The theory of functional equivalence represents a foundational legal principle that ensures electronic records and transactions receive the same legal validity and treatment as their traditional paper-based counterparts. In the context of Indian cyber law, this principle serves as the cornerstone for digital transformation while preserving the integrity of existing legal frameworks.
It is the submission of learned counsel for the applicant that applicant is suffering in confinement on false pretext. Counsel for the applicant referred the letter dated 28.02.2020 written by Station House Officer, Police Station Nai Saraye, District Ashoknagar addressed to Trial Court and report of Cyber Forensic Lab, Bhopal containing digital forensic examination report dated 12.12.2019 and subsequent report filed by the Cyber Forensic Lab, Bhopal indicates that photograph submitted by the applicant was in support of his innocence on the basis of plea of alibi. From perusal of Metadata of photograph, it is prima facie clear that the present applicant was present at Bakaspur Village Khajuri, Tahsil Badarwas, District Ashoknagar on 02.04.2019 at about 1.34 pm and time of incident is around 1.30 pm - 2.00 pm on the same day at Village Ranga, Tahsil Nai Saraye, District Ashoknagar. The distance of place of incident is around 60 kms.- 70 kms. from the place where applicant was present at 1.34 pm. Such distance can only be covered by the applicant in not less than one hour at least. Therefore, Metadata of photo and report indicate that he was present at that time at a place 60 kms.-70 kms. away from the place of incident and no tampering has been made in photograph.
According to applicant, benefit of doubt so far as grant of bail is concerned be given to him because it is the case of over implication. Applicant has been arrayed as accused on false pretext. He does not bear any criminal record. Confinement amounts to pretrial detention.
This is the case mainly in respect of digital forensic evidence and Metadata of any photograph is a big tool in the hands of forensic experts to reach to the truth about the exact nature of incident. Trial Courts are expected to scrutinize the said scientific tool with care and deep study so that forensic examination of evidence can be done to its higher standards. Metadata can be very useful especially in cases where plea of alibi is taken by the parties or accused in particular. Photo, Metadata details and report of Digital Forensic Expert should carry due certification as per Evidence Act and other relevant provisions.
Learned Advocate appearing for applicant vehemently submits that First Information Report has been filed by respondent No.2, who is the brother-in-law (wife's brother) of applicant. According to informant, applicant had created a fake Facebook account in the name of one Minal Basavraj Swami and Chandra Surnal and through the said fake Facebook account the applicant has defamed the informant and his family members, especially the wife of applicant. There was marital discord at that time between the applicant and his wife. If we consider the charge sheet, then it can be seen that there is absolutely no proper investigation. Only the screen shots of Facebook, of which prints have been taken, are annexed after seizure and there are statements of two witnesses. Only on the basis of said material it cannot be said that the said Facebook posts were created by the applicant. Therefore, there is absolutely no evidence against the applicant and, therefore, it would be futile exercise to ask the applicant to face the trial. {Para 3}
4. We take the present case as a classic case, which is investigated in total ignorance of provisions of law and by a person, who appears to have not undergone training of detecting cyber crime. When it was specifically alleged in the First Information Report that two Facebook accounts have been fraudulently created, then the Investigating Officer ought to have got help of an expert to see from which IP address those accounts were created, whether any such electronic device of the said IP address is with the accused. Print of screen shots of Facebook material will not at any stretch of imagination would prove that the said post was created from an alleged fake account. Even if for the sake of argument we accept that there was dispute between applicant and his wife and the alleged post had a defamatory material in respect of informant, his family members including his sister i.e. wife of applicant; still we cannot reach the conclusion without any evidence that the applicant would have been the only person behind creation of such fake Facebook account.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Criminal Application No. 2850 of 2019
Decided On: 22.10.2024
Mahesh Shivling Tilkari Vs. The State of Maharashtra and Ors.
Hon'ble Judges/Coram:
Vibha Kankanwadi and S.G. Chapalgaonkar, JJ.
Author: Vibha Kankanwadi, J.
Citation: MANU/MH/6841/2024.
