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INCREASING PROFESSIONAL CRIMES

IN INDIA: A CHALLENGING PROBLEMS


FOR INVESTIGATING AGENCIES

1
CHAPTER 1

INTRODUCTION

2
CHAPTER 1

INTRODUCTION

The concept of crime involves the idea of a public as opposed to a

private wrong with the consequent intervention between the criminal and

injured party by an agency representing the community as whole. Dr.

Gillian J.L. points out “More important is the feeling of danger to ourselves

and our property than the criminal induces”. [Gillian, J.L. Criminology and

penology (1945)]

Halsbury defines crimes as “an unlawful act or default, which is an offence

against the public and which renders the perpetrator of the act or default liable

to legal punishment”.

The elements which are related with the criminality of human being may be

considerd as family circumstances, A rvined family, The size of the family,

Serial placement among brothers in a family, Discontentedness in the family,

Fallen family, Absense of children in the family, Living in disorganized

company, Disorganized living, Movies, Fanancial conditions, Regional

variance etc.

For semi-urban and rural india, cities have gradually come to signity

prosperity better quality of life, And higher income underlined by a modern

life style and facilities of all the parameters that are perceived to quality a

successful life in the present context, Living in a city is perhaps one of the

most significant and sought after Crimes trends under major heads from 1953-

2011 reveal that crime such as dacoity and burglary/house breaking of 59

3
years bovever, Crimes such as murder,rape,kidnapping& a eduction robbery

and riots have been on the rise.

The police force and investigating agencies in india is constrained by the lack

of edequate manpower, equipment, technology & technical know how and to

some extent political will.

The main causes of crimes are victim of unfair ruling and the correction

system,drugs, Dipression and other social and mental disorders, Family

condition,Regionalism,T.V.violence,Racism,Politics,Poverty,over population.

In the society, at present the crime will happened with new dimention as

haking, switch the personal information by internet, cyber crime, chain

snatching, speculate, acid attack, online racketeir, Religious communal riots

by social media, White collar crime, corruption, drug trafficking, human

trafficking and migrant smuggling, money laundering, piracy, human organ

trafficking, rare animal smuggling, cyber pornography, haking, ransom for

money etc.

The cyber crime is a new invention of crimes made by a class of

intellectual,sophisticated criminals. Since long time the criminal jurisprudence

was totally ignorantof such types of crimes, although these were committed in

different forms during earlydevelopment of crimes and criminology. One can

say that the cyber crimes started to operate when technology reaches its peak

and took new tum to satisfy human needs and desires. Because such cnmes

being committed with the help of machines and on arithmetical formulation,

are different types in nature from that of ordinary typesofcrimes.These crimes

contain the elements of blue collar and white collar crimes. These are blue

4
collar crimes because these are not very different from other prototype crimes,

though recognized by various names. These are also white collar in nature

because crimes are usually committed by a class of criminals who are having

knowledge about science and technologies. For this reason I dare to say that

cyber crimes are an amalgamation of blue collar and white collar crimes.

In the selected subject of work, researcher made a thorough study on the new

forms of crimes. The criminals of this advanced age endeavour to commit this

new crimes with the help of computers through Internet by exploiting cyber

space. This is a new subject and the world facing problem to tackle the

situation .It is important to know the history and gradual development of

modem computer and its application. Historically the modem computer of the

first decade of 2nd century directly descended from calculating machines, like

IBM-I, Automatic Sequence Controlled calculator. The history of computer is

directly linked with the history of computation. The modem computer can

work with number, its main use for storing and manipulating information. The

outcome of the computer is the result of the contributions made by unknown

persons.

Worldwide, many countries have enacted their own criminal laws, computer

laws, information technology laws or intellectual property laws etc. to respond

to the problem of cyber criminality, but keeping in view the international

dimensions of these crimes, problems often do arise, particularly where the

crime relates to individual citizens of two or more foreign countries. The

crucial problem, therefore, is that internet as a global media may be accessed

throughout the world and can be viewed in any part of the universe, hence

which particular law will be applicable for the disputed transaction, becomes a

5
ticklish question because of the variation in cyber laws of different countries.

Under these circumstances, the development of a universal law governing

cyberspace transactions would make it much easier to decide about the

applicability of law to regulate a particular online activity. It really calls for a

coordinated action for all alike including the people, institutions, industries,

governments and above all, the states. Since cyber crime have an international

ramification, it has to be tackled through a common legal strategy which has

universal acceptance and recognition. These types of new crimes in the society

make a difficulty in the investigation by the agenies for investigation.

Excessive workload due to inadequacy for manpower and long working bours

even on holidays and the absence of shift system, There are in the society non

co-operative attitude of the public at large, Inadequancy of logistical and

forensic back up support, inadequacy of trained investigating personal,

inadequacy of training facilities in investigation, lack of coordination, misuse

of bail and inticipatory bail provisions, political and executive interference,

inadequary of staff; lack of technical knowledge for new crimes by

professionals.Solution of these difficultics of investigating agencies to appoint

full staff which is required according the population separation of

investigation wing from law and orderwing, investigation by a team, insularity

and in tegrity of the investigating agency, placement policy of investigation

staff, supervision by expert, comprehensive use of forensic science from the

inception.

White collar criminality has become a global phenomenon with the advance of

commerce and technology. Like any other country, India is equally in the grip

of white collar criminality. The recent developments in information

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technology, particularly during the closing years of the twentieth century, have

added new dimensions to white collar criminality. There has been

unprecedented growth of a new variety of computer dominated white collar

crimes which are commonly called as cyber crimes. These crimes have

become a matter of global concern and a challenge for the law enforcement

agencies in the new millennium. Because of the specific nature of these

crimes, they can be committed anonymously and far away from the victims

without physical presence. Further, cyber-criminals have a major advantage:

they can use computer technology to inflict damage without the risk of being

apprehended or caught. It has been predicted that there would be simultaneous

increase in cyber crimes with the increase in new internet web sites. The areas

affected by cyber crimes are banking and financial institutions, energy and

telecommunication services, transportation, business, industries etc.

Worldwide, many countries have enacted their own criminal laws, computer

laws, information technology laws or intellectual property laws etc. to respond

to the problem of cyber criminality, but keeping in view the international

dimensions of these crimes, problems often do arise, particularly where the

crime relates to individual citizens of two or more foreign countries. The

crucial problem, therefore, is that internet as a global media may be accessed

throughout the world and can be viewed in any part of the universe, hence

which particular law will be applicable for the disputed transaction, becomes a

ticklish question because of the variation in cyber laws of different countries.

Under these circumstances, the development of a universal law governing

cyberspace transactions would make it much easier to decide about the

applicability of law to regulate a particular online activity. It really calls for a

7
coordinated action for all alike including the people, institutions, industries,

governments and above all, the states. Since cyber crime have an international

ramification, it has to be tackled through a common legal strategy which has

universal acceptance and recognition. The Socio-Economic Offences have

been incepted since times immemorial, but remained dormant until the

beginning of World War II, However, according to Prof. Albert Morris the

first paper entitled "Criminal Capitalists" on the subject was presented by

Edwin C.Hill before the International Congress on the Prevention and

Repression of Crime at London in 1872. Prof, A.Morris himself had drawn the

attention of criminologists towards this newer form of criminality in 1934.1

Nevertheless, the statue of this newer form of criminality was for the first time

shaped by a well known criminologist Prof. Edwin H. Sutherland in 1939.

Sutherland described these newer crimes as White Collar Crimes.

The two world wars badly affected the whole set-up of our community at

large, resulting in the sudden upsurge of many problems. One of the major

problems was the scarcity of the essential things and a mounting demand, for

them. The people occupied in trade (i.e. businessmen) started to take

advantage of the war situation; thereby avarice and rapacity developed among

them, which accelerated the growth of the newer form of criminality in a

substantial way. For instance, the big business corporations of America — as

noticed by Sutherland indulged in the commission of various white collar

crimes, which are as follows:

“Promulgating false or misleading advertising, illegal exploitation of

employees, mislabelling of goods, violation of weights and measures statutes,

8
conspiring to fix prices, selling adulterated food stuffs and evading corporate

taxes etc.”

1.1 Statement of Problem:


The problem of professional offence has arisen in the
forms of a serious problem. Society effected by this types of
crimes. In the present time there are increasingly growing
professional crimes. As the technology is evolving, the
professional crimes are rapidily growing. Although the
investigating agencies are skilled in crime investigation, even
though there are many problems in crime investigation of
professional crimes. Thus its challenging problem to investigating
agencies for investigation and prevention of these crimes.
1.2 Objectives of the study:
1. To understand the nature and causes of professional crimes.
2. To understand the reasons of increasing of professional
crimes.
3. To know the new emerging of professional crimes.
4. To understand the difficulties and problems of investigation
of such crimes.
5. To know the arising problems in investigation.
1.3 Formation of hypothesis:
As the technology is evolving, technical knowledge and
industrialization and social mobility in the society, increased new
types of crimes called professional crimes are speedily increasing.
These modern types of crimes are challenging and difficulties to
investigating agencies.

9
CHAPTER 2

CRIME: CONCET AND


CAUSATION

10
CHAPTER 2

CONCEPT OF CRIME

In ordinary language, a crime is an unlawful act punishable by a state or other


authority. The term "crime" does not, in modern criminal law, have any simple
and universally accepted definition, though statutory definitions have been
provided for certain purposes. The most popular view is that crime is
a category created by law; in other words, something is a crime if declared as
such by the relevant and applicable law. One proposed definition is that a
crime or offence (or criminal offence) is an act harmful not only to some
individual but also to a community, society or the state ("a public wrong").
Such acts are forbidden and punishable by law.

The notion that acts such as murder, rape and theft are to be prohibited exists
worldwide. What precisely is a criminal offence is defined by criminal law of
each country. While many have a catalogue of crimes called the criminal code,
in some common lawcountries no such comprehensive statute exists.

The state (government) has the power to severely restrict one's liberty for
committing a crime. In modern societies, there are procedures to which
investigations and trials must adhere. If found guilty, an offender may
be sentenced to a form of reparation such as a community sentence, or,
depending on the nature of their offence, to undergo imprisonment, life
imprisonment or, in some jurisdictions, execution.

Usually, to be classified as a crime, the "act of doing something criminal"


(actus reus) must – with certain exceptions – be accompanied by the
"intention to do something criminal" (mens rea).

While every crime violates the law, not every violation of the law counts as a
crime. Breaches of private law (torts and breaches of contract) are not
automatically punished by the state, but can be enforced through civil
procedure.

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Overview

When informal relationships and sanctions prove insufficient to establish and


maintain a desired social order, a government or a state may impose more
formalized or stricter systems of social control. With institutional and legal
machinery at their disposal, agents of the State can compel populations to
conform to codes and can opt to punish or attempt to reform those who do not
conform.

Authorities employ various mechanisms to regulate (encouraging or


discouraging) certain behaviors in general. Governing or administering
agencies may for example codify rules into laws, police citizens and visitors to
ensure that they comply with those laws, and implement other policies and
practices that legislators or administrators have prescribed with the aim of
discouraging or preventing crime. In addition, authorities
provide remedies and sanctions, and collectively these constitute a criminal
justice system. Legal sanctions vary widely in their severity; they may include
(for example) incarceration of temporary character aimed at reforming the
convict. Some jurisdictions have penal codes written to inflict permanent
harsh punishments: legal mutilation, capital punishmentor life without parole.

Usually, a natural person perpetrates a crime, but legal persons may also
commit crimes. Conversely, at least under U.S. law, nonpersons such as
animals cannot commit crimes.

The sociologist Richard Quinney has written about the relationship between
society and crime. When Quinney states "crime is a social phenomenon" he
envisages both how individuals conceive crime and how populations perceive
it, based on societal norms.

Etymology

The word crime is derived from the Latin root cernō, meaning "I decide, I give
judgment". Originally the Latin word crīmen meant "charge" or "cry of
distress."[8] The Ancient Greekword krima (κρίμα), from which the Latin
cognate derives, typically referred to an intellectual mistake or an offense
against the community, rather than a private or moral wrong.[9]

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In 13th century English crime meant "sinfulness", according
to etymonline.com. It was probably brought to England as Old
French crimne (12th century form of Modern Frenchcrime), from
Latin crimen (in the genitive case: criminis). In Latin, crimen could have
signified any one of the following: "charge, indictment, accusation;
crime, fault, offense".

The word may derive from the Latin cernere – "to decide, to sift" (see crisis,
mapped on Kairos and Chronos). But Ernest Klein (citing Karl Brugmann)
rejects this and suggests *cri-men, which originally would have meant "cry of
distress". Thomas G. Tucker suggests a root in "cry" words and refers to
English plaint, plaintiff, and so on. The meaning "offense punishable by law"
dates from the late 14th century. The Latin word is glossed in Old English
by facen, also "deceit, fraud, treachery", [cf. fake]. Crime wave is first attested
in 1893 in American English.

Definition

England and Wales

Whether a given act or omission constitutes a crime does not depend on the
nature of that act or omission. It depends on the nature of the legal
consequences that may follow it.[10]An act or omission is a crime if it is
capable of being followed by what are called criminal proceedings.[11][12]

History

The following definition of "crime" was provided by the Prevention of Crimes


Act 1871, and applied for the purposes of section 10 of the Prevention of
Crime Act 1908:

The expression "crime" means, in England and Ireland, any felony or the
offence of uttering false or counterfeit coin, or of possessing counterfeit gold
or silver coin, or the offence of obtaining goods or money by false pretences,
or the offence of conspiracy to defraud, or any misdemeanour under the fifty-
eighth section of the Larceny Act, 1861.

