Calcutta HC Issues Directives For Equipping Police To Tackle Cyber Crimes [Read Order]

The bench comprising Justice Joymalya Bagchi and Justice Manojit Mandal was considering the bail application filed by a man who allegedly posted objectionable pictures of his wife on a social network platform and had widely circulated such materials.

Earlier, the bench had sought explanation from the Superintendent of Police as to why offences under Sections 66E & 67A of the Information Technology Act were not added to the FIR and the investigation was conducted by an Assistant Sub-Inspector of Police in violation of the provisions of Section 78 of the Information Technology Act.The SP appeared before the Court on Monday and submitted that Inspector-in-charge of the concerned police station has been directed to rectify her mistake in omitting to add offences under the Information Technology Act to the FIR and entrust investigation to an officer not below the rank of Inspector.

While granting bail to the accused, the bench noted that there is a crying need to train and familiarise members of the police force in the matter of collection, reception, storage, analysis and production of electronic evidence. The court added:

"It is also relevant to note that electronic evidence by its very nature is susceptible to tampering and/or alteration and requires sensitive handling. A breach in the chain of custody or improper preservation of such evidence render it vitiated and such evidence cannot be relied in judicial proceedings. Necessary certification under Section 65D of the Information Technology Act is also a pre-requisite for admissibility of such evidence. Even if such certification is present, reliability of electronic evidence depends on proper collection, preservation and production in court. Any lacuna in that regard would render such evidence vulnerable with regard to its probative value. These factors have come to our notice not only in the present case but also in a number of cases argued before us in recent times."

The bench the issued the following directives to 'ensure that the investigation of crimes involving electronic evidence is conducted in a fair, impartial and effective manner and such evidence are collected, preserved and produced in Court in an efficient manner and the pursuit of truth and prosecution of offenders are not affected due to the lack of expertise and knowledge of the police force in that regard':

• Director General of Police, West Bengal shall ensure proper training of members of police force in reception, preservation and analysis of electronic evidence in the police training schools on a regular basis. At least one officer in the rank of Inspector from each police station shall attend such training course and shall be certified by the police training college as an officer who is specialised in the matter of dealing in electronic evidence;

• Investigation of crimes involving offences under Information Technology Act and offences where electronic evidence plays a pre-dominant part shall be conducted by the officer/officers who has/have received specialised training in reception, preservation, analysis and protection of electronic evidence, as aforesaid, in consultation with specialised agencies;

• Every district shall have a special cyber cell comprising of officers who have specialised knowledge in the matter of dealing with electronic evidence and such special cells shall render necessary assistance to the local police stations whenever such assistance is sought for in the matter of investigation of cyber offences and/or offences involving electronic evidence;

• Director General of Police, West Bengal in consultation with experts shall submit a standard operating procedure with regard to the preservation, collection, analysis and producing of electronic evidence in criminal cases before this court on the next date of hearing. He shall also submit report with regard to steps taken with regard to implementation of directions nos. (a), (b) & (c) of this order.

• Forensic analysis of electronic evidence and/or devices are of utmost importance in order to ensure the authenticity and reliability of such evidence. Apprehension with regard to the authenticity of electronic evidence creates a hurdle in relying on such evidence when produced before law courts. It is therefore, necessary that specialised forensic units be set up in the State so as to facilitate examination and/or analysis of electronic evidence.

The bench has posted the matter on 11^th March for further consideration.

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