Naavi.org

Recently a judgements from Hyderabad under ITA 2000/8 has raised interesting debates in Cyber Law Circles which make a good case study for academic purpose.

Presently we are commenting on the basis of the following two news reports

Times of India Report : Navy Man gets 2 years imprisonment 

Indian Express Report : Sentence under Section 66A.

We shall try to get the copy of the judgement for further clarification.

One of the debates that has ensued post the judgement is that the conviction includes “Section 66A” which the Supreme Court quashed on 24th March ,2015 , in what is popularly called the Shreya Singhal Case.

Most specialists are shocked at how the Court can pass a sentence on a section which has been termed by the Supreme Court as “Anti Constitutional” and quashed.

Does it indicate that the lower Court was ignorant? Did the investigating officer mislead the Court? are some of the questions that are making rounds.

The facts of the case indicate that the incident happened in 2010. At that time the victim was a minor and Section 66A was still valid. The object of crime was an online Chat dated 27th February 2010 where the accused was supposed to have lured the girl to an online relationship. The conviction is said to be under Sections 67, 67-B, IPC 509 besides Section 66A.

The accused has now preferred to file an appeal and the final word on the judgement will be known later.

As regards the Court giving a judgement against the Supreme Court view, it appears that the Judge has gone with the view that the Shreya Singhal judgement did not have any “Retrospective” effect and the cause of action in the current case arose in 2010 when Section 66A was very much valid. In our opinion, this is a correct reading of the Shreya Singhal judgement and the Judge must be credited for his brave decision against the popular sentiment.

If it is argued that at the time of judgement Section 66A had been scrapped and hence this should have been taken into account by the judge, the case also arises that at this point of time, the victim was no longer a “Minor” and 67B  was not applicable, though Section 67 was still applicable.

Further the presentation of admissible evidence should have been done under Section 65B (IEA) certification though this loses significance if the accused admitted the offence.

But the judgement has really raised an important point that we need to look at an offence in the light of the date on which the cause of action arose and the laws present at that time unless there is a compelling law that brings retrospective or prospective effect to the provisions. October 17, 2000 was when Section 67 of ITA 2000 and Section 65B of IEA became effective and October 27, 2009 was the day when Section 67A, 67B, and 66A became effective and March 24  2015 was the day whn Section 66A was quashed. These dates have to be kept in mind by Police and Courts to apply the different provisions of law as contained in ITA 2000.

The second point of debate that has come up in the case is that the accused was a Navy personnel. The victim was the daughter of a Navy personnel and the crime was committed on board a Navy vessel. In this case the question of whether the jurisdiction for trial should have been with the Military Court is a point to discuss.  Probably the victim was not on board the Navy vessel and was in the Civil area. (Or was she residing in a Cantonment area?).

Had the Navy Court taken cognizance of the matter and started a trial, it would have been difficult for the Hyderabad Court to proceed with the trial as it would have become a fit case for “Double Jeopardy”. By not initiating action, the Navy has allowed the proceedings in the Hyderabad Court to continue.

I understand that Madras High Court in a case in 2009 had refused to transfer a criminal case to the Army Court. (Refer here). This was however a case of physical crime of murder in the civil society and stood on a different ground. In that case the person was on leave and the claim for transfer was based on Section 475 of Cr Pc which states as under:

Quote:

475. Delivery to commanding officers of persons liable to be tried by Court- martial.
(1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950 ), the Navy Act, 1957 (62 of 1957 ), and the Air Force Act, 1950 (45 of 1950 ), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court- martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court- martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by a Court- martial. Explanation.- In this section-
(a) ” unit” includes a regiment, corps, ship, detachment, group, battalion or company,
(b) ” Court- martial” includes any tribunal with the powers similar to those of a Court- martial constituted under the relevant law applicable to the Armed Forces of the Union.
(2) Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence.
(3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situate within the State be brought before a Court- martial for trial or to be examined touching any matter pending before the Court- martial.

Unquote:

According to this section, the Magistrate “Shall” transfer the case to the commanding officer, though the word “in Proper cases” is subject to interpretations. The Madras High Court used this interpretation to refuse transfer of the trial to the Military Court.

However, under the Uniform Code of Military Justice -UCMJ (Refer here)   if the offender is an active service member, the UCMJ applies. If the Crime violates both the State Civilian Law and Military law, it may be tried by either or both. But the two Courts need to coordinate and avoid “Double Jeopardy”.