Scotland

13
For the purpose of section 243 of the Trade Union and Labour Relations
(Consolidation) Act 1992, a crime means an offence punishable on indictment,
or an offence punishable on summary conviction, and for the commission of
which the offender is liable under the statute making the offence punishable to
be imprisoned either absolutely or at the discretion of the court as an
alternative for some other punishment.

Sociology

A normative definition views crime as deviant behavior that violates


prevailing norms – cultural standards prescribing how humans ought to behave
normally. This approach considers the complex realities surrounding the
concept of crime and seeks to understand how
changing social, political, psychological, and economic conditions may affect
changing definitions of crime and the form of the legal, law-enforcement, and
penal responses made by society.

These structural realities remain fluid and often contentious. For example: as
cultures change and the political environment shifts, societies
may criminalise or decriminalise certain behaviours, which directly affects
the statistical crime rates, influence the allocation of resources for the
enforcement of laws, and (re-)influence the general public opinion.

Similarly, changes in the collection and/or calculation of data on crime may


affect the public perceptions of the extent of any given "crime problem". All
such adjustments to crime statistics, allied with the experience of people in
their everyday lives, shape attitudes on the extent to which the State should
use law or social engineering to enforce or encourage any particular social
norm. Behaviour can be controlled and influenced by a society in many ways
without having to resort to the criminal justice system.

Indeed, in those cases where no clear consensus exists on a given norm, the
drafting of criminal law by the group in power to prohibit the behaviour of
another group may seem to some observers an improper limitation of the
second group's freedom, and the ordinary members of society have less respect
for the law or laws in general – whether the authorities actually enforce the
disputed law or not.

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Other definitions

Legislatures can pass laws (called mala prohibita) that define crimes against
social norms. These laws vary from time to time and from place to place: note
variations in gamblinglaws, for example, and the prohibition or
encouragement of duelling in history. Other crimes, called mala in se, count as
outlawed in almost all societies, (murder, theft and rape, for example).

English criminal law and the related criminal law of Commonwealth countries
can define offences that the courts alone have developed over the years,
without any actual legislation: common law offences. The courts used the
concept of malum in se to develop various common law offences.

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1. Definition of crime:

The concept of crime involves the idea of a public as opposed to a private

wrong with the consequent intervention between the criminal and injured party

by an agency representing the community as whole. Crime is thus the

international commission of an act deemed socially harmful; or dangerous and

the reason for making any given act a crime is the public injury that would

result from its frequent participation. The society therefore takes steps for its

preventation by prescribing specific punishments for each crime.

1.1: The word ‘crime’ is of origin viz; ‘Crimean’ which means ‘charge’ or

‘offence’ Crime is a social fact.

1.2: The Waverly Encyclopedia defines it as, “An act forbidden by law and

for performing which the perpetrator is liable to punishment”.

1:3. James Anthony Froude (1818-94) wrote, “Crime is not punished as

offence against God, but as prejudicial to society”.

1.4: Sir John Hare (1844 - 1921) Explains, “Crimes sometimes shock us too

much: Vices always too little”.

1.5: Dr. Gillian J.L. points out, “More important is the feeling of danger to

ourselves and our property than the criminal–induces”.1

1.6: Mr. Justin Millar contends that the crime is the commission or omission

of act which the law forbids or commands under pain of punishment to be

imposed

1
Gillian,J.L. Criminology and Penology

16
by the State.

1.7: Watermark Says that customs and laws are based on moral ideas and that

‘crimes’ are such modes of behavior as are regarded by society as crimes.

1.8: According to Adler, ‘Crime’ is merely, “an instance of behavior

prohibited by criminal law”.

1.9: According to the Italian school of criminologists, crime is abnormal in so

for as it is atavistic or pathological in its nature.

1.10: Halsbury defines crime as, “an unlawful act or default, which is an

offence against the public and which renders the perpetrator of the atc or

default liable to legal punishment”.

1.11: Sellin, T. regards crime as a deviation from or breach of, a conduct

norm. This deviation or breach is punished by society by means of its

sanction. But punishment is not only the criterion of value. Religion, art,

education and other sociological agencies also reveal value .2According to this

definition, crime is an act in violation of the law an the criminal is a person

who does an act in violation of the law.

1.12: The concise Encyclopedia of crime and criminals, has defined ‘crime’

thus: “A crime is an act or default which prejudices the interests of the

community and is forbidden by law under pain of punishment. It is an offence

against the State, as contrasted with loot or a civil wrong, which is a violation

of a right of an individual and which does not lead to punishment.3

2
Sellin T. Culture conflict and crime
3
Sir Harold Scott (edited)

17
1.13: Crime in international context-“crime is complex, multidimensional

event that occurs when 0the law, offender on target (refers to a persom in

personal crime and or object in property) converge in time and place (such as a

street, corner, address, building or street segment)”.

1.14: Crime in Indian context-“Crime is a activity that involves breaking the

law and enforcements.

1.15: Meaning of crime in oxford dictionary-“an offence against an individual

or the state which is punishable by law.

1.16: Crime-“An act committed or omitted in violation of law for bidding or

commanding.”

1.17: Gwyenn Nettle: - Clearly remarks “Crime is work not added”. To fully

appreciate the import of this remark it is necessary to recognize that the term

crime is also part of the scheme of classification. It constitutes a category of

events that contains within it numerous subcategories. At the same time the

category of crime is itself a subcategory of a larger set of events.

1.18: Crime is phenomenon in human societies, according to Sociologist- Pris

and Durkheim, “Criminality proceeds from the very nature of humanity itself,

it is not transcendent but immanent.” Durkheim emphasized the point further

when he says “Crime is normal in human societies because the fundamental

condition of social organization logically imply it”.” A society exempt from

crime would require a standardization of the moral concepts of all individuals,

which is neither possible nor desirable”.

18
1.19: Garofalo’s “natural” definition : crime is an immoral and harmful act

that is regarded as criminal by public opinion because it is an “injury to so

much of the moral sense as is represented by one or the other of the

elementary altruistic sentiments of probity and pity. Moreover, the injury must

wound these sentiments not in their superior and finer degrees, but in the

average measure in which they are possessed by a community – a measure

which is indispensable for the application of the individual to society”.

1.20: Crime: activities that involve breaking the law. 4

1.21: Crime, the intentional commission of an act usually deemed socially

harmfully of dangerous and specifically defined, prohibited, and punishable

under the criminal law.

1.22: Conceptions of crime very so widely from culture to culture and change

with time to such an extent that it is extremely difficult to name any specific

act universally regarded as criminal –(The New Encyclopedia Britannica

Volume No. 5 -1985)

We would give our own definition of crime. So as to bring all the essential

features of what we call ‘crime’. A crime may be defined as an act or

omission, sinful or non-sinful, which a society or a study has of thought fit to

punish or otherwise deal with under its laws for the time being in force. The

different acts and or omissions so punishable under the law are known as

“Crimes”. In this modern age, sociologists have expanded that crime happens

in the social structure only. They don’t agree that a human being happens to be

a criminal by birth. They also analytically put forth many social factors which

4
Oxford dictionary

19
induce human beings towards criminality by going against the system of social

control. Criminologists have proved these reasons leading to crime.

2: Factors leading to crime:

2.1: Ordinary factors.

2.2: Specific factors.

2.1: Ordinary Factors:

These factors affect the whole of the society. Further these ordinary factors

are

divided into four secondary factors. Those are -

2.1.1- Geographical.

2.1.1 - Sociological.

2.1. 3 - Physiological.

2.1.4 - Atmospheric.

2.1.1- Geographical Factors:

In the evolution of society the geographical elements play an important role.

This has been accepted by historian’s torsions and sociologists. A supporter of

the school of geographical thinker’s tradition, Mr. Huntington states that a

child born in winter usually becomes less intelligent. Some of such children

become criminals. The geographical elements affect the emotions and

behavior of an individual. Many of the French, Italian and German

20
criminologists have tried to show the relation between the features of

geographical elements and the proportion of crimes. Mr. Lombroso has also

prepared a calendar showing the occurrence of crimes in specific months of

the year. According to him, child murders are proportionally more in the

period from January to April. In July, murders and total attacks are found to

increase. Human needs change according to the changes in seasons. e.g. in

winter in the European countries, the primary (basic) needs increase and if

there are obstacles in satisfying their needs, the individuals have a tendency to

criminal acts.

“By geographical factors, we mean those factors which are connected with

physical environment. The geographical setting governs the form of society.

Due to geographical differences we find different types of culture and

civilization in different geographical regions. The composition of population is

closely connected withgeographical conditions. Similarly deit, habbits and

social organization always develop in accordance to geographical conditions.

Therefore whenever there is any change in the geographical setting there is

also change in society.”5

2.1.2 - Sociological Factors:

The number of crimes increases or decreases depending upon how far a

society or a community is organized or divided. In a social group where

migration, cultural differences, changes in the population and political

instability prevail; there a conflict arises regarding the abatement of social

rules.

5
K. Singh

21
2.1.3- Physiological Factors:

As a living being, man’s physique, heredity and the functions of body glands

are taken into consideration. In the opinion of Lombroso (a crime specialist)

there is abnormality in the body and mind of a criminal right from his birth.

Hence he becomes a criminallator in his life. A man of oppressive and bad

tempered mentality becomes a criminal. Broadly speaking, an individual

inherits some of the organic properties from the parents. We call these as

hereditary qualities. This inherited behavioral property is mainly responsible

for the criminal attitude. Hereditary weakness and criminal attitude convert a

man into a criminal. The life style of every human being is affected largely by

the hereditary qualities.6 Hence, the consequent circumstances of hereditary

qualities cause the future generations to be criminal minded continuously.

Some psychologists say that criminal behavior has its roots in the

psychological set up of an individual. During the gradual psychological

development of an individual some mental weaknesses take shape. These

weaknesses become the causes of criminal behavior. Mental instability and

criminality are closely related. Some psychiatrists have tried to correlate

criminality with the abnormality in the nerves. Disappointment, conflict,

feeling of criminality, mental shocks etc. one related with the human mental

activities and they become responsible for the criminal behavior. Sociologists,

Psychologists and Psychiatrists have deeply studied of human behavior. These

stimuli are created from eternal circumstances.

2.1.4- Circumstantial Elements:

6
Mr. Ddugdale (American Criminologist)

22
These are related with the criminality of human beings. The following

circumstantial elements may be considered -

2.1.4.1 - Family Circumstances:

The family is looked upon as a powerful cause of forming good or bad

personality developments. The very important task of a family is to socialize

an individual and to impart social rules and to develop the individual

culturally, so that the individual becomes a responsible citizen. But, under

certain circumstance this family responsibility fails and the members of the

family tend to become criminals.

2.1.4.2 - A Ruined Family:

If in a family, the father and the mother are divorced, or dead, or living

separately then such a family is in the ruins. The children of a such a family

turn towards criminality. This has been proved from various researches

conducted so far.

2.1.4.3 - The Size of the Family:

A big or a small family is respectively denoted by the number of members in

the family. More members make a big family and fewer members make a

small family. Usually in a big family there will be difficulties regarding food

and management. In such large families, generally children are neglected and

such neglected children tend to become criminals. In these matters there have

not been researcher showing a definite relation of criminality with the size of

the family. Still, in the urban areas, children in the big families generally turn

to criminal behavior.

23
2.1.4.4 - Serial Placement among Brothers in a Family:

Research has been conducted to show the probability of criminality of a

brother by his servility among his brothers. Some criminologists of New York

have conducted research in 1930 to give the aforesaid conclusions. Generally

the brother in the 2nd place of servility tends to become a criminal. The last

but one child does not generally have a criminal behavior. The youngest child

may turn to criminal behavior as compare with the elder brothers.

2.1.4.5 - Discontentedness in the Family:

If the inter-relation between parents and children are not complacent, or

instead of love, binding, sympathy, loyalty, c-operation belief, dedication there

are conflict, alienation, disbelief, selfishness, unreasonable behavior, rivalry in

the family then the members of the family especially the children behave in a

dissatisfactory manner. From this, the criminal attitude arises.

2.1.4.6 - Fallen Family:

If the responsible person or persons of a family are involved in drinking,

extramarital relations, polygamy and criminality, the atmosphere in the family

is not moralistic and such a family is known as a fallen family. In such a

family, criminality of individuals or specially children is very probable. Such a

family is unable to impart civilized life or behavior.

2.1.4.7 - Absence of Orderliness in the Family:

The most important duty of the family guardians is to be attentive towards the

socially acceptable behavior of individuals and children in the family. They

24
don’t find time as they are involved in their own duties. Further, they don’t

have desire or they are ignorant and they have undue or over belief in their

children. Whatever be the case, if the guardians don’t care for the proper

behavior of the children, then they will certainly turn towards criminal

behavior.

2.1.4.8- Disorganized company:

Living in disorganized company, in congestion and having immoral behavior

in a heterogeneous community develop due to cinema. Disorganization breeds

crime. Further, in the fast growing cities the increasing population is taken to

be one of the prime factors in criminal activities.

