Plight of Cyber Crime Victims in Karnataka

The plight of Cyber Crime victims of Karnataka has been brought out in an article which appeared in New Indian Express Today.

See the article here

The article provides the background of the dispute which has also been explained in detail in this website earlier.

The irony of the situation is that while the Adjudicator of Karnataka tried to correct a mistake committed earlier,(order of 27th December 2011) by a new order dated 26th April 2013, the Karnataka High Court , (Principal Bench Court Hall No 9: WP 21049/2013) has come in the way of correction by quashing the new order and reverting the validity of the earlier order. Under the circumstances,  the  adjudication order of 27th December 2011 now has the support of the Karnataka High Court and has gained a larger jurisdictional precedence across the Country.

In effect it is the current Karnataka High Court order of 27th May 2013, which has now tied the hands of the Adjudicator from taking up any complaint either by a Company or against a Company and is primarily responsible for the Cyber Crime victims of Karnataka losing the legal remedies provided by Information Technology Act 2000/8.

Though the reason stated in the impugned order of the High Court is one of non compliance of proper procedure by the adjudicator for revoking the earlier order, the facts indicate that the the Court had come to its decision in a hurry and disposed of the case on a “Short Point” without taking into consideration the impact the decision would have on the Cyber Victims in general in the State other than the respondent involved in the specific case nor the actual dispute that was represented by the petition. Further the order of the High Court appears to contain  some incorrect factual information indicating that the Court could have been mislead by lack of proper information.

It must be noted that the Court in its order did not stop at quashing the order of the Adjudicator dated 26th April 2013, but went further as to suggest one of the secondary respondents to the petition to approach Cyber Appellate Tribunal for redressal of its grievance though this did not appear to have been prayed for even by the petitioner.

One intriguing part of the order was that while the High Court expressed the opinion that the victim of Cyber Crime involved in the underlying dispute should approach Cyber Appellate Tribunal for redressal of his grievance if any against the order of the adjudicator dated 27th December 2011, the petitioner was allowed to move the High Court and not ordered to approach the Cyber Appellate Tribunal for redressal of his grievance against the adjudicating order of 26th April 2013.

This meant that there was one course of action suggested for a Cyber Crime victim and another for a business intermediary who was being accused of abetting the crime by negligence or otherwise. It appeared as if the Cyber Crime victim in Karnataka is a second class citizen and does not deserve protection from the State High Court while the business intermediary is a privileged entity which can be provided protection.

The decision of the High Court and the plight of the Cyber Crime victims should be seen in the background that the so called Cyber Appellate Tribunal has not been functional since June 2011, about six months earlier to the disputed adjudication order of 27th December 2011. Even when the order was issued and followed up with two other similar orders in January 2012, the Adjudicator knew that the victim cannot get the order reversed through the intervention of the normal appeal process. Even the Karnataka High Court when it gave its order on 27th May 2013 was aware that the Cyber Appellate Tribunal was dysfunctional. Hence its suggestion that the victim should have approached the Tribunal was like condemning the victim along with the entire community of Cyber crime victims in Karnataka.

The decision of the High Court has defined a judicial precedence that affects all Cyber Crime Victims in Karnataka including others who were affected by defective Adjudication orders similar to the order of 27th December 2011. It also provides immunity for Cyber Criminals from the operation of Section 66 of ITA 2000/8 for all hacking and denial of service and other offences committed against a Company.

The Citizens of Karnataka await a favourable decision of the other bench which is hearing the PIL on the non appointment of the Chair person of the Cyber Appellate Tribunal for the opening up of the channel for grievance redressal for Cyber crime victims. However this case  is pending before the  Court for last 6 months and could drag on for more time. Even if the Court directs the Central Government to appoint a Chair person expeditiously, it could take a long. long time for the appointment to take effect and for the Cyber Appellate Tribunal to hear the appeal and dispose it off.

The more appropriate remedy for the citizens of Karnataka is for the judge who delivered the order of 27th May 2013 to suo-moto review his own order and let the Adjudicator continue his statutory duty cast upon him under ITA 2000/8.

In the meantime the current status of the applicability of Section 43 of ITA 2008 (also linked to Section 66) may come up for discussion in other Courts where the view of the Karnataka High Court would be quoted by Criminals as a precedence to argue that ITA 2008 cannot be invoked against them. This would expose the reputation of Karnataka High Court to a debate in other Courts.

Citizens of Karnataka donot want other High Courts in the country and the Supreme Court to take note of the adverse effect of the order of Karnataka High Court of 27th May 2013 and pass their own comments which could damage the reputation of the Karnataka High Court and hence an immediate suo-moto review appears to be the best course of action.

The Court can atleast clarify that the decision was based on the specific circumstances of the petition and does not constitute a precedence nor validate the contents of the adjudication order of 27th December 2011.

Naavi

(…As a Netizen Activist in the interest of all the Cyber Crime Victims of Karnataka who have been adversely affected by the order of the Karnataka High Court dated 27th May 2013 in the WP 21049/2013.)

Relevant Orders for Reference

1. Order of the Adjudicator dated 27th December 2011 (Holding that a Company cannot file a complaint under Section 43 of the ITA 2008 nor a complaint can be filed against a Company)

2.Order of the Adjudicator dated 17th January 2012 (Holding that a complaint cannot be filed against a Company under Section 43 of ITA 2008)

2.Order of the Adjudicator dated 26th April 2013 (Holding that the earlier order of 27th December 2011 has been cancelled)

3.Order of the Karnataka High Court dated 27th May 2013 (Holding that the order dated 26th April 2013 is quashed)

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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One Response to Plight of Cyber Crime Victims in Karnataka

  1. Pingback: Mumbai High Court raises the issue of Double Jeopardy | Naavi.org

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