In the Telengana Case, this point was completely missed though this being a “Cyber Crime”, the “Crime is deemed to have been committed at a place from which the offending message was sent, namely the Navy vessel”. Hence the place of crime was a military space and the offender was a military personnel. Even the principle of natural justice indicated that the trial should have proceeded in the military Court since the complainant was also a Navy person (victim being a minor).

Since in the case,

a) Jurisdiction of the Civil Court is itself questionable

b) Evidence was in admissible due to lack of Section 65B certification (assuming that the admission is not sufficient)

the judgement requires a review.

Naavi

(P.S: I am waiting for further information on this case as well as Supreme Court judgements on Section 475 of CrPc based on which supplementary discussions can be continued by experts)

Related Article:

USI of India:

This article says that defence of Double Jeopardy is not available. Needs to be explored further by experts.

This is in continuation of the previous article “Is a WhatsApp Notice valid in law?… A Case for Cyber Notice service“.

The copy of the order of Mr Khemka is now available and reproduced here. Some key observations in the order are discussed here.

First point of observation is that the order states that the mobile number of the respondent to whom the WhatsApp notice was ordered to be sent was provided by the petitioner. The Financial Commissioner did not have first hand knowledge of the mobile number. It was the advocate of the petitioner who stated that he had spoken to the respondent and informed him about the summons and he had refused to provide his address.

Based on this averment, the Financial Commissioner ordered that an “Image” of the summons be sent through WhatsApp by the respondent and the same shall be treated as proper mode of service. It was also ordered that the petitioner would  produce proof of electronic delivery through WhatsApp messenger by taking a print out and duly authenticate the print out by affixing his signature.

It appears that the Financial Commissioner ignored the fact that “Electronic Documents” need to be authenticated with digital signatures and print outs of electronic documents need to be authenticated with Section 65B certificate to be admissible as evidence.

The order  therefore appears to be not in conformity with the laws applicable to electronic documents under ITA 2000/8. The Financial Commissioner may assume certain powers to define the procedures for the proceedings in his Court. But whether it extends to ignoring provisions of ITA 2000/8 is a moot point.

The Financial Commissioner has  quoted a Supreme Court Order in the case M/s. SIL Import, USA v. M/s. Exim Aides Silk Exporters, Bangalore, (AIR 1999 SC 1609) to substantiate his stand that technology advancement has to be adopted by Courts. We fully agree that certain flexibility to adopt technology through creative interpretation of legacy law is acceptable and desirable but such interpretations should be used to fill gaps in the law and not to openly flout other laws.

The decision arrived by the Financial Commissioner here does not appear to have been based on proper appreciation of ITA 2000/8 and can create a bad precedent which may spread misunderstanding of the WhatsApp system and its validity under Indian law.

The Supreme Court case used as a support for this decision  referred to the validity of  a “Fax”  message as a valid notice regarding dishonour of a cheque just before the time available for notice was to expire. The Supreme Court allowed the use of Fax as a valid mode of transmission of a notice. The circumstances of this case was not directly applicable to the current case before the Financial Commissioner.

The technology of Facsimile transmission is not a transmission of an “Electronic Document” and is not covered under ITA 2000/8. Fax message is to be treated as a transmission of an analog message over telephonic network covered under the Telegraph Act and hence ITA 2000/8 may not be applicable to it. Also this Supreme Court decision was a “Pre-ITA 2000” decision and requires to be reviewed even if in today’s context, a Facsimile messages may be sent as a digital transmission.

Hence relying on this decision by Mr Khemka as the Financial Commissioner for a transmission of an electronic document which falls well within ITA 2000/8 is debatable.

In our opinion, WhatsApp messaging or SMS can be considered as an electronic document and would be valid as equivalent to a paper document. But it would be considered as an “Unsigned” paper document if it is not digitally signed with the use of a digital signature certificate issued by a licensed certifying authority. If it has to be admitted as evidence, collateral information has to be added with suitable meta data and definitely a Section 65B certified document.

In the subject case, WhatsApp message was being used as a substitute for a Court summons and additionally, it was not even sent from the Court’s phone number or e-mail. The Court delegated the sending of the notice to the petitioner who had a vested interest in the notice. The Court also does not seem to have made any effort to check if the averment made by the petitioner that the respondent is indeed a owner of the said mobile number and he was using the WhatsApp account (which has its own distinct code) to which the message was ordered to be sent. Hence it is difficult to presume that the summons can be considered as not having been properly issued by the Court..

The order can therefore be considered as a decision that can be challenged and overturned.