2.1.4.9- Financial Conditions:

Monitory conditions are taken to be crime breeding reasons in three

ways.Difference in social status due to monitory conditions cause criminal

acts and the extent of such effect can be studied. Besides, the effects of various

professions on criminal behavior can also be studied. The atmospheric

elements are more responsible for criminal activity and the criminal activity is

abundant in a disorganized society. In societies in which the important

regulations are broken, the criminal activity forms a firm background.7

However in many disorganized societies, individuals are found to stay free

from criminal activities. And in well organized societies, some individuals

may turn to criminal behavior. It is but obvious that the criminality is more

probable in the disorganized societies, than the organized societies.

7
Mr. Bonger (Dutch Criminologist)

25
CHAPTER 3

PROFESSIONAL CRIMES AND


THEIR REASION

26
CHAPTER 3

PROFESSIONAL CRIMES AND THEIR REASION

3. WHITE COLLAR CRIMES IN INDIA


White Collar Crimes are rapidly increasing in our country with the
advancement of commerce and technology. The recent developments in the
technology have given new dimensions to computer related crimes known as
cyber crimes. As such, the white collar crimes are increasing with the
development of new websites. The areas affected by these crimes are banking
and financial institutions, industry, business etc.
Thus crime is an act or omission which constitutes an offence and is
punishable under the law. As the white collar crimes are increasing on daily
basis, it injures the society on a large scale because the laws are not properly
administered and therefore there is a need to curb the factors that are helping
in the commission of such crimes.

LAWS RELATING TO WHITE COLLAR CRIMES


The government of India has introduced various regulatory legislations, the
breach of which will amount to white-collar criminality. Some of these
legislations are Essential Commodities Act 1955, the Industrial (Development
and Regulation) Act, 1951.,The Import and Exports (Control) Act, 1947, the
Foreign Exchange (Regulation) Act, 1974, Companies Act, 1956, Prevention
of Money Laundering Act, 2002.
The Indian Penal Code contains provisions to check crimes such as Bank
Fraud, Insurance fraud, credit card fraud etc. In case of money laundering
several steps have been taken by the government of India to tackle this
problem. The Reserve Bank of India has issued directions to be strictly
followed by the banks under KYC (Know Your Customer) guidelines. The
banks and financial institutions are required to maintain the records of
transactions for a period of ten years.

27
In order to tackle with computer-related crimes, Information Technology Act,
2000 has been enacted to provide legal recognition to the authentication of
information exchanged in respect of commercial transactions.
Section 43 and 44 of Information Technology Act prescribes the penalty for
the following offences:

 Unauthorised copying of an extract from any data.


 Unauthorised access and downloading files.
 Introduction of viruses or malicious programmes.
 Damage to computer system or computer network.
 Denial of access to an authorised person to a computer system.
 Providing assistance to any person to facilitate unauthorised
access to a computer.
Though the focus of Information Technology Act is not on cybercrime as
such, this Act has certain provisions that deal with white collar crimes.
Chapter XI deals with the offence of cyber crime and chapter IX deals with
penalties and adjudication of crime. Apart from this, many issues are
unresolved due to lack of focus. Some of them are:

 Inapplicability
 Qualification for appointment as adjudicating officer not
prescribed
 Definition of hacking
 No steps to curb internet piracy
 Lack of international cooperation
 Power of police to enter and search limited to public places
 Absence of guidelines for investigation of cyber crime
There are some measures to deal with white-collar crimes. Some of them are,
creating public awareness of crimes through media or press and other audio-
visual aids and legal literacy programmes. Special tribunals should be
constituted with power to sentence the offenders for at least 5 years and
conviction should result in heavy fines rather than arrest and detention of
criminals. Unless the people will strongly detest such crimes, it is not possible
to control this growing menace.

28
3.1 - Types of White Collar Crime In India:

Bank Fraud:

To engage in an act or pattern of activity where the purpose is to defraud a

bank of funds.

Blackmail:

A demand for money or other consideration under threat to do bodily harm, to

injure property, to accuse of a crime, or to expose secrets taker. You may be

charged with bribery whether you offer the bribe or accept it.

Bribery:

When money, goods, services, information or anything else of value is offered

with intent to influence the actions, opinions, or decisions of the favour of

thems.

Cellular Phone Fraud:

The unauthorized use, tampering, or manipulation of a cellular phone or

service. This can be accomplished by either use of a stolen phone,or where an

actor signs up for service under false identification or where the actor clones a

valid electronic serial number (ESN) by using an ESN reader and reprograms

another cellular phone with a valid ESN number.

Computer fraud:

Where computer hackers steal information sources contained on computers

such as: bank information, credit cards, and proprietary information.

29
Counterfeiting:

Occurs when someone copies or imitates an item without having been

authorized to do so and passes the copy off for the genuine or original item.

Counterfeiting is most often associated with money however can also be

associated with designer clothing, handbags and watches.

Credit Card Fraud:

The unauthorized use of a credit card to obtain goods of value.

Currency Schemes:

The practice of speculating on the future value of currencies.

Crime Against Educational Institutions:

Yet another field where collar criminals operate with impunity are the

privately run educational institutional in this country. The governing bodies of

those institutions manage to secure large sums by way of government grants of

financial aid by submitting fictitious and fake details about their institutions.

The teachers and other staff working in these institutions receive a meager

salary far less than what they actually sign for, thus allowing a big margin for

the management to grab huge amount in this illegal manner.

Embezzlement:

When a person who has been entrusted with money or property appropriates it

for his or her own use and benefit.

Extortion:

30
Occurs when one person illegally obtains property from another by actual or

threatened force, fear, or violence, or under cover of official right.

Engineering :

In the engineering profession underhand dealing with contractors and

suppliers, passing of sub-standard works and materials and maintenance of

bogus records of work-charged labour are some of the common examples of

white collar crime. Scandals of this kind are reported in newspapers and

magazines almost every day in our country as example Er. Yadav Singh.

Fake Employment Placement Rackets:

A number of cheating cases are reported in various parts of the country by the

so called manpower consultancies and employment placement agencies which

deceive the youth with false promises of providing them white collar jobs on

payment of huge amount ranging from 50 thousands to two lakhs of rupees.

Forgery:

When a person passes a false or worthless instrument such as a check or

counterfeit security with the intent to defraud or injure the recipient.

Insider Trading:

When a person uses inside, confidential, or advance information to trade in

shares of publicly held corporations.

Insurance Fraud:

31
To engage in an act or pattern of activity wherein one obtains proceeds from

an insurance company through deception.

Investment Schemes:

Where an unsuspecting victim is contacted by the actor who promises to

provide a large return on a small investment.

Larceny/Theft:

When a person wrongfully takes another person's money or property with the

intent to appropriate, convert or steal it.

Legal Profession:

The instances of fabricating false evidence, engaging professional witness,

violating ethical standards of legal profession and dilatory tactics in collusion

with the ministerial staff of the courts are some of the common practices

which are, truly speaking, the white collar crimes quite often practiced by the

legal practitioners.

Money Laundering:

The investment or transfer of money from racketeering, drug transactions or

other embezzlement schemes so that it appears that its original source either

cannot be traced or is legitimate.

Medical profession:

White collar crimes which are commonly committed by persons belonging to

medical profession include issuance of false medical certificates, helping

32
illegal abortions, secret service to dacoits by giving expert opinion leading to

their acquittal and selling sample-drug and medicines to patients or chemists

in India

Securities Fraud:

The act of artificially inflating the price of stocks by brokers so that buyers can

purchase a stock on the rise.

Tax Evasion:

When a person commits fraud in filing or paying taxes. The complexity of tax

laws in India has provided sufficient scope for the tax-payers to evade taxes.

The evasion is more common with influential categories of persons such as

traders, businessmen, lawyers, doctors, engineers, contractors etc. The main

difficulty posed before the Income Tax Department is to know the real and

exact income of these Professionals. It is often alleged that the actual tax paid

by these persons is only a fraction of their income and rest of the money goes

into circulation as ‘black money.

Telemarketing Fraud:

Actors operate out of boiler rooms and place telephone calls to residences and

corporations where the actor requests a donation to an alleged charitable

organization or where the actor requests money up front or a credit card

number up front, and does not use the donation for the stated purpose.

Weights and Measures:

33
The act of placing an item for sale at one price yet charging a higher price at

the time of sale or short weighing an item when the label reflects a higher

weight.

Reasons For Growth Of White Collar Crimes In India:

White collar crimes are committed out of greed. The people who usually

commit these crimes are financially secure.

 Financial or physical duress.

 White collar crimes are estimated to cost society many times more

than crimes such as robbery and burglary. The amount of death

caused by corporate mishap, such as inadequate pharmaceutical

testing, far outnumbers those caused by murder.

 The emergence of cutting edge technology, growing businesses, and

political pressures has opened up new avenues for these criminal

organizations to prosper.

 This increase is due to a booming economy and technological

advancement such as the Internet and fast money transfer systems.

Law enforcement is sometimes reluctant to pursue these cases because

they are so hard to track and investigate.

It is very difficult to detect as white collar crimes always committed in

privacy of an office or home and usually there is no eyewitness.

But naturally a question arises that if we have specific legislations to trace out

White Collar Criminality then why these offenders go unpunished. Main

34
reasons for which these white Collar criminals or occupational criminals go

unpunished are

i) Legislators and the law implementers belong to the same group or class to

which these occupational criminals belong;

ii) Less police effort;

iii) Favorable laws;

iv) Less impact on individuals.

The judiciary is equally, if not more, guilty of delaying justice. With white-

collar crimes on the rise, it is necessary for the judiciary and police to

distinguish between white-collar crimes, petty crimes and acts of homicide

and violence. Sending everyone to the same jail is also unfair. India needs

different detention centers for different kinds of criminal misconduct. At this

present juncture what we need is the strengthening of our enforcement

agencies such as Central Bureau of Investigation, the Enforcement

Directorate, The Directorate of Revenue Intelligence, The Income-tax

Department and the Customs Department. Concentration and distribution of

national wealth must be done in a proper manner. Speedy trial should be

arranged by appointing more Judges. Central Vigilance Commission must

keep a constant vigil on the workings of the top ranking officers. General

public must not avoid being engaged themselves in the prosecution of the

White-collar criminals as the offence in general is directed towards them.

Lastly if they are traced and proved guilty then Deterrent Theory of

punishment is an option one.

35
3.1 - Cyber Crimes:

Cyber crimes are any crimes that involve a computer and a network. In some

cases, the computer may have been used in order to commit the crime, and in

other cases, the computer may have been the target of the crime as -

CAUSES

If by “cause”, you mean “motive”, it is mostly profit-based. There’s a lot of


money to be made in these scams. It is also relatively low-risk, and especially
in some foreign countries with weak laws, no risk. There are some activism-
based crime, such as a group taking down a bank website or such.

If by “cause” you mean “how”, I’m afraid I have to engage in a little victim-
blaming. It doesn’t take much to be safe. Patch your equipment regularly,
tighten your access control rules, use good passwords, and operate from the
principle of least privilege. That’ll get you most of the way there. A lot of
companies spend six figures and seven figures on Cyber Security, but fail in
these basic steps and then wonder what went wrong. Cyber Security is a
behavior, not a product.

Do Zero-Day vulnerabilities exist - yes, but you aren’t likely to get hacked by
nation states who spend millions seeking these out - and they are seeking out
specific targets. No, you’re getting hacked by people who don’t even know
who they’re hacking - the best analogy is they’re walking down the street and
see a house a front door and four open windows.

3.1.1 - Computer Viruses:

Computer viruses are computer programs that, when opened, put copies of

themselves into other computers' hard drives without the users' consent.

Creating a computer virus and disseminating it is a cyber crime. The virus may

steal disk space, access personal information, ruin data on the computer or

36
send information out to the other computer user's personal contacts. The most

common way for a virus to infect a computer is by way of an email

attachment. An example would be if you received an email with an

attachment. You open this attachment, and the virus immediately spreads

through your computer system. In some cases, if the virus is opened by a

computer on a system network, such as your place of employment, the virus

can immediately be spread throughout the network without needing to be sent

via email.

There are numerous reasons that a person would create a virus to send out to

another computer or computers. It may be to steal information or money, to

sabotage that system or to demonstrate the flaws that the other computer

system has. In some cases these viruses are able to be removed from the user's

computer system, and in some cases they are not. Therefore, it is easy for us to

understand how these viruses cause significant financial harm every year. The

punishment for those who damage or gain unauthorized access to a protected

computer can be prison time and the repayment of financial losses.

3.1.2 - Cyber stalking

Cyber stalking is the use of the Internet or electronics to stalk or harass an

individual, an organization or a specific group. There are many ways in which

cyber stalking becomes a cyber crime. Cyber stalking can include monitoring

someone's activity realtime, or while on the computer or device in the current

moment, or while they are offline, or not on the computer or electronic device.

Cyber stalking becomes a crime because of the repeated threatening, harassing

or monitoring of someone with whom the stalker has, or no longer has, a

37
relationship. Cyber stalking can include harassment of the victim, the

obtaining of financial information of the victim or threatening the victim in

order to frighten them. An example of cyber stalking would be to put a

recording or monitoring device on a victim's computer or smartphone in order

to save every keystroke they make so that the stalker can obtain information.

Another example would be repeatedly posting derogatory or personal

information about a victim on web pages or social media despite being warned

not to do so. Cyber stalking has the potential punishment of a prison sentence.

