Powers of Police under Information Technology Act, 2000

Introduction:

The police is one of the most visible and omnipresent organisation and key social element of the society whose basic function is to help the citizens in hour danger, need or crisis. The Police Act of 1861 defines police as an instrument for the prevention and detection of crime. With increase in number of crimes, it becomes very necessary for the police to become more efficient, dynamic and accessible to the local people and hence their roles, functions and duties in the society are natural to be varied and multifarious on the one hand and complicated, knotty and complex on the other hand[1].

The police organisation in India comes under the control of the Home Ministry of the State Government. The head of the police forces in a State is Director General of Police, in a district is District Superintendent of Police and in a metropolitan city is Commissioner of Police. The various legal legislations governing the police organisation in the country are as follows :

1. The Police Act, 1861: It is one of the first and major statute governing the police forces in India where it defines their power, role, and functions. According to Section 2, the State Government is empowered to decide the constitution of the state police forces, the number of officers and men to be enrolled and the pay structure and other conditions of services to be entrusted upon the subordinate ranks.
2. The Police Act, 1888: Lays down the objective of the Central Government to extend the jurisdiction and power of the State Police forces by joining two or more states and creating a special police district.
3. The Police Act, 1949: Governs the administration of police forces in Union Territories.
4. The Delhi Special Police Establishment Act, 1946: Lays down special provision for the establishment of special police force in Delhi and this body can also integrate or aid the police of other states with the concurrence of respective State Governments[2].
5. The Model Police Act, 2006: States the constitution, appointment, powers, role, responsibilities of police officers[3].

The Nature of Offences under IT Act, 2000

Section	Offence	Nature of Offence and to be tried by
65	Tampering with the computer source documents	The offence is bailable, cognizable and be tried by Court of Judicial Magistrate of First Class.
66	Computer-related offences	The offence is bailable, cognizable and be tried by Court of Judicial Magistrate of First Class.
66-A	Sending offensive messages through communication service etc.	The offence is bailable, cognizable and be tried by Court of Judicial Magistrate of First Class.
66-B	Dishonestly receiving stolen computer resource or communication device	The offence is bailable, cognizable and be tried by Court of Judicial Magistrate of First Class.
66-C	Identity theft	The offence is bailable, cognizable and be tried by Court of Judicial Magistrate of First Class
66-D	Cheating by personation by using computer resource	The offence is bailable, cognizable and be tried by Court of Judicial Magistrate of First Class.
66-E	Violation of privacy	The offence is bailable, cognizable and be tried by Court of Judicial Magistrate of First Class.
66-F	Cyber terrorism	The offence is non-bailable, cognizable and be tried by Court of Sessions
67	Publishing or transmitting obscene material in electronic form	The offence is bailable, cognizable and be tried by Court of Judicial Magistrate of First Class.
67-A	Publishing or transmitting of material containing sexually explicit act etc. In electronic form	The offence is non-bailable, cognizable and be tried by Court of Judicial Magistrate of First Class.
67-B	Publishing or transmitting of material depicting children in sexually explicit act etc., in electronic form	The offence is non-bailable, cognizable and be tried by Court of Judicial Magistrate of First Class.
67-C	Intermediary intentionally or knowingly contravening the directions about Preservation and retention of information[4]	Offence is bailable and cognizable.
68	Failure to comply with the directions given by the Controller	Offence is bailable and non-cognizable.
69	Failure to assist the agency in regard to interception or monitoring or decryption of any information through any computer resource.	Offence is non-bailable and cognizable.
69-A	Failure of intermediary to comply with the direction issued for blocking for public access of any information through any computer resource	Offence is non-bailable and cognizable.
69-B	Intermediary who intentionally or knowingly contravenes in relation to monitoring of and collection of traffic data or information through any computer resource for cybersecurity	Offence is bailable and cognizable.
70	Any person who secures access or attempts to secure access to the protected system in contravention of section 70.	Offence is non-bailable and cognizable.
70-B	Any service provider, intermediaries, data centre etc. Who fails to prove the information called for or comply with the direction issued by the Indian Computer Emergency Response Team.	Offence is bailable and non-cognizable.
71	Misrepresentation.	Offence is bailable and non-cognizable.
72	Breach of confidentiality and privacy.	Offence is bailable and non-cognizable.
72-A	Disclosure of information in breach of lawful contract.	Offence is bailable and cognizable.
73	Publication of false electronic signature certificate in certain particulars	Offence is bailable and non-cognizable.
74	Publication for fraudulent purpose.	Offence is bailable and non-cognizable.