Naavi

A Financial Commissioner (FC) Court in Haryana, considered as a quasi judicial body headed by the IAS officer Ashok Khemka has created what can be considered as a “Double Edged Precedent” by sending a “Summons” through WhtsAPP. (I suppose thsi Ashok Khemka is the same person who made news by his fight against Mr Robert Vadra).

As per details available here the order was passed since the petitioner in a partition case did not have the address of the respondent since he had shifted out to Kathmandu but as per the records of the Commission, the person had spoken over phone but not revealed his address.

Mr Khemka seems to have observed that “An E Mail address or a mobile phone number is also the address of a person in the present times” and ordered that the summons may be sent by a WhatsApp message and a “Printout” of the delivery report on WhatsApp shall be considered as a proof of delivery.

At first glance this is a progressive thought and Mr Khemka should be congratulated in thinking creatively.

But it must be observed that the Court  did not make an attempt to get the registered billing address of the SIM card from the mobile service provider which would have solved its immediate problem and also provided validity to the ownership of the device as belonging to the respondent.

Naavi has been pioneering the principle that “Cyber Notice” is more relevant than other forms of notice  and even set up the service under “Cyber-notice.com” to provide legally valid notices in Cyber Space.

Mr Khemka’s Order is welcome as it shows the preparedness of the judicial authorities to think positively about the use of technology for legal notices. However, it is necessary that the notices are served in a manner that it cannot be legally questioned unless the notice is only a matter of special privilege granted to the litigant and the Court would be prepared to hear the case ex-parte if he does not show up.

A notice otherwise has to meet the legal requirements of the land and a mere serving of the notice on the WhatsApp and taking the colour of the right tick on the message as a “Delivery Receipt” is fraught with dangerous undesirable consequences.

While on the one hand, some Courts are challenging “Talaq” over Whats App and some are questioning the legal validity of WhatsApp itself, for one other Court to give legitimacy to WhatsApp notice is a huge contradiction.

Under the principles established by Naavi at Cyber-Notice.com or ceac.in, electronic notices are served but with a trusted third party taking up the responsibility for creating documentary records which add weightage to the evidence created for delivery with a Section 65 B Certification.

In the Khemka’s order, there is an assumption that a person spoke from a mobile number who was by voice identified as so and so and that phone number was considered as his address. Then the notice itself was sent to an intermediary called WhatsApp which redirected the message to an App supposedly installed in the same mobile number and relied on the colour coding of the delivery information that is displayed on the mobile.

What if the voice recognition of the person is not made? What if the WhatsApp application is actually installed on a device other than what is indicated or accessed only from a web application?, What if the delivery system does not function reliably? are questions that needs to be answered if the notice is to be considered as acceptable.

If CEAC.IN or Cyber-Notice.com had handled this notice delivery, it would have created supplementary records and provided a Section 65B certification for the process. With the evidence so created, the delivery would have been considered much more acceptable in law than it will be by the Court registrar sending a WhatsApp message to a number believed to be controlled by the respondent.

Naavi

It is reported that former Supreme Court Judge, honourable Justice Shiva Kirti Singh will be the next chair person for the Telecom Disputes Settlement & Appellate Tribunal (TDSAT).

The appointment is for a period of 3 years and he takes over the position which was vacant since last June.

TDSAT has become relevant for Cyber Law and Cyber Crime watchers since it is now also the “Appelalte Tribunal” under Information Technology Act 2000/8 and will be hearing all the appeals against the orders of the Adjudicating Officers.

The report in Economic Times reporting the appointment highlights the high profile disputes before the TDSAT between Jio and Airtel etc. Obviously, the attention of TDSAT will be on such high profile and high stake complaints. Against such complaints, the appeals that are being transferred from CyAT to TDSAT will be too insignificant for  TDSAT to even glance at. There is every likelyhood of Cyber Crime victims getting a lower priority in resolution of their disputes.  It is precisely for this reason that Naavi.org has been uncomfortable with the designation of TDSAT as the Appellate Tribunal under ITA 2000/8.

We have also highlighted that the Cyber Appellate Tribunal (CyAT, now called Appellate Tribunal or AT under ITA 2008) was headed by a Chair person at the level of High Court and below and it made sense that the appeal from CyAT went to a High Court. Now TDSAT is headed by a Chair person at the level of the Supreme Court and it makes it difficult how the appeals can be heard by the High Court which consists of Judges who are perhaps junior in stature.