3.1.3 - Unauthorized access to computer systems or networks /

Hacking-

This kind of offence is normally referred as hacking in the generic sense.

However the framers of the Information Technology Act, 2000 have no where

used this term so to avoid any confusion we would not interchangeably use the

word hacking for ‘unauthorized access’ as the latter has wide connotation.

3.1.4 - Theft of information contained in electronic form-

This includes information stored in computer hard disks, removable storage

media etc. Theft may be either by appropriating the data physically or by

tampering them through the virtual medium.

3.1.5 - Email bombing-

This kind of activity refers to sending large numbers of mail to the victim,

which may be an individual or a company or even mail servers there by

ultimately resulting into crashing.

38
3.1.6 - Data diddling-

This kind of an attack involves altering raw data just before a computer

processes it and then changing it back after the processing is completed. The

electricity board faced similar problem of data diddling while the department

was being computerised.

3.1.7 - Salami attacks-

This kind of crime is normally prevalent in the financial institutions or for the

purpose of committing financial crimes. An important feature of this type of

offence is that the alteration is so small that it would normally go unnoticed.

E.g. the Ziegler case wherein a logic bomb was introduced in the bank’s

system, which deducted 10 cents from every account and deposited it in a

particular account.

3.1.8 - Denial of Service attack-

The computer of the victim is flooded with more requests than it can handle

which cause it to crash. Distributed Denial of Service (DDoS) attack is also a

type of denial of service attack, in which the offenders are wide in number and

widespread. E.g. Amazon, Yahoo.

3.1.9 - Virus / worm attacks-

Viruses are programs that attach themselves to a computer or a file and then

circulate themselves to other files and to other computers on a network. They

usually affect the data on a computer, either by altering or deleting it. Worms,

unlike viruses do not need the host to attach themselves to. They merely make

39
functional copies of themselves and do this repeatedly till they eat up all the

available space on a computer's memory. E.g. love bug virus, which affected

at least 5 % of the computers of the globe. The losses were accounted to be $

10 million. The world's most famous worm was the Internet worm let loose on

the Internet by Robert Morris sometime in 1988. Almost brought

development of Internet to a complete halt.

3.1.10 - Logic bombs-

These are event dependent programs. This implies that these programs are

created to do something only when a certain event (known as a trigger event)

occurs. E.g. even some viruses may be termed logic bombs because they lie

dormant all through the year and become active only on a particular date (like

the Chernobyl virus).

3.1.11 - Trojan attacks-

This term has its origin in the word ‘Trojan horse’. In software field this

means an unauthorized programme, which passively gains control over

another’s system by representing itself as an authorisedprogramme. The most

common form of installing a Trojan is through e-mail. E.g. a Trojan was

installed in the computer of a lady film director in the U.S. while chatting. The

cyber criminal through the web cam installed in the computer obtained her

nude photographs. He further harassed this lady.

3.1.12 - Internet time thefts-

Normally in these kinds of thefts the Internet surfing hours of the victim are

used up by another person. This is done by gaining access to the login ID and

40
the password. E.g. Colonel Bajwa’s case- the Internet hours were used up by

any other person. This was perhaps one of the first reported cases related to

cyber crime in India. However this case made the police infamous as to their

lack of understanding of the nature of cyber crime.

3.1.13 - Web jacking-

This term is derived from the term hi jacking. In these kinds of offences the

hacker gains access and control over the web site of another. He may even

mutilate or change the information on the site. This may be done for fulfilling

political objectives or for money. E.g. recently the site of MIT (Ministry of

Information Technology) was hacked by the Pakistani hackers and some

obscene matter was placed therein. Further the site of Bombay crime branch

was also web jacked. Another case of web jacking is that of the ‘gold fish’

case. In this case the site was hacked and the information pertaining to gold

fish was changed. Further a ransom of US $ 1 million was demanded as

ransom. Thus web jacking is a process where by control over the site of

another is made backed by some consideration for it.

3.1.14 - Identity Theft-

Identity theft is a form of stealing someone's personal information and

pretending to be that person in order to obtain financial resources or other

benefits in that person's name without their consent. Identity theft is

considered a cyber crime. The personal information stolen can include the

person's name, social security number, birth date or credit card numbers. This

stolen information is then used to obtain new credit cards, access bank

41
accounts or obtain other benefits, such as a driver's license. Identity theft is

completed by using breaches in the victim's browser security or through

spyware, which is software placed unknowingly on a person's computer in

order to obtain information. Identity theft can also be performed by hacking

into computer networks to obtain personal data - sometimes in large amounts.

For example, an individual could get your password and obtain your personal

information that you entered into Amazon.com when you made a purchase in

the past. He could then use your birth date and social security number in order

to apply for a new driver's license in your name with his picture on it! Identity

theft is punishable by a prison sanction.

3.2 –Reasons for Cyber crime:

‘Human beings are vulnerable so rule of law is required to protect

them’8Applying this to the cyberspace we may say that computers are

vulnerable so rule of law is required to protect and safeguard them against

cyber crime. The reasons for the vulnerability of computers may be said to be:

3.2.1 - Capacity to store data in comparatively small space:

The computer has unique characteristic of storing data in a very small space.

This affords to remove or derive information either through physical or virtual

medium makes it much more easier.

3.2.2 - Easy to access:

The problem encountered in guarding a computer system from unauthorised

access is that there is every possibility of breach not due to human error but

8
Hart, The concept of law

42
due to the complex technology. By secretly implanted logic bomb, key loggers

that can steal access codes, advanced voice recorders; retina imagers etc. that

can fool biometric systems and bypass firewalls can be utilized to get past

many a security system.

3.2.3 – Complex-

The computers work on operating systems and these operating systems in turn

are composed of millions of codes. Human mind is fallible and it is not

possible that there might not be a lapse at any stage. The cyber criminals take

advantage of these lacunas and penetrate into the computer system.

3.2.4 - Negligence:

Negligence is very closely connected with human conduct. It is therefore very

probable that while protecting the computer system there might be any

negligence, which in turn provides a cyber criminal to gain access and control

over the computer system.

3.2.5 - Loss of evidence:

Loss of evidence is a very common & obvious problem as all the data are

routinely destroyed. Further collection of data outside the territorial extent also

paralyses this system of crime investigation.

3.3 –Meaning and Definition of Organizedcrime :

“Organised crime includes the unlawful activities of the members of a highly

organised, disciplined association engaged in supplying illegal goods and

services, including but not limited to gambling, prostitution, loan sharking,

43
narcotics, labour racketeering and other unlawful activities of such

associations”.

The core organised crime activity is the supply of illegal goods and services

to countless numbers of citizen customers. It is also deeply involved in

legitimate business and in labour unions. It employs illegitimate methods-

monopolisation, terrorism, extorition and tax-evasion to drive out or control

lawful ownership and leadership, and to extract illegal profits from the public.

Organised crime also corrupts public officials to avert governmental

interference and is becoming increasingly sophisticated. In India, in addition

to its traditional spheres of activities which included extortion, seeking

protection money, contract killing, boot-legging, gambling, prostitution and

smuggling, now added is drug trafficking, illicit arms trading, money

laundering, transporting illegitimate activities based essentially on its

readiness to use brute force and violence. By corrupting public officials and

thereby monopolising or near monopolising, organised crime aims to secure

for itself power. Later, the money and power it begets are used to infiltrate

legitimate business and several other related activities. The recent experience

has shown that it attempts to subvert and corrupt our democratic processes.

Involvement of Bombay based criminal syndicates in the serial bomb blast in

1993, and the contract killings of several important social and political leaders

in Bombay, indicates that organised crime in this part of the country is

emerging as a serious challenge to the State. The destabilising effect that

organised crime has on the country’s economy, trade and commerce can

hardly be over-emphasised. Organised crime continues to grow at a

disconcerting speed as the existing laws and procedures are not powerful

44
enough to help the law enforcement agencies to collect adequate evidence to

bring criminalcharges and try other remedies against organised criminal

syndicates as a whole and thereby incapacitate them from carrying out their

nefarious activities. Since the real strength of organised crime lies in its money

power with which it buys political power, it is imperative to destroy its money

power base. Organised crime is not confined to the boundaries of any one

country and has become a transnational problem. This is evidenced in the

fields of drug trafficking, money-laundering, terrorism, gun-running and

illegal immigration rackets. Moreover, advances in science and technology

enable members of organised criminal groups to operate with high mobility

and sophistication, thereby aggravating the already grim situation.

3.4 –Types of Organized crime:

3.4.1 - Drug Trafficking:

Drug Abuse and Drug Trafficking It is perhaps the most serious organised

crime affecting the country and is truly transnational in character. India is

geographically situated between the countries of Golden Triangle and Golden

Crescent and is a transit point for narcotic drugs produced in these regions to

the West. India also produces a considerable amount of licit opium, part of

which also finds place in the illicit market in different forms. Illicit drug trade

in India centres around five major substances, namely, heroin, hashish, opium,

cannibas and methaqualone. Seizures of cocaine, amphetamine, and LSD are

not unknown but are insignificant and rare. Our borders have traditionally

been most vulnerable to drug trafficking. The Indo-Mynamar border is also

45
quite sensitive but the percentage of seizures is much smaller. Indo-Sri Lanka

border has also started contributing considerably to the drug trade.

The acquittals mainly result due to nonobservance of statutory and procedural

safeguards viz, the enforcement officer failing to volunteer himself for

personal search before conducting the personal or house search of the accused

or failure in offering to have the accused searched by a gazetted officer or a

Magistrate. It is being contemplated to amend the Act to plug the procedural

loopholes and to calibrate punishments by grouping the offences. Investigative

skills need to be honed and trials expedited. Inter-agency exchange of

information amongst the countries by the quickest possible means, coupled

with expeditious extradition proceedings, would prove helpful in curbing the

drug meance.India signed bilateral agreements with USA, UK, Myanmar,

Afghanistan, UAE, Mauritius, Zambia, and the Russian Federation for ‘drug

control’.

3.4.2 - Smuggling:

Smuggling, which consists of clandenstine operations leading to unrecorded

trade, is another major economic offence. The volume of smuggling depends

on the nature of fiscal policies pursued by the Government. The nature of

smuggled items and the quantum thereof is also determined by the prevailing

fiscal policies.

India has a vast coast line of about 7,500 kms and open borders with Nepal

and Bhutan and is prone to large scale smuggling of contraband and other

consumable items. Though it is not possible to quantify the value of

contraband goods smuggled into this country, it is possible to have some idea

46
of the extent of smuggling from the value of contraband seized, even though

they may constitute a very small proportion of the actual smuggling. The high

point of smuggling was in 1990 when contrabands worth Rs. 760 crores were

seized. Introduction of various liberalisation measures, such as the gold and

silver import policies in 1992-93, have had their impact on customs sezure.9

3.4.3 - Money Laundering &Hawala:

In India the annual income generated from illicit drug trade, one of the biggest

criminal enterprises, is very high. Transportation and distribution of drugs to

affluent European and North American markets using the border States as

transit point facilitate black money generation, which is not only an economic

phenomenon; but having political, social and historical dimensions too. The

unholy nexus between politicians and bureaucrats on the one hand and the

business men on the other, fuels black economy in India1. The main source of

black money is the illicit drug trade which has spawned large money

laundering networks as a drain on the nation’s economy.

Money laundering means conversion of illegal and ill-gotten money into

seemingly legal money so that it can be integrated into the legitimate

economy. Proceeds of drug related crimes are an important source of money

laundering world over. Besides, tax evasion and violation of exchange

regulations play an important role in merging this ill-gotten money with tax

evaded income so as to obscure its origin. This aim is generally achieved via

the intricate steps of placement, layering and integration so that the money so

integrated in the legitimate economy can be freely used by the offenders

9
Material series no 54

47
without any fear of detection. Money laundering poses a serious threat world

over, not only to the only to the criminal justice systems of the countries but

also to their sovereignty. The United National Convention against Illicit

Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988,10 to which

India is a party, calls for criminalisation of laundering of the proceeds of drug

crimes and other connected activities, and the confiscation of proceeds derived

from such offences. There is no knowing how much.

Money is laundered in India but the problem is quite serious. The tainted

money is being accumulated and integrated into the economy by organised

racketeers, smugglers, economic offenders and antisocial elements and is

adversely affecting the internal security of the country. In order to curb the

meance of money laundering, the Central Government is in the process of

enacting the Proceeds of Crime and Money Laundering (Prevention) Act,

1997. In the proposed Act, money laundering has been defined as: (i) engaging

directly or in-directly in a transaction which involves property that is the

proceed of crime; or (ii)receiving, possessing, concealing, transferring,

converting, disposing of within the territories of India, removing from or

bringing into the territory of India the property i.e proceeds of crime. ‘Crime’,

as defined in the Act, covers, several Penal Code offences viz., waging war

against the Government of India, murder, attempted murder, voluntarily

causing hurt, kidnapping for ransom, extortion, robbery, dacoity, criminal

breach of trust, cheating, forgery, counterfeiting currency etc; certain

provisions of the Prevention of Corruption Act, 1988; NDPS Act, 1985;

Foreign Exchange Regulation Act, 1973 and the Customs Act,1962. Thus,

10
Vienna convention

48
‘crime’ has been defined comprehensively in the Act. The money generated

through ‘crime’ is liable to be confiscated by the State. Illegal currency

transfers via nonbanking channels are called Hawala. It is an underground

banking system. Secret flows of money can take place in free currency areas

as well as in areas where currency conversion restrictions are practised due to

the shortage of foreign exchange. It operates in the following manner.