Procedure to report Cyber Crime

The IT Act, 2000 provides for universal jurisdiction of cybercrime under Section 1(2). The complaint regarding commission of the cybercrime can be made by the victim at any cybercrime cell or unit of the police station and thus for this purpose various States have established Cyber Crime Cells to monitor, report and control cybercrimes. For making complain, the person must provide name, mailing address and telephone number and make an application to the head of the Cyber Crime Investigation Cell while filing a complaint. Certain necessary documents are required for the registration of complaint in respect of cybercrime. For example, in the case of hacking they are:

1. Server Logs[5].
2. A copy of the defaced web page in a soft copy as well as hard copy format, in case the victim’s website is defaced[6].
3. If data are compromised on the victim’s server or computer or any other network equipment, soft copy of the original data and soft copy of compromised data[7].
4. Access control mechanism details[8].
5. List of suspects if the victim is having any suspicion on anyone[9].
6. All relevant information leading to the answers to the following questions[10].
   • What is compromised?
   • Who might have compromised the system?
   • When was the system compromised?
   • Why might have been the system compromised?
   • Where is the impact of the attack-identifying the target system from the network?
   • How many systems have been compromised by the attack?

Powers of Police

Under IT Act, 2000

According to Section 80, despite the provisions of the Criminal Procedure Code (CrPC), any police officer not below the rank of Inspector or any other officer working for either Central or State Government, with permission of the Central Government may enter any public place and arrest without warrant any person who is reasonably suspected of having committed or of committing or is about to commit any offence under the IT Act, 2000. The person who is arrested by an officer other than a police officer shall be presented before a Magistrate having jurisdiction in the case without any delay or before the officer in charge of the police station. The provisions of CrPC shall apply to this section in respect of entry, search or arrest.

Under Criminal Procedure Code, 1973

Section 47 makes it lawful for policemen to break and enter into the residence of any person, in pursuit of an offender, when they have a reasonable belief that the person they wish to arrest, has entered or is within the confines of such a place[11]. However, the proviso to Section 47 of Code of Criminal Procedure, 1973 requires that if an apartment enclosure to be searched by the police is in the occupancy of a woman who according to custom does not appear in public, then the police ought to serve her a notice to withdraw and must afford her with every reasonable facility for withdrawing before breaking and entering such an apartment[12].

Section 41 of the Code empowers the police to make an arrest without warrant or without an order of the Magistrate in cases where :

1. Person commits the cognizable offence in the presence of a police officer.
2. There is a reasonable suspicion or reasonable complaint is made or credible information has been given regarding the commission of cognizable offence.
3. The police officer has a reason to believe on the basis of such complaint, information or suspicion that such person has committed a cognizable offence.

Conclusion

With the rise in technology and the use of e-services, cyber-attacks are also on the rise and cybercrimes every day are becoming more and more complex and advanced. The reporting of cyber attack in the country is very low and the country lacks adequate infrastructure to deal with such crimes. The condition is so poor that India ranks third worldwide in terms of cyber attack. This increases the responsibilities and duties of the police and draws the attention of the police organisation towards the rising loss of money, privacy and reputation of the citizens on the daily basis. Therefore, there is an urgent need to include more stringent cyber law legislation and initiatives in dealing with cybercrimes in the country and the need to prevent the rise of such crimes in contrast to the increasing rise of the use and need of technology. There is also an urgent need to increase the awareness among the people regarding cyber crimes and a need to strengthen the cybercrime cell to tackle such crimes.

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References:

[1] Functions, Roles and Duties of Police in General, (Jan 20, 2021, 06:43 PM), https://bprd.nic.in/WriteReadData/userfiles/file/6798203243-Volume%202.pdf .

[2] Ritika Sharma, Who is Police ? What are the powers and duties of police ?, Law Times Journal (Dec 27,2019), http://lawtimesjournal.in/who-is-police-what-are-powers-duties-of-police/#:~:text=Police%20is%20the%20first%20body,wrong%20is%20done%20against%20us.&text=There%20are%20many%20Acts%20like,and%20functions%20of%20police%20force.

[3] Supra note 2.

[4] Justice Raja Vijayraghavan, Laws relating go Cyber Crimes: Advances and Bottlenecks, (Jan 12, 2020, 08:57 PM),  http://www.nja.nic.in/Concluded_Programmes/2019-20/P-1198_PPTs/2.LAWS%20RELATING%20TO%20CYBERCRIMES%20-%20ADVANCES%20&%20BOTTLE

[5] S M Babar, Introduction to Cyber Crime and Procedure to report Cyber Crime , Cyber Law : Trends and Developments in India (Jan 21, 2021, 01: 29 PM), http://elib.bvuict.in/moodle/pluginfile.php/163/course/section/79/Cyber%20Law%20-%20Trends%20and%20Developments%20in%20India.pdf .

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Supra note 5.

[11] Dinesh Singh Chauhan, Power of police to enter the place to be searched under Section 47 of the CrPC, Legal Service India e-Journal (Jan 21, 2021, 12:35 PM),  http://www.legalserviceindia.com/legal/article-3072-power-of-police-to-enter-the-place-to-be-searched-under-section-47-of-the-crpc.html#:~:text=Section%2047%20makes%20it%20lawful,confines%20of%20such%20a%20place.

[12] Ibid.