person if the act or
conductconstituting the offence or contravention involved a computer ,
computersystem or computer network located in India.
The above two provisions make it clear that the offence, though committed
outsideIndia, is punishable in India. Thus, a Nepalese, sitting in Canada
initiates aDistributed Denial of Service involving computer networks in India
to obstructYahoo e-mail services, such a person, if put to trial in India, can be
foundpunishable under the IT Act. The above provisions have been drafted in
broadterms.
Certain provisions of Indian Penal Code also suggest applicability of
itsprovisions to illegal actions committed outside India, though subject to
certainconditions.
Section 2 of the Indian Penal Code deals with punishment of offence
committedwithin India. This poses no problem. If an illegal act concerning
computers iscommitted within India, it is the provisions of the Code which
would apply tosuch acts.
Section 3 of the Indian Penal Code reads as under:
Punishment of offences committed beyond but which by law may be tried
withinIndia. Any person liable, by any Indian law, to be tried for an offence,
committedbeyond India shall be dealt with according to the provisions of this
Code for anyact committed beyond India in the same manner as if such act
had been committedwithin India.
This section will apply in a situation where the accused, at the time of
committingthe offence that he/she is charged with, is amenable to Indian
courts. Section 3of the IPC has a broad ambit and it extends to any person
not necessarily acitizen of India but governed by Indian law for acts
committed beyond India.
Section 4 of the Indian Penal Code, on the other hand, applies the
Nationalitydoctrine. It deals with acts and omissions of Indian citizens abroad.
It furtherregulates the action of any person irrespective of his/her nationality,
if suchperson happens to be on a ship or aircraft registered in India. The
section readsas under:
Extension of Code to extra-territorial offences.- The provisions of this
Codeapply also to any offence committed by – (1) any citizen of India in any
placewithout and beyond India; (2) any person on any ship or aircraft
registered inIndia wherever it may be.
Explanation – In this section the word “offence” includes every act
committedoutside India, which if committed in India would be punishable
under thisCode.
Thus, the provisions of the Code would apply if an Indian citizen
anywhereoutside India commits any computer crime punishable under the
Indian PenalCode, like digital forgery or cyberstalking.
It is worth noting that the ‘applicability’ provisions of the Information
TechnologyAct and the Indian Penal Code are slightly on different notes. The
IT Act isbroader and covers all such persons whose action or omission might
be an offenceunder the Act. This is irrespective of their nationality or their
geographicalpresence. On the other hand, sections 2 and 3 of the Indian
Penal Code are not asvast in their applicability. Section 3 restricts itself to only
such persons who areliable to be tried within India by virtue of any Indian law.
Section 4 of the Codeapplies only to citizens of India and any person who
commits an offence whileon any ship or aircraft registered in India.
So far as computer crimes are concerned, the Indian law seems to be in
shape.
However, issues like extradition of computer criminals and international co-
operation also need to be addressed with equal vigour for quicker booking of
theguilty