Someone in the USA, for example, deposits $1000 with an under-ground

banker for payment to be made in India. The US under-ground banker contacts

their counter part in India immediately on the telephone or by wire service and

sends a coded message for payment to the Indian recipient. The hawala

operator in India would contact the recipient and fix a meeting place. The

recipient, in the meanwhile, would have received instructions on the telephone

about the code word s/he has to exchange with the hawala operator. Thus, the

hawala operator in India and the recipient of the money would exchange code

words and the hawala operators would hand over the money to the recipient.

Of course, the hawala operator in USA would charge a fee for the service

rendered. There is no physical transfer of money in hawala operations as in the

regular banking channels. This channel is generally used by drug traffickers,

smugglers and kidnappers. Basically, the system operates on an ethnic

network. The network may include more than 3 or 4 countries. The principal

operators engage agents and sub agents in various countries for collection and

disbursement of money. Families who have members earning abroad are

clients of the system. The dangerous aspect of the hawala system is the nexus

between hawala and illicit arms smugling, drug trafficking and terrorist

crimes. Investigations in hawala related crimes are conducted under the

49
Foreign Exchange Regulation Act. Even through the word ‘hawala’ has not

been defined in FERA, the essence of the Act is that any person who retains

foreign exchange abroad or sends foreign exchange abroad, without the

Reserve Bank’s permission is violating FERA provisions.

3.4.4 - Terrorism&Narco-Terrorism:

Terrorism is a serious problem which India is facing. Conceptually, terrorism

does not fall in the category of organised crime, as the dominant motive

behind terrorism is political and/or ideological and not the acquisition of

money-power. The Indian experience, however, shows that the criminals are

perpetrating all kinds of crimes, such as killings, rapes, kidnappings, gun-

running and drug trafficking, under the umbrella of terrorist organisations. The

existing criminal networks are being utilised by the terrorist leaders. India

faced serious problems in the Punjab in the 1980s, which has since been

controlled with the installation of a popular government. The North East still

continues to be in turmoil due to the unlawful activities of ULFA and NSCN.

The terrorist groups there are partly financing their operations by kidnappings

for ransom of tea garden executives and extortion from businessmen. PWG

and LTTE, in small pockets of southern India, continue to indulge in continual

acts of violence.

In view of threat to the national security, the Central Government, enacted an

antiterrorist law, Terrorist and Disruptive Activities (Prevention) Act, 1985.

About 60,000 terrorists were charged under this Act. However, the trials were

slow and the conviction rate quite low. This Act was allowed to lapse in 1995.

India at present does not have any anti-terrorist law. India has become

50
vulnerable to narco terrorism, bounded as it is by the ‘Golden Crescent’ on the

West and the ‘Golden Triangle’ on the East. Narco terrorism assumes several

forms, namely:

(a) Terrorists themselves indulge in drug trafficking to support their

movements ;

(b) Sympathizers of terrorists living abroad indulge in drug trafficking and

send part of their illegal profits to fund the terrorist movements ;

(c) Terrorists join hands with drug lords to gain access to the powers, in the

countries sympathetic to their cause, in order to utilise their connections with

political powers ;

(d) Terrorists give protection and support to drug traffickers with fire arms,

and the drug traffickers, being acquainted with the routes, assist the terrorists

in border crossings to bring arms and drugs in the target country; and

(e) Smugglers supply fire arms to the terrorists who are also drug traffickers.

The areas affected by terrorism in India are the border States which also

happen to be transit roues for narcotics to their destinations in the Western

world. It is not a concidence that the growth of terrorist movement in Punjab

synchronised with the emergence of the Golden Crescent as a major drug

producing area in the early 1980s. The emergence of drug mafias in the

Golden Crescent countries and their linkages with smugglers in the border

States of India have given impetus to gun running. There is positive evidence

of narco-terrorism in the border States of India even though the magnitude

there of is not significant. Some mixed consignments of narcotic drugs and

51
arms were seized from smugglers in the Punjab. There is also evidence that the

money generated abroad by the smugglers was used for purchase of weapons

which were smuggled into the country for terrorist activities. To illustrate,

Dawood Ibrahim, utilised the existing smuggling network in landing

consignments of arms and explosives on the western coast in early 1993, used

for causing serial blasts in Bombay.

3.4.5 - Light Arms Proliferation & Trafficking:

Light arms proliferation is a global phenomena. It has extracted a heavy toll

in terms of human lives and socio economic development of entire regions,

costs of which can never be adequately computed. In Afghanistan, the death

toll has passed 1,00,000 and is still rising, while Cambodia, Sri Lanka and

some African States continue to see conflict related deaths in their thousands.

India has also suffereddue to trafficking in illicit arms. The twin phenomenon

of rising crime as well as armed conflicts and terrorism are directly linked to

the global proliferation and movement of weapons .On 17th December, 1996,

an Antonov 26 aircraft dropped over 300 AK 47/56 rifles and 20,545 rounds

of ammunition, dragnovsnipper weapons, rocket launchers and night vision

devices in a Purulia village in West Bengal State. The aircraft was bought

from Latvia for US$ 2 million and chartered by a Hong Kong registered

company, Carol Airlines. Payments were made mostly through foreign bank

accounts. The aircraft was ferried to a foreign country where it was registered.

After a dry run over the air drop area, the aircraft moved to Bulgaria from

where the consignment of arms was picked up using a end-users certificate

issued by a foreign country. The aircraft returned to a location in a foreign

52
country and then flew over the air drop area,11parashuting the arms and then

flew on to Phuket. On the return journey, the aircraft was forced to land at

Bombay, where the crew were arrested. CBI investigated this case and 7

persons were charged, including one British, 5 Latvians and an Indian. Several

others absconded. The seizures reflect only the tip of the iceberg. Similar

caches have been seized in Punjab and the North East. Gun running in foreign-

made and Indian made weapons is a lucrative business, in militancy affected

and high crime areas. The premium on foreign made weapons is quite high,

and relevant laws need to be made more stringent and speedy trials ensured.

3.4.6 - Contract Killings:

The offence of murder is punishable under section 302 IPC by life

imprisonment or death sentence. Conviction rate in murder cases is about

38%. The chance of detection in contract kilings is quite low. The method

adopted in contract killings is by engaging a professional gang for a monetary

consideration. Part of the prefixed amount will be paid in advance which is

called ‘supari’. The rest of the payment will be made after the commission of

the crime. The Bombay gangs specialize in contract killings. The amount they

charge is quite large and varies with the socioeconomic status of the targets.

Dawood Ibrahim gang has been responsible for contract killings of several

rich businessmen, industrialists and politicians. Gulshan Kumar, the music

magnate of Bombay, was the latest victim of this scourge.

3.4.7 - Kidnapping for Ransom:

11
Profile of violence in Punjab 1981-92

53
Kidnapping for ransom is a highly organized crime in urban conglomerates.

There are several local as well as inter state gangs involved in it as the

financial rewards are immense vis-a-vis the labour and risk involved.

Generally, no injury is caused to the kidnapee if the Kidnappers’ conditions

are met. Terrorist gangs have also been occasionally involved in kidnappings

for quick money to finance their operations. In one recent case, the kidnapee

was killed even after his family paid a huge ransom amount to a U.P. gang.

The leader of the gang was known to the victim and he feared the victim

would disclose the gang’s identity if released. Several arrests have been made

in this case. Incidentally, the leader of the gang is a Member of the Legislative

Assembly of the State of North India. Delhi and Bombay are highly vulnerable

to this crime. The going rate in Delhi and Mumbai ranges from Rs. 1.00 to

5.00 crores, depending upon the paying capacity of the victims. In view of the

aforesaid menace, a new section12 was incorporated in the Penal Code to

specifically criminalized kidnapping for ransom and prescribes a minimum

punishment of 10 years.

3.4.8 - Illegal Immigration:

A large number of Indians are working abroad, particularly in the Gulf region.

Young people want to move to foreign countries for lucrative jobs. Large scale

migration is fostered by the high rate of unemployment in the country and

higher wage levels in foreign lands. As it is not easy for the aspirants to obtain

valid travel documents and jobs abroad, they fall into the trap of unscrupulous

12
Section 364-A of IPC,1860

54
travel agents and employment agencies. These agencies promise to give them

valid travel documents and employment abroad on the payment of huge

amounts. Often the travel documents are not valid,13 and sometimes they are

simply dumped into foreign lands without giving them the promised

employment. A gruesome tragedy occurred in which 170 Indians and some

others drowned in the high seas of the Malta-Sicily channel on 24th and 25th

December, 1996. Investigation of this case was handled by the CBI which

disclosed that the travel agents in India sent some groups of Indians to

Alexandria (Egypt) and Istanbul (Turkey) by air in September 1996.

Thereafter, they were taken in small ships to the high seas from Alexandria

and Istanbul and were transferred to a big ship. There were about 460 people

from India, and other countries on board. The ship headed towards Italy. In the

Malta Sicily channel, they were required to shift to two smaller ships. While

docking, the two ships collided and water started pouring into the small ship

which created panic. There was rush to get back to the big ship and in the

process 200 people, including 170 Indians drowned. Country-wide

investigation was conducted by the CBI and 25 travel agents were charged

with violation of the Emigration Act, 1983. Emigration of Indians to foreign

countries is regulated by the Emigration Act 1983, which empowers the

Central Government to regulate functioning of the travel agents and

employment agencies. The employment agencies are also required to give

written undertakings regarding minimum wages and surety of employment to

the emigrants. The loop holes in the system are, however, exploited by the

unscrupulous elements by false representations and fraudulent deals. It is a

13
108th ISVE Papers

55
transnational crime and involves unfathomable exploitation and human

misery. International co-operation may pay a vital role in curbing illegal

migrations.

3.4.9 - Prostitution:

Trading in sex and girl-running is a very profitable business in which the

underworld plays an important part. Flesh trade has been flourishing in India

in various places and in different forms. The underworld is closely connected

with brothels and call girl rackets, making plenty of money through this

activity. They supply young girls to brothels in different parts of the country,

shuttling them to and from the city to minimise the risk of their being rescued.

According to a study conducted by the Indian Health Organisation, there are

over 1,000,000 prostitutes in Mumbai and an equal number in Calcutta. Delhi

and Pune have an estimated 40,000 each. Even the relatively small town of

Nagpur has about 15,000 prostitutes. The total number of prostitutes in the

country is about 25,000,00014. About 300,000 enter the profession each year .

There is also evidence to show that it is a transnational crime. About 5,000

girls from Nepal enter the flesh market each year in India. Prostitution is not

an offence in India. However, running brothels, inducing girls for the sake of

prostitution, detaining girls in brothels or running brothels in the vicinity of

public places is a criminal offence. There is evidence of underworld networks

running the brothels and the existing law has not been found strong enough to

tackle the menace.

14
By Patitaudharsamiti

56
ECONOMIC CRIME IN INDIA:

LEGISLATIVE MEASURES TO DEAL WITH ECONOMIC CRIMES IN


INDIA

Economic Offences form a separate category of criminal offences. Economic


Offences not only victimize individuals with pecuniary loss but can also have
serious repercussions on the national economy. Economic offences, such as
counterfeiting of currency, financial scams, fraud, money laundering, etc. are
crimes which evoke serious concern and impact on the Nation’s security and
governance. This paper seeks to present a perspective on the trend of
economic crimes and legislative measures to deal with such crimes in India.
The paper is divided into four sections. The first section gives an overview of
economic crimes and relevant legislation and the enforcing agency in India.
The second section deals with economic crimes covered under the Indian
Penal Code. The third section explains the law on money laundering and the
fourth section focuses upon cyber crimes, which is expanding rapidly with the
growing use of the Internet.

ECONOMIC CRIMES: AN OVERVIEW

A table listing various economic offences, the relevant legislation and the
enforcing authorities in India is given below:

S.No Economic Crimes Acts of Legislation Enforcement


Acuthorities
1 Tax Evasion Income Tax Act Central Board of
Direct Taxes
2 Illicit Trafficking in Customs Act 1962 Collectors of
Contraband Goods COFEPOSA, 1974 Customs
(Smuggling)
3 Evasionof Excise Duty Central Excise and Collectors of
Salt Act, 1944 Central Excise
4 Cultural Object's Theft Antiquity and Art Directorate of
Treasures Act, 1973 Enforcement

57
5 Foreign Contibution Foreign Contribution Police/CBI
Manipulations (Regulation) Act,
1976
6 Land Hijacking/REal IPC Police/CBI
Estate Fraud
7 Illicit Drug Trafficking Narcotics Drugs and NCB/Police/CBI
Psychotropic
8 Fraudulent Bankruptcy Banking Regulation CBI
Act, 1949
9 Corruption and Bribery Prevention of State/Anti
of Public Servants Corruption act, 1988 Corruption
Bureaux/Vigilanc
e Bureaux/CBI
10 Bank Fraud IPC Police /CBI
11 Insurance Fraud IPC Police /CBI
Racketeering in IPC Police /CBI
Employment
12 Illegal Foregin Trade Improt & Export Directorage
(Control) Act, 1947 General Foreign
Trade/CBI
13 Racketeering in False Passport Act, Police /CBI
Travel Documents 1920/IPC

15
N.V. Paranjpey: Crimnology, Penology and Victamology 2017

3.5.1 TYPES OF ECONOMICS CRIMES

Financial crime is crime committed against property, involving the


unlawful conversion of the ownership of property (belonging to one person) to
one's own personal use and benefit. Financial crimes may
involve fraud (cheque fraud, credit card fraud, mortgage fraud, medical fraud,
corporate fraud, securities fraud (including insider trading), bank
fraud, insurance fraud, market manipulation, payment (point of sale)
fraud, health care fraud); theft; scams or confidence tricks; tax

58
evasion; bribery; embezzlement; identity theft; money laundering;
and forgery and counterfeiting, including the production of Counterfeit
money and consumer goods.