The Judiciary is very conscious of their hierarchy and protocols and hence the move of the Finance Minister in merging CyAT with TDSAT is considered as leading to many practical issues which ultimately affects the Cyber Crime Victims adversely.

This is all the more reason for the Cyber Crime victims to seriously look at the proposition of Cyber Disputes Mediation and Arbitration (CDMAC) put forth by Naavi. (Refer www.cdmac.in)

Naavi

For those who know how the Judicial system functions, it is needless to say that it is always a pain to pursue justice through normal Courts. We are tired of the saying “God sees the truth but waits”. Many would say that I can tolerate injustice but not end less delay.

Further, Courts operate under the constraints of what the lawyers propose to them and not entirely on the basis of truth. More often we see Courts saying, based on the evidences before me, I come to this judgement. There are only a few honest and bold judges left in the system who can try to see the truth behind the powerful arguments put forth by the “Senior Advocates”. We know that these “Senior Advocates” collect crores of rupees as their fees based on their power to lie and also how much they can corrupt the system which we believe to be honest.

All litigants therefore should look to go the Courts only as a “Last Resort”.

In the case of business related disputes, normally both parties are normally reasonable and the dispute would be only because of a difference in interpretation of some terms. Hence both parties are not interested in wasting their time in Courts and hurting their further businesses.

Alternate Dispute Resolution therefore comes in as a relief to most. Only those persons who want to use Courts as an instrument of prolonging injustice prefer to litigate.

Hence there is no second thought that if an alternative dispute resolution process is available every litigant would like to avail of the same.

It was with this belief that Section 89 of Civil Procedure Code (Refer this article for details) provided that in any Civil Proceedings the Court  tries to persuade the litigants to try the ADR before the Case proceeds in the Court.  Such process could be through the process of a Court appointed mediator. However despite more than 10 years since the amendment came in force on 1st July 2002, not many litigants are using the facility.

The section states as follows:

(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for

(a) arbitration;

(b) conciliation

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

(2) Where a dispute had been referred-

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.

(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.

Unfortunately the established legal community  may not be keen on the success of the ADR process  since any curtailment of litigation in Courts directly affects their revenue potential. The new generation of advocates however may not be averse to striking settlements and acting as mediators since this is the only method by which they can break into the system otherwise firmly occupied by the senior advocates.

However, until recently the Arbitration system had its own weaknesses because of which it only prolonged the litigation rather than eliminating it. Also in most cases, arbitration was always thought of only as a part of the pre-dispute agreement and parties never trusted to enter into an arbitration when it was not mandated in the agreement.

Now with the new amended Arbitration and Conciliation Act 2015 (ACA 2015) being in force, the ADR process has got a big boost in terms of ensuring that there is no delay in the arbitration process nor there is an automatic stay of the arbitration award when an appeal is filed.  Additionally, the new Act tries to promote digital communications and opened the means for ODR (Online Dispute Resolution).

With the advent of the new ACA 2015, all judicial precedents of the past have lost meaning and we need to look at every thing afresh. We are in the After Amendment Era where the before Amendment Era judicial pronouncements are all amenable to be questioned and over turned.

It is therefore essential for all Civil disputes to make use of the benefits of ADR and this move has to be initiated by the parties at the time of contracting. Those contracts in which an Arbitration clause was not a part should be reviewed now or even after a dispute has formally arisen to introduce an ADR process.

An ADR process need not always be the Arbitration. It may be a “Mediation” or “Conciliation” that is an attempt to achieve a negotiated settlement with the assistance of a professional mediator. Arbitration however is more binding.

Legally, there is no difference between Mediation and Conciliation though technically, a Conciliation may be a process in which the Mediator may try to achieve a settlement with the force of the respect that the disputants place on  his stature and knowledge.  Ultimately however, a mediation/conciliation ends up with a settlement agreement between the parties out of their own free will.

Arbitration on the other hand may be a forced award which one party may not like and therefore wish to challenge.

As regards Criminal proceedings, there are provisions of “Compounding” (Sec 320 of CrPc) where there could be a negotiation between the accused and the victim which may result in the proceedings being dropped. (See the details here).

(P.S: CDMAC will address compounding under ITA 2000/8 which will be discussed separately in a subsequent article)

In summary we need to recognize that the time for ADR has arrived and without simply complaining about the delays in the Courts, inefficiency or corruption of Judges etc, we need to explore settlement of all our disputes through Negotiation, Mediation/conciliation or Arbitration.

Courts are the last resort for seeking justice and the more we avoid them better it is.

Naavi