Print PageThe common thread deducible from various judgments of the Supreme Court covering similar issues, where an act is an offence under a special statute having an overriding effect over the offence covered by the general law like Indian Penal Code, is that in order to exclude the general law or the offence therein, ingredients of the offence defined under the special statute and the Indian Penal Code will have to be the same. If even one ingredient of an offence under the Indian Penal Code is missing in the act which has been made punishable under the special statute, the Indian Penal Code section will not be excluded and still can be resorted to albeit, the provisions of section 71 of the Indian Penal Code and section 26 of the General Clauses Act will have to be borne in mind by the Courts while imposing the sentences.{Para 37}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2562 OF 2019
(AWADHESH KUMAR PARASNATH PATHAK V. THE STATE OF MAHARASHTRA AND ANOTHER)
CORAM : MANGESH S. PATIL, R.G. AVACHAT & SHAILESH P. BRAHME, JJJ.
PRONOUNCED ON : 15 APRIL 2024
In the present case, the petitioner's photographs and images, though not in themselves obscene or offensive, were taken from her Facebook and Instagram accounts without her consent and were uploaded on a pornographic website, adding derogatory captions to them. It is an irrefutable proposition that if the name and/or likeness of a person appears on a pornographic website, as in the present case, without the the consent or concurrence of such person, such act would by and in itself amount to an offence inter-alia under section 67 of the IT Act. This is so since section 67 makes it an offence to publish or transmit, or causes to be published or transmitted, in the electronic form, any material which appeals to the prurient interests of those who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. The only purpose of posting the petitioner's photograph on a pornographic website could be to use it to appeal to the prurient interests of those who are likely to see it. That apart, the inclusion of the name and/or likeness of a person on such website, even if the photograph of the person is not in itself obscene or offensive, without consent or concurrence, would at the very least amount to breach of the person's privacy, which a court may, in appropriate cases, injunct or restrain. It is is evident that such publication would likely result in ostracisation and stigmatisation of the person concerned in society; and therefore immediate and efficacious remedy is required in such cases. {Para 86}
In the High Court of Delhi at New Delhi
(Before Anup Jairam Bhambhani, J.)
‘X’ Vs Union of India and Others
W.P.(CRL) 1082/2020 & Crl. M.A. Nos. 9485/2020, 10986-87/2020
Decided on April 20, 2021
Citation: 2021 SCC OnLine Del 1788.
Print Page
5.13. There are several provisions in the Code of Criminal Procedure, 1973 as well as the Indian Evidence Act, 1872 that empowered the Trial Court to direct the Petitioner to disclose the password.
5.14. Section 139 of the Indian Evidence Act itself provides that a person may be summoned to produce a "document". The term "evidence" has been defined in Section 3 of the Indian Evidence Act inter al i a to mean " al l documents including electronic records". Therefore, the term "document" used in Section 139 of the Indian Evidence Act includes any electronic record in possession of the Petitioner. Thus, Section 139 of the Indian Evidence Act authorises the disclosure of the password by the Petitioner and hence the order dated 14.09.2020 does not abridge Petitioner's right to privacy under Article 21 of the Constitution of India.
5.15. That apart, Section 54-A of the Code of Criminal Procedure, 1973 inter alia stipulates that, where a person is charged with committing an offence; and his identification is necessary for the purpose of investigation of an offence, the Court may direct the person so arrested to subject himself to identification by any person as the Court deems fit.
5.16. In the present case, the password is nothing but an 'identification mark' of the Accused/ Petitioner by the service providers hosting his data. Therefore, the disclosure of the password is sanctioned by Law under Section 54-A of the Code.
5.17. The disclosure of password is in the nature of giving specimen signatures or handwriting. Therefore, the disclosure of password can also be ordered under Section 311-A of the Code of Criminal Procedure, 1973. 5.18. In Ritesh Sinha v. State of Uttar Pradesh (2019) 8 SCC 1, the Supreme Court of India held that the Magistrate could order the collection of voice sample under Section 311- A of the Code of Criminal Procedure, despite there being no express provision to that effect, having regard to existing realities and imminent necessity of present situation. Therefore, given the fact that the disclosure of password is akin to giving specimen signature, disclosure can be ordered under the aforesaid provision. Hence, the order dated 14.09.2020 passed by the Trial Court is sanctioned by Law.