Financial crimes may involve additional criminal acts, such as computer


crime, elder abuse, burglary, armed robbery, and even violent crime such
as robbery or murder. Financial crimes may be carried out by
individuals, corporations, or by organized crime groups. Victims may include
individuals, corporations, governments, and entire economies.

3.5.2 MONEY LAUNDERING

For most countries, money laundering and terrorist financing raise significant
issues with regard to prevention, detection and prosecution. Sophisticated
techniques used to launder money and finance terrorism add to the complexity
of these issues. Such sophisticated techniques may involve different types of
financial institutions; multiple financial transactions; the use of intermediaries,
such as financial advisers, accountants, shell corporations and other service
providers; transfers to, through, and from different countries; and the use of
different financial instruments and other kinds of value-storing assets. Money
laundering is, however, a fundamentally simple concept. It is the process by
which proceeds from a criminal activity are disguised to conceal their true
origin. Basically, money laundering involves the proceeds of criminally
derived property rather than the property itself. Money laundering can be
defined in a number of ways, most countries subscribe to the definition
adopted by the United Nations Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances (1988) (Vienna Convention) and
the United Nations Convention Against Transnational Organized
Crime (2000) (Palermo Convention):

i. The conversion or transfer of property, knowing that such property is


derived from any (drug trafficking) offense or offenses or from an act of
participation in such offense or offenses, for the purpose of concealing or
disguising the illicit origin of the property or of assisting any person who is
involved in the commission of such an offense or offenses to evade the legal
consequences of his actions;

59
ii. The concealment or disguise of the true nature, source, location, disposition,
movement, rights with respect to, or ownership of property, knowing that such
property is derived from an offense or offenses or from an act of participation
in such an offense or offenses, and;

iii. The acquisition, possession or use of property, knowing at the time of


receipt that such property was derived from an offense or offenses or from an
act of Participation in such offense or offenses.

The Financial Action Task Force on Money Laundering (FATF), which is


recognized as the international standard setter for Anti-money Laundering
(AML) efforts, defines the term "money laundering" briefly as "the processing
of criminal proceeds to disguise their illegal origin" in order to "legitimize" the
ill-gotten gains of crime.

In 2005, money laundering within the financial industry in the UK was


believed to amount to £25bn a year.

60
CHAPTER 4

SYSTEM OF CRIME
INVESTIGATION IN INDIA AND
INVESTIGATING AGENCIES

61
CHAPTER 4

SYSTEM OF CRIME INVESTIGATION IN INDIA AND

INVESTIGATING AGENCIES

The word investigating agencies can be used as a synonym for the word

Police‘ as it is the general duty of police to investigate any crime happening on

the scene. Other agencies responsible for investigation and prosecution can be

termed as Special Investigating Agencies‘, as they are someone whose

authority is limited to the special undertaking they have been instructed to

perform. The persons whose job is to investigate under such special

circumstances are known as Special Agents or Special Investigating Officers‘

as they are ones who act for a principle only for a particular purpose. In this

case the special investigator‘s act for the Central Government‘ for special

circumstances.

Major Investigating Agencies in India

Meaning & Definition of Investigation

Section 2 (h) of the CRPC reads as under:


2.(h) “investigation” includes all the proceedings under this Code for the
collection of evidence conducted by a police officer or by any person (other
than a Magistrate) who is authorised by a Magistrate in this behalf;
Section 2(h) CrPC defines “investigation” and it includes all the proceedings
under the Code for the collection of evidence conducted by a police officer or
by any person (other than a Magistrate) who is authorised by a Magistrate in
this behalf. It ends with the formation of the opinion as to whether on the
material collected, there is a case to place the accused before a Magistrate for
trial and if so, taking the necessary steps for the same by filing of a charge-

62
sheet under Section 173. Union of India v. Prakash P. Hinduja .
A three Judge Bench in H.N. Rishbud v. State of Delhi , while dealing with
investigation, has stated that under the Code, investigation consists generally
of the following steps:
(a) Proceeding to the spot,
(b) Ascertainment of the facts and circumstances of the case,
(c) Discovery and arrest of the suspected offender,
(d) Collection of evidence relating to the commission of the offence which
may consist of:
(i) The examination of various persons (including the accused) and the
reduction of their statements into writing, if the officer thinks fit,
(ii) The search of places or seizure of things considered necessary for the
investigation and to be produced at the trial, and
(e) Formation of the opinion as to whether on the material collected there is a
case to place the accused before a Magistrate for trial and if so taking the
necessary steps for the same by the filing of a chargesheet under Section 173.
In Adri Dharan Das v. State of W.B. , it has been opined that:
“arrest is a part of the process of investigation intended to secure several
purposes. The accused may have to be questioned in detail regarding various
facets of motive, preparation, commission and aftermath of the crime and
connection of other persons, if any, in the crime.”
In Niranjan Singh v. State of U.P. , it has been laid down that investigation is
not an inquiry or trial before the Court and that is why the Legislature did not
contemplate any irregularity in investigation as of sufficient importance to
vitiate or otherwise form any infirmity in the inquiry or trial. In S.N.Sharma v.
Bipen Kumar Tiwari , it has been observed that the power of police to
investigate is independent of any control by the Magistrate. In State of Bihar
v. J.A.C. Saldanha , it has been observed that there is a clear cut and well
demarcated sphere of activity in the field of crime detection and crime
punishment and further investigation of an offence is the field exclusively
reserved for the executive in the Police Department. Manubhai Ratilal Patel v.
State of Gujarat and Others,(2013) 1 SCC 314.15

15
Mowu v. Suptd., Special Jail, 1972 SCC (Cri) 184, 189:(1971) 3 SCC 936

63
Further Investigation The mere undertaking of a further investigation either by
the investigating officer on his own or upon the directions of the superior
police officer or pursuant to a direction by the Magistrate concerned to whom
the report is forwarded does not mean that the report submitted under Section
173 (2) is abandoned or rejected. It is only that either the investigating agency
or the court concerned is not completely satisfied with the material collected
by the investigating agency and is of the opinion that possibly some more
material is required to be collected in order to sustain the allegations of the
commission of the offence indicated in the report. Vipul Shital Prasad
Agarwal v. State of Gujarat and another, (2013) 1 SCC 197.

4.1.1 - Central Investigation and Intelligence Agencies-

 Central Bureau of Investigation

 National Investigating Agency

 Central Vigilance Commission

 National Central Bureau (Interpol) New Delhi.

 Narcotics Control Bureau

 Indian Income Tax Department (Investigation)

 Directorate of Revenue Intelligence

 Research and Analysis Wing

 Enforcement Directorate

4.1.2 - Special Investigating Agencies

 CBI

 NIA

 National Central Bureau (Interpol) New Delhi

 Research and Analysis Wing (RAW)

64
 Directorate of income Tax (Investigation)

4.3 - Kinds of Investigation-

Investigation is a process of conducting research, discovery, study,

observation into any matter to find facts. It helps people in gathering vital

information required for specific purpose.

Investigations are a very important part of law enforcement. They are very

helpful in curbing crime which is mushrooming at the speed of light. In order

to make the society evil free and a place where the society can reside without

the fear of any criminal activities, we need to make the investigation process

effective and a complete success.

There are many kinds of investigations that become a part of the routine of an

investigator. The first and the foremost are the Criminal Investigations

beganing of the Criminal investigation is unknown, but there is reason to

believe that it came into existence in a very rudimentary form with the origin

of legal trials. Law has vested ample powers to the investigating agencies to

carryout the investigations. Under the Chapter XII of the Criminal Procedure

Code54, the police has a statutory right to carry on an investigation. Further

the functions of the police and the Judiciary are complimentary, and the

combination of individual liberty with a due observation of law and order is

only to be obtained by leaving each to exercise its own function. The policy of

non-interference in the investigation was well explained by the Primary

Council in King Emperor Vs. KhawajaNazirAhmad in the following

terminology:

65
Just as it is essential that everyone accused of crime should have free access to

the court of Justice, so that he may be duly acquitted, if found not guilty of the

offence of which he is charged, so it is of utmost importance that the Judiciary

should not interfere with the police in matters which are within their province

and into which law imposes on them the duty of inquiry.On realizing the

difficulties of the investigation agencies, the Law Commission in its report

observed:

―A report under section 173 of the Criminal Procedure Code (Cr.P.C.), is

normally the end of an investigation, Sometimes, however the police officer

after submitting the report, comes upon evidence bearing on the guilt or

innocence of the accused. We should heave thought that police officer can

collect that evidence and send it, to the Magistrate concerned. It appears that

the courts have sometimes taken narrow view that, once a final report has been

submitted the police cannot touch the case again and reopen the investigation.

The Criminal Investigation is aims at looking for the techniques used by the

criminals to commit a crime besides the grounds and the reasons. It also

involves confirming the right criminals and victims through exploring and

interrogating the witnesses. By using various methods it is ensured that correct

identification of a criminal is made who has committed an offence. The skilled

and professional criminals have a tendency to follow a definite technique,

committing the offence at certain types of place with specific style leaving

behind a certain trademark. In such cases, the criminal investigation

departments work on the basis of the accumulated data, and have ready access

to such public records. Information flows in to the Investigating Agencies

more or less continuously.

66
Interrogation of suspects is one of the most important functions of Criminal

Investigation. Investigators work either for the victim or for the defendant or

his attorney in criminal proceedings. Serious crimes, which may lead to arrest

and conviction of a subject are the sources of cases for the legal/criminal

investigator.16Investigations, here are related to different crimes. If an illegal

action takes place, like murder, robbery, dacoit, homicide etc. then the police

and legal investigators come in to action to find the facts behind the crime and

to nab the criminals. Investigations in such cases goes on till the case is solved

and the offender is caught and punished.

4.3.1 -Criminal investingations:

Criminal investigations is defined by a group of scholars as looking into police

work, as the collection of information and evidence for identifying,

apprehending and convicting suspected offenders.

A criminal investigation is the reconstruction of a past event. It is an official

effort to uncover information about a crime. There are generally three ways

that a person can be brought to justice for a criminal act. The first way, which

is probably the least likely, is that the individual confesses to his criminal act.

Second, the officer of law can catch him in the act and the third way i.e. the

last is the most common way i.e. a criminal investigation can identify him as a

suspect, after which he may confess or be convicted by trial.

In most cases, when a crime is committed, the officials have two primary

concerns. One is, they want to know who committed the crime and the other is

16
Indian Law Commission (41th report)

67
what the motive was. The reason why a person breaks a law is called the

motive.

It is not a must that the motive comes after identifying the perpetrator in a

criminal investigation. Sometimes the motive is suspected or known and used

to catch the criminal. This often happens in the crimes such as kidnapping and

murders. Notes or other forms of evidence may be left that reveal why the

crime has been committed. Criminal investigations are usually conducted by

the police. There are other official agencies that have the authority to

investigate and launch criminal charges. In India C.B.I., i.e. Central Bureau of

Investigation is the main agency for doing criminal investigations. While in

U.S.A. it is the Federal Bureau of investigation, i.e. F.B.I. and the Internal

Revenue Service (I.R.S.). Police and other officials may use a variety of

methods to conduct criminal investigations. Various scientific techniques such

as fingerprint and ballistics analysis are often used.

In U.S.A., sometimes the method of employing informants is used, which is

quite a controversial investigation method. Many people disagree with this

practice because these individuals are generally criminals who are looking to

get out of trouble or to reduce their punishment. It is therefore argued that they

can be influenced to say or do whatever will please those investigating the

case.

There are some parts of a criminal investigation that police may not be able to

handle. It is because some cases require investigation techniques that demand

specialized knowledge or training that the investigators may not have. This

means that the police may have to employ others to help them. This is

68
especially true with deoxyribonucleic acid (DNA) testing. Although this

technique is popular, it is often performed by third parties. A criminal

investigation does not always yield results. Sometimes suspects are accused

only for it to be determined later that they are not guilty. At other times, an

extensive criminal investigation may not produce any suspects. This can mean

that no one will be punished for the crime that was committed.

4.3.2 - Civil Investigations-

These type of investigations involve law suits in which questions of money or

property are to be settled. Violations of law are usually not included. A civil

investigation is an investigation related to a civil matter. A civil matter is a

court action (or pending court action) that is not criminal in nature. Let me cite

an example for this. An investigation related to the care of a child is a civil

investigation if the opposing parent is trying to prove that their ex-spouse is

not taking good care of the child.

A civil investigation helps uncover and assemble the information needed for a

civil trial. A civil trial is the opposite of a criminal trial. In most cases, this

type of court case involves two individuals who are arguing about an issue that

relates to their rights as citizens.17 A civil investigation can help, gather the

evidence that is essential to such a trial. A civil investigation usually begins

with an analysis.

4.3.3 - Marital investigations-

 Workers compensation investigations

17
Feliciya Dye, Criminal Investigation

69
 Personal injury investigations

 abuse investigations

 Back ground Domestic checks.

4.3.4 - Background Investigation-

It is a kind of civil investigation. It depends on the level of the background.

Back Ground investigation can consist of looking into somebody‘s credit to

see if they are the kind of person that is irresponsible, their driving record, to

criminal history, if they have been arrested or been prosecuted for crimes. The

goal is to find the truth. Any person who is interested or been prosecuted for

crimes. The goal is to find the truth. Any person who is interested in the other

person, with whom he wants any kind of investment can go for such

background investigation. It splits the chaff from the grains i.e. takes out the

real truth of the person being investigated.

4.3.5 - Undercover Investigation-

This is an important form of investigation. An undercover investigation is

specifically to inject yourself into the particular entity you are investigating.

An undercover investigation is conducted by injecting yourself into that

situation. The goal of an undercover investigation is to gather information as

truthfully as possible. Observation is a critical technique used in undercover

investigation. The key thing is that you have to observe the situation without

others knowing that you are investigating. This is called Subrosa Investigation.

A subrosa is an old Latin term meaning ―under the nose.

70
CHAPTER 5

PROBLEMS AND
DIFFICULTIES IN
INVESTIGATION OF
PROFESSIONAL
CRIMES

71
CHAPTER 5

PROBLEMS AND DIFFICULTIES IN INVESTIGATION OF


PROFESSIONAL CRIMES

Law enforcement officers are in our country‘s front line in the fight against

crime and they perform a difficult and dangerous job with skill and dedication,

but the nation‘s law enforcement officers constantly face extraordinary new

challenges with limited resources. With the passage of time serious problems

in law enforcement began to surface.18

In India, today a dual system of criminal justice has grown up- the one of law

the other of politics.Law enforcement officers, throughout India have grown

into the habit of appealing to political figures for remission from the sanctions

of law.

David Bayley also observed that the rule of law in modern India, the frame

upon which justice hangs, has been undermined by the rule of politics.

Supervision in the name of democracy has eroded the foundations upon which

impartiality depends in a Criminal Justice System19.

India has a federal system, established by the constitution and this poses as

another problem for law enforcement. Since public order and police are State

subjects but when the police poses as a failure, this issue is raised in the

parliament. There are variations between the centre and state Government

Judgements. As a result the enforcement officers find it difficult to satisfy both

of them.

18
Prof. David Bayley
19
Balvindar Singh, Cyber Crime : A New
Challenge For The Police

72
With the passage of time, there is escalation of crime and lawlessness. Main

objective of effective law enforcement is to maintain peace and tranquility in

the country so that people can pursue their vocations without having any fear

of crime and lawlessness. With the passing of every decade, there is steady

increase of crime. After war, crime is the biggest threat in modern societies.

Another very serious threat on the efficiency of law enforcement agencies is

the non-registration of cases. It has a very negative impact on law

enforcement. This malpractice of non-registration arises from several factors,

including the extraneous influences and corruption that operate in the system,

besides the disinclination of the staff to take on additional load of

investigational work in the midst of heavy pressure of several other duties.20

Among all such factors the most important one which, in our view, accounts

for a substantial volume of crime going unregistered, is the anxiety of the

political executive in the State Govt. to keep the recorded crime figures low so

as to claim before the State Legislatures, the public and the press that crime is

well controlled and is even going down as a result of efficient‘ police

administration under their charge. The Chiefs of Police and other senior police

officers also find it easy and convenient to toe the line of the Govt. in

developing such a statistical approach for assessing the crime situation and

evaluating police performance. As a consequence, this attitude permeates the

entire hierarchy down the line and is reflected at the police stations in their

reluctance and refusal to register cases as and when crimes are brought to their

notice.

20
4th Report, National Police Commission

73
In a survey of police society relationship, it was revealed that from the

starting of lodging a complaint in the police station, one has to take the help of

a political person without which no complaint would be registered. This

survey makes it clear that how badly our enforcement officers are caught in

the web of political people and other influential persons, thus making the

conditions of working of law enforcement officers more than pathetic.

Another hindrance for effective law enforcement is over proliferation of laws.

There are a vast number of old and outdated laws, cultured in our statute

books. Even after committing a heinous crime a criminal is allowed to move

out of prisons on paying a very nominal fees, thus the feeling of deterrence is

totally missing in criminals. Enforcement agencies officers puts his day and

night in order to curb crime and criminals, but to no avail. This hard work is

eroded away when he sees the same criminal out of the bars after paying a

nominal sum of rupees. It lowers down the morale of the enforcement officers,

thus also lowering the efficiency of investigation agencies.

Enforcing law is not just the job of a law enforcement agency but it is a whole

way of a total commitment. We need to understand that policing is not an

easy job, it requires a lot of sacrifices as well as going out of way many a

times to perform ones duty. Even if the enforcement officers try to change

laws or the way things are done, they have to face the consequence of

confronting the institutions which have made those laws. Doing the job of an

enforcement officer is a challenging and sometimes a dangerous choice.

Maintaining law and order is not catwalk as it requires 24x7 commitment and

readiness from the officers.

74
5.1 - Problems and Challenges

The Committee has interacted with a cross-section of the police officers at all

levels and in different States. The police officers have mentioned the

following difficulties before the Committee in ensuring speedy, effective and

fair investigation:

a. Excessive workload due to inadequacy of manpower and long working

hours even on holidays and the absence of shift system;

b. Non co-operative attitude of the public at large;

c. Inadequacy of logistical and forensic back up support;

d. Inadequacy of trained investigating personnel;

e. Inadequacy of the state-of-the-art training facilities in investigation,

particularly in- service training;

f. Lack of coordination with other sub-system of the Criminal Justice System

in crime prevention, control and search for truth;

g. Distrust of the laws and courts,

h. Lack of laws to deal effectively the emerging areas of crime such as

organised crime, money laundering etc.

i. Misuse of bail and anticipatory bail provisions;

j. Directing police for other tasks which are not a part of police functions;

k. Interrupting investigation work by being withdrawn for law and order duties

in the midst of investigation.

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l. Political and executive interference;

m. Existing preventive laws being totally ineffective in curbing criminal

tendencies of hardened criminals and recidivists.

5.1.1 - Technical challenges:

These are technology related challenges which are faced by the law

enforcement agencies. Where a hacker disrupts a traffic control at a local

airport or a child pornographer sends computer files over the internet or when

credit card numbers are stolen from a company engaged in e-commerce,

investigators must locate the source of communication They have to trace the

electronic trail‖ leading from the victim to the perpetrator in almost every case.

To succeed in identifying and tracing global communications, investigators

have to work across border, not only with one‘s counterpart but also with

industry to preserve critical evidence such as log files, emails etc. before it is

altered or deleted. Besides, while less sophisticated cyber criminals may leave

electronic ―finger prints, more experienced criminals know how to conceal

their tracks in cyber space. Internet telephony, strong encryption and wireless

and satellite communication and other technological advances have made it

possible for international criminals and terrorist to target victims in

unprecedented ways. One of the problems/challenges faced by enforcement

agencies is the cyber crime.21

The use of computers has grown exponentially during the last few years.

Financially networks, communication systems, power stations, depend on

computers. It is therefore not surprising that computer technology is involved


21
VivekSood, Cyber Crime,Electronic Evidence And Investigation

76
in a growing number of crimes. These are generally taken to include theft of

computer services, software piracy and the alteration and theft of

electronically stored information, extortion committed with the help of

computers, obtaining unauthorized access to record from banks, credit card

issuers or customer reporting agencies, traffic in stolen passwords and

transmission of destructive viruses or commands. With the physical growth of

the internet over the past few years, a number of new generation crimes

affecting the lan, wan and Internet such as theft of information piracy, forgery,

counter feiting, dissemination of offensive materials, terrorism have also

grown. Hacking computer, network breaches, copyright, piracy, software

piracy, child pornography are some of the new terms in average criminal

investigator‘s dictionary. Highly intelligent persons commit these new

generation crimes leaving hardly any trace and making investigation highly

difficult and complicated22.

Computer crimes are now a matter of growing concern. Traditional barriers to

crime faced by criminals are being obliterated by digital technologies. In a

digital world, there are no state or international borders. Bits of information

flow effortlessly around the globe. In the past the culprit had to be physically

present to commit a crime. Robbing a bank or an armoured vehicle of cash

would pose problems of transportation and storage whereas transfer of money

poses no such problems in the digital world.

New dimensional crime have become a reality in India too. Law enforcement

agencies today face a number of challenges in the investigation of such cases.

22
Balvindar Singh : A new challenge for the police

77
5.1.2 - Legal challenges:

Deterring and punishing computer criminals requires a legal structure that will

support detection and prosecution of offenders. Yet the laws defining

computer offences and the legal tools needed to investigate criminals using the

internet, often lag behind social and technological changes, creating legal

challenges to law enforcement agencies.23

In India, however the I.T. Act 2000 has been enacted in pursuance to the

General Assembly of United Nations resolution A/RES/51/162 dated the 30th

Jan 1997. The I.T. Act 2000 elaborates upon digital signature, electronic

governance attribution, acknowledge and dispatch of electronic records, secure

electronic records24 etc. It specifies that Electronic Signatures will be valid and

legally enforceable only if the e-transactions is done through ―public key

cryptography‖ the Act delineates two separate types of penal provisions :

contraventions and information technology offences. While contravention

results in monetary penalty, I.T. Offences result in the offender being

imprisoned or fined or both. Amendments have also been made to the IPC,

Indian Evidence Act the Banker‘s Book Evidence Act and R.B.I. Act to

facilitate investigation and prosecution of cyber crime.

23
Dr. M. Dasgupta, Cyber crime in India
24
IT Act, 2000

78
5.1.3 - Operational Challenges –

There is need to have high tech crime units that respond to quick investigation

and assist law enforcement agencies faced with computer crimes. The police

have to be made cyber sensitive by imparting adequate training.25

The investigation of computer crime requires a team effort of police, forensic

scientists, lawyers and programmers or system administrators. Police may not

know much about computers and thus not know what evidence to look for.

Whereas programmers may know a great deal about computers, networks and

how they work, but may not know about legal procedural requirements

regarding the presentation of evidence. Forensic scientists may know how to

deal with evidence but like the police, may not know what to look for when

dealing with digital evidence or how to apply real world forensic methods to

it. But now since cyber crimes re increasing, the police and law enforcement

agencies have to learn how to handle digital evidence, use it to generate

investigative leads and to know when to call in an expert for assistance. Even

the lawyers have to learn to dig up digital evidence, defend it against common

arguments and determine whether it is admissible or not. Even forensic

scientists have to become intimately familiar with every aspect of digital

evidence so that they can process it to support an investigation.

The Central Bureau of Investigation (CBI) has recently created a cyber crime

research and development unit which maintains close liaison with

international agencies like the Federal Bureau of Investigation (FBI), Interpol

and other foreign police agencies to share skills and techniques in

25
D.B. Parker, Fiting Computer Crime

79
investigating cyber crimes.26 The officers of the Central Bureau of

Investigation (CBI) associated in this exercise share their expertise with the

state police forces through regional training programmes held periodically.

5.2 Elements of effective investigation

The Committee is required to address itself primarily to the role of the Police

in investigating crimes. The word ‘investigation’ has been defined in section

2(b) of the Criminal Procedure Code as: All the proceedings under the Code

for the collection of evidence by a police officer or by any other person (other

than a Magistrate) who is authorized by the Magistrate in this behalf.

Investigation is basically an art of unearthing the truth for the purpose of

successful detection and prosecution. In the words of the Supreme Court (in

H.N. Rishbud v/s State of Delhi27 the investigation generally consists of the

following steps:

 Proceeding to the spot

 Ascertainment of the facts and circumstances of the case

 Discovery and arrest of the suspected offender

 Collection of evidence relating to the commission of the offence which

may consist of the examination of:

a) Various persons (including accused) and the reduction of statements into

writing, if the officer thinks fit;

26
CBI research report
27
AIR 1955 SC 196: 1955 SCJ 283,

80
b) The search of places and seizure of things considered necessary for the

investigation and to be produced at the trial; and

c) Formation of the opinion as to whether on the materials collected, there is a

case to place the accused before a Magistrate for trial and, if so, taking the

necessary steps for the same for the filing of a charge sheet u/s 173 Cr.P.C.

The standard of police investigation in India remains poor and there is

considerable room for improvement. The Bihar Police Commission noted with

dismay that “during the course of tours and examination of witnesses, no

complaint has been so universally made before the Commission as that

regarding the poor quality of police investigation”. Besides inefficiency, the

members of public complained of rudeness, intimidation, suppression of

evidence, concoction of evidence and malicious padding of cases. Almost in

the same vein, the Punjab Police Commission bemoaned poor quality of police

investigation. A frequent complaint relating to the method of investigation

received by the Punjab Police Commission was that all cases were not

investigated by one officer but several officers in succession.

The West Bengal Police Commission also referred to noticeable deterioration

in the standard of investigation. The Second West Bengal Police Commission

reaffirmed the downward trend and observed that during the intervening years

the standard of investigation had further gone down. Many cases did remain

undetected. It also observed that conviction figures had also gone down.

