There is a news report today that the Bangalore Police are so impressed with Mr Abhinav Srivastava who was arrested under the charge of hacking into UIDAI data base that there is a discussion on engaging him as a consultant for the Police. (See Report here).
At this point of time, this remains a rumour and could be a fancy wish of some. At least we have seen TV serials about such a practice in USA where “Community Service” is one of the options offered to a criminal as part of the sentence. Hence the Cyber Crime Police could create a structure for using convicted hackers to be part of the Police team for a certain number of years until the sentence runs out.
I am not sure if Criminal Jurisprudence in India provides similar innovative discretion to a Judge. Probably experienced criminal lawyers can clarify.
However, there is nothing wrong that in deserving cases, Courts could consider such innovative punishments which could be the most appropriate in some cases. But if such things are to be properly brought into the system, then we should be sure about Judges not being corrupt. We have several instances in India of Judges faking arithmetic errors and acquitting criminals or granting bail or allow convicts to be on parole on non existing grounds.
If therefore “Community Service” is allowed as a “Punishment”, then many criminals would buy such punishments and later negotiate with their mentors who are supposed to monitor the sentence to go scot free.
However, in the case of Cyber Crimes in particular, it appears that such punishments are relevant since in most cases the accused could be educated and more often becomes an offender either because of “Ignorance of law” or for psychological conditions such as “Technology Intoxication”. Such persons can be perhaps amenable to a reformatory process.
In the case of Abhinav Srivastava, this could have also been suggested as a face saver for the Police/UIDAI since the case is not strong. The case has been booked and the person has been arrested for “Unauthorized Access of Aadhar Facilities”. But actually he has perhaps created a tool which is used by third parties who made use of an “Authorized Access Source” under circumstances that there was no clear bar on his not using the source.
Without adding the 80000 members of the public who downloaded and used the App as the main accused, it would be difficult to blame only the tool manufacturer.
Further, it is difficult to establish the guilty mind (mens-rea) of the accused to bring about a criminal charge. There will be little scope of civil claims since no body may be able to prove “Wrongful loss”.
If the case is pursued further, several intermediaries also need to be considered as Co-Accused and brought to book. This would be embarrassing both for the complainant as well as the Government.
If the case is dismissed, then there is a possibility of a back lash with an accusation of mishandling of the case and possible human rights violation.
Hence some face saving solution which is a Win-Win solution for all could be a good option to consider.
One possible method by which such innovation can be brought into the system would be through a “Compounding Process” where the complainant and the accused come to a written agreement on the basis of which the Complaint is withdrawn. Probably the Police or the Court can mediate in arriving at such a compounding agreement which is acceptable to all.
Hopefully the Abhinav Case becomes a trend setter in this respect and such a compounding arrangement is worked out. Since an FIR has already been lodged in this case, the Court will have to be in the picture for the compounding agreement. In the process it would be better if an SOP (Standard Operating Procedure) would be drawn up by the Court and the Police to be used when required in future to ensure that the system is not misused .
(Since this is more a matter of Criminal Justice system, I would expect readers to correct if my contentions are incorrect and add their own comments… Naavi)