The Hon’ble Supreme
Court of India in the case of K.S. Puttaswamy v. Union of
India (supra) held that purpose limitation is integral for
executive projects involving data collection – unless prior
permission is provided, third parties cannot be provided access
to personal data.See Para 166 of K.S. Puttaswamy Judgment
This principle is embodied in S.5 of the yet to-
be-implemented Personal Data Protection Bill, 2019.
Purpose Limitation enhances transparency in data processing
and helps examine the proportionality of the mechanism used
to collect data for a specific purpose. Moreover, it prevents the
emergence of permanent data ‘architectures’ based on
interlinking databases without consent. In the present case
the proposition of purpose limitation is not applicable as the
question of seeking consent does not arise at all. No person
much less a woman would want to create and display gray
shades of her character. In most of the cases, like the present
one, the women are the victims. It is their right to enforce the
right to be forgotten as a right in rem. Capturing the images
and videos with consent of the woman cannot justify the
misuse of such content once the relation between the victim
and accused gets strained as it happened in the present case.
If the right to be forgotten is not recognized in matters like the
present one, any accused will surreptitiously outrage the
modesty of the woman and misuse the same in the cyber
space unhindered. Undoubtedly, such an act will be contrary
to the larger interest of the protection of the woman against
exploitation and blackmailing, as has happened in the present
case. The sloganeering of “betibachao” and women safety
concerns will be trampled.
14. Section 27 of the draft Personal Data Protection Bill, 2018
contains the right to be forgotten. Under Section 27, a data
principal (an individual) has the right to prevent continuing
disclosure of personal data by a data fiduciary. The aforesaid
provision which falls under Chapter VI (Data Principal Rights)
of the Bill, distinctly carves out the "right to be forgotten" in no
uncertain terms. In terms of this provision, every data
principal shall have the right to restrict or prevent continuing
disclosure of personal data (relating to such data principal) by
any data fiduciary if such disclosure meets any one of the
following three conditions, namely if the disclosure of personal
data:
(i) has served the purpose for which it was made or is no
longer necessary; or (ii) was made on the basis of the data
principal's consent and such consent has since been
withdrawn; or (iii) was made contrary to the provisions of the
bill or any other law in force.
In addition to this, Section 10 of the Bill provides that a
data fiduciary shall retain personal data only as long as may
be reasonably necessary to satisfy the purpose for which it is
processed. Further, it imposes an obligation on every data
fiduciary to undertake periodic reviews in order to determine
whether it is necessary to retain the personal data in its
possession. If it is not necessary for personal data to be
retained by a data fiduciary, then such personal data must be
deleted in a manner as may be specified.
15. In the instant case, prima facie, it appears that the
petitioner has not only committed forcible sexual intercourse
with the victim girl, but has also deviously recorded the
intimate sojourn and uploaded the same on a fake Facebook
account. Statement recorded under Section 161 of Cr. P.C. of
the victim girl is also clearly in sync with FIR version.
Considering the heinousness of the crime, the petitioner does
not deserve any consideration for bail at this stage. However,
this Court is of the view that Indian Criminal Justice system is
more of a sentence oriented system with little emphasis on
the disgorgement of victim’s loss and suffering, although the
impact of crime on the victim may vary significantly for
person(s) and case(s)-- for some the impact of crime is short
and intense, for others the impact is long-lasting. Regardless,
many victims find the criminal justice system complex,
confusing and intimidating. Many do not know where to turn
for help. As in the instant case, the rights of the victim to get
those uploaded photos/videos erased from Facebook server
still remain unaddressed for want of appropriate legislation.
However, allowing such objectionable photos and videos to
remain on a social media platform, without the consent of a
woman, is a direct affront on a woman’s modesty and, more
importantly, her right to privacy. In such cases, either the
victim herself or the prosecution may, if so advised, seek
appropriate orders to protect the victim’s fundamental right to
privacy, by seeking appropriate orders to have such offensive
posts erased from the public platform, irrespective of the
ongoing criminal process.BLAPL No.4592 OF 2020
(In the matter of an application under Section 439,
Criminal Procedure Code, 1973)
Subhranshu Rout @ Gugul Vs State of Odisha
PRESENT
SHRI JUSTICE S.K. PANIGRAHI
Date of judgment: 23.11.2020