5.2.1 INADEQUACY OF STAFF

In the first place, there is inadequacy of the investigating staff. The police

officers are hard pressed for time with multifarious commitments and, thus,

81
not able to devote adequate time for investigational work. A sample survey

done at the instance of the National Police Commission (Fourth Report of the

National Police Commission-page 3) in six States of the country revealed that

on an average, the investigating officer is able to devote only 27% of his time

on investigational work, while the rest of the time is taken by other duties

connected with the maintenance of law and order, VIP bandobust, petition

enquiries, court attendance, collection of intelligence and other administrative

work. The Committee on Internal Security constituted by the group of

Ministers (GOI) in the wake of Kargil conflict in 2000 was informed by the

DGP, Uttar Pradesh, of the startling fact that the police could devote only 13%

of its time on investigations. Similarly, a random survey done at the instance

of Second West Bengal Police Commission revealed that a Sub-Inspector of

an urban police station in West Bengal, on an average, spent 20-25% of his

time on investigational work; a Sub- Inspector in Calcutta City spent about

41% his time on it and a Sub Inspector in rural areas spent 16 to 18% of time

in investigative work due to long distances involved. Inadequate number of

I.Os.coupled with low percentage of their time being devoted to

investigational work, resulting in perfunctory and delayed investigations,

paved way for the acquittal of the accused.

An investigating officer on an average, investigates 45 cases in a year. There

is, however, a wide variation amongst States, with the workload of IO ranging

from a low of 12.7 cases in Orissa to a high of 145.3 cases in Andhra Pradesh.

The National Police Commission had suggested a workload of 60 cases per

IO. Given the heavy commitment of police officers in law and order, VIP

security and other ‘Bandobast’ duties, there is need for fixing a more realistic

82
norm. It may be apt to add that the prevailing norms regarding workload of 10

in the CBI are two cases per year in the Central Units and 4 cases per year in

the Territorial Units. The Committee has interacted with police officers at the

highest level as well as at the executive level. It has also discussed relevant

issues with SHOs and there immediate supervisory officers and seen their

work regarding investigation in some States. On the basis of observations and

interaction, the Committee is of the opinion that for improving quality of

investigation, the workload of an IO (or a team of IOs) should not exceed 10

cases per year. This norm is suggested for investigation of serious crimes.

5.2.2 SEPARATION OF INVESTIGATION WING FROM LAW &

ORDER WING

As of now, the police have a combined cadre of Officers and men who

perform both investigational and law and order duties, resulting in lack of

perseverance and specialisation in investigations, especially of the serious

cases. It needs to be emphasised that the duties of the police as prescribed in

section 23 of the Indian Police Act, 1861, have become totally out-dated.

Much water has flown down the Ganges since then. Terrorism, particularly

State sponsored terrorism from across the borders, has drastically changed the

ambit and role of police functions and duties in certain parts of the country.

Besides, organised crime having inter-State and transnational dimensions has

emerged as a serious challenge to the State authority. This has compelled the

Police Departments to divert a large chunk of their resource to these areas,

leaving as much less for the routine crime work. The need for expeditious and

effective investigation of offences as contributing to the achievement of the

goal of speedy trial cannot be gain said. The investigation of crime is a highly

83
specialised task requiring a lot of patience, expertise, training and clarity about

the legal position of the specific offences and subject matter of investigation.

It is basically an art of unearthing hidden facts with the purpose of linking up

of different pieces of evidence for successful prosecution. The Committee is of

the view that investigation requires specialization and professionalism of a

type not yet fully achieved by the police agencies. It is basically an art of

unearthing hidden facts with the purpose of linking up of different pieces of

evidence for successful prosecution. The Committee is of the view that

investigation requires specialization and professionalism of a type not yet fully

achieved by the police agencies. The National Police Commission by a sample

survey in six States in different parts of the country found that an average IO

was able to devote only 30% of his time to investigational work while the rest

of the time was taken in other duties. The National Police Commission

stopped short of categorically recommending separation of the investigation

wing from the law and order wing but recommended restructuring of the

police hierarchy for increasing the cadre of IOs.

The Law Commission of India discussed this issue threadbare in its 154th

report and categorically recommended separating the investigating agency

from the law and order police. The Law Commission adduced the following

grounds in support of its recommendations:

 It will bring the investigating agencies under the protection of judiciary

and greatly reduce the possibility of political or extraneous influences;

 Dfficient investigation of cases will reduce the possibility of

unjustified andunwarranted prosecutions;

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 It will result in speedier investigation which would entail speedier

disposal of cases;

 Separation will increase the expertise of the investigating officers

 The investigating police would be plain clothes men and they

 Would be able to develop good rapport with the public

 Not having been involved in law and order duties entailing the use

 Of force, they would not provoke public anger and hatred which

 Stand in the way of public police cooperation in tracking down

 Crime and criminals and getting information, assistance and

Intelligence from the public

The Committee on Police Reforms constituted by the Government of India

under the chairmanship of Sri K. Padmanabhaiah also recommended

separation of investigation from the law and order wing. We feel that the long

standing arguments whether crime and law and order should be separated

should be ended once and for all. Most police officers are agreed that they

should be separated but feel that the separation may not be practical. We are of

the view that such a separation should be made in urban areas in all States as a

beginning. Separation of crime from law and order will lead to greater

professionalism and specialisation and will definitely improve the quality of

investigation. In UP, this separation has already been put into effect in

municipal and bigger towns from April, 2000. Maharashtra is also in the

process of doing it. The rest of India must follow suit. It has been brought to

our notice that separation in the two wings has already 94 been effected in

certain large cities in the country. In Chennai Police Commissioner’s office,

there are separate police stations for Law and Order and crime. The Crime

85
Police Stations in Chennai register and investigate cases relating to property

offences. The rest of the offences are handled by the Law & Order PSs.

In the rural areas, the traditional system prevails. We have given a serious

thought to the matter and are of the view that all serious crimes, say sessions

triable cases, and certain other classes of cases are placed in the domain for the

Crime Police and the remaining crimes including crimes under most of the

Special and Local laws are handled by the Law and Order Police. The

Committee strongly feels that:

 The staff in all stations in urban areas should be divided as Crime

Police and Law and Order Police. The strength will depend upon the

crime & other problems in the PS area.

 In addition to the officer in-charge of the police station, the officer

incharge of the Crime Police should also have the powers of the officer

incharge of the police station.

 The investigating officers in the Crime Police should be at the least of

the rank of ASI and must be graduates, preferably with a law degree,

with 5 years experience of police work.

 The category of cases to be investigated by each of the two wings shall

be notified by the State DGP.

 The Law & Order police will report to the Circle officers/SDPO.

Detective constables should be selected, trained and authorised to

investigate minor offences.This will be a good training ground for

them when they ultimately move to the crime police.

 A post of additional SP (Crimes) shall be created in each district. He

shall have crime teams functioning directly under him. He will carry

86
out investigations into grave crimes and those having inter district or

inter state ramifications. He shall also supervise the functioning of the

Crime Police in the district.

There shall be another Additional SP (Crime) in the district who will be

responsible for

a) collection and dissemination of criminal intelligence;

b) maintenance and analysis of crime data:

c) investigation of important cases

d) help the Crime Police by providing logistic support in the form of Forensic

and other specialists and equipment. Investigations could also be entrusted to

him by the District SP.

Each state shall have an IG in the State Crime Branch exclusively to supervise

the functioning of the Crime Police. He should have specialised squads

working under his command to take up cases having inter District. & and

inter-state ramifications. These could be

a) cyber crime squad;

b) anti terrorist squad;

c) organized crime squad;

d) homicide squad;

e) economic offences squad;

f) kidnapping squad

87
g) automobile theft squad;

h) burglary squad etc.

5.2.3 LEVEL OF THE INVESTIGATING OFFICER

It may be apt to point out that the rank of the IO investigating a case also has

a bearing on the quality of investigation. The minimum rank of an SHO in the

country is SI. However, some of the important police stations are headed by

the officers of the rank of Inspector. It has been observed that investigations

are mostly handled by lower level officers, namely, HC and ASI etc.. The

senior officers of the police stations, particularly the SHOs generally do not

conduct any investigations themselves. This results in deterioration of quality

of investigations. While no hard and fast rule can be laid down as to the rank

of the IO for a particular type of case, the Committee, however, recommends

that, as far as possible, all Sessions triable cases registered in the police

stations should be investigated by the senior most police officers posted there,

be they SIs or Inspectors. This has obvious advantages as they will be able to

do a better job because of their superior intelligence, acumen and experience

and control over the resources.

5.2.4PLACEMENT POLICY OF INVESTIGATING STAFF

Another related aspect is frequent transfer of cases from one IO to another

and from District. Police to the Range Office or the State Crime Branch due to

extraneous considerations. This practice not only demoralizes the initial

investigating officer or agency but also cools the trail of investigation and

88
renders immunity to the criminals, at least temporarily, from penal

consequences. The Committee is of the opinion that:

a) The National Security Commission at the national level and the State

Security Commissions at the State level should be constituted, as

recommended by the National Police Commission. Constitution of the

aforesaid Commissions would give an element of insularity to the police

forces in the country and invoke faith and trust of the people in its functioning.

b) Police Establishment Boards consisting of DGP and 3 to 4 other senior

police officers should be set up at the Police Headquarters in each State.

Posting, transfer and promotions etc. of District.level officers should be made

on the recommendation of such Boards, with the improviso that the

Government may differ with the recommendations of such Boards for reasons

to be recorded in writing.

c) No case should ordinarily be transferred from one 10 to another or from

District. Police to the Range office or the State Crime Branch by the

competent authority unless there are very compelling and cogent reasons for

doing so and such reasons should be recorded in writing by the concerned

authority.

d) The ‘superintendence’ of the Police in the State vests in the State Govt. As

there are allegations, not always unfounded, of misuse of this power for

extraneous considerations, it would be desirable to delimit the ambit and scope

thereof by adding an explanation underneath section 4 of the Indian Police

Act, as recommended by the NPC, to the following effect.

89
e) Explanation: The power of superintendence shall be limited to the purpose

of ensuring that the police performance is in strict accordance with law”.

Another related aspect is frequent transfer of cases from one IO to another and

from District. Police to the Range Office or the State Crime Branch due to

extraneous considerations. This practice not only demoralizes the initial

investigating officer or agency but also cools the trail of investigation and

renders immunity to the criminals, at least temporarily, from penal

consequences. Understandably format of a new Police Act is already under

consideration of the Govt. of India. We feel that this exercise should be

completed without loss of any time.

5.2.5 INSULARITY AND INTEGRITY OF THE INVESTIGATING

AGENCY

Another important aspect impacting on the quality of investigation is the

insularity of the investigating officers and the supervisory ranks. For fair and

impartial investigation, it is imperative that the investigating machinery is

immune from political and other extra influences and acts in consonance with

the law of the land and the Constitution. It has, however, been observed that

the people in authority think nothing of wielding influence to scuttle and, even

thwart, criminal investigations or to bend them to suit their political or

personal conveniences. What is worse is that in certain States, the ‘Desires

System’ in the posting of District and Thana level police officers is ruling the

roost. The things have come to such a pass that no transfer can be affected

without the ‘desire’ of the local MLA and MPs and certainly not always for

altruistic reasons or in public interest. This practice, wherever it prevails, is

not desirable in any wing of the Government and certainly not in the Police

90
Department and needs to be discontinued. It is strongly felt that the

investigating officers should have the requisite independence responsible to

act according to law and the constitution. Mere change of mind set would not

suffice unless appropriate legal backing is provided in this regard.

Integrity of the I.O has a vital bearing on the integrity of the investigation

conducted by him. The misconduct of the IOs has often been overlooked due

to misplaced and misconceived service loyalties. The Committee feels that the

Dist. Supdts. Of Police, Range Dy.I.Gs and the DGPs must ensure that the IOs

function wit utmost integrity and bad elements amongst them are identified

and excluded from investigative process. This would necessitate strengthening

of the Police Vigilance set-ups at the State level and constitution of a similar

mechanism at the Range/District level.

5.2.6 SUPERVISION

Another important reason for the decline in the quality of investigation is lack

of effective and timely supervision by the senior officers. There is a hierarchy

of officers above the SHO who are empowered to monitor and guide the

investigations in terms of section 36 Cr.P.C., namely, Deputy SP, Additional

SP, Superintendent of Police and even the Range DIG. But most of them do

not devote adequate time and energy to supervisory work. This has been

affirmed in a study conducted by the BPRD in respect of murder cases of

Faridabad, Gurgaon, & Union Territory, Delhi .Further, it has to be pointed

out in view of our fractured polity and social dissonances, it has now become a

regular feature to embellish the FIRs andstatements, giving incorrect facts and

circumstances, with the objective of roping in innocent persons for political

91
reasons or to settle personal scores. This happens even in grave offences like

murder and rape etc. Witnesses and victims even make false statements before

the Magistrates u/s 164 Cr.P.C. It is, therefore, the duty of the supervisory

officers to properly guide the investigations right from the beginning so as to

ensure that innocent persons are exculpated and the real guilty ones brought to

justice. It is easier said than done. It needs hard work, professional expertise,

and to top it all, moral courage to call a spade a spade, unmindful of the parties

and pressure groups involved. The I.O alone, lowly in rank, cannot do it; he

needs professional and moral support of his seniors, which, unfortunately, is

missing either due to professional inaptitude or political compulsions. The

Committee feels that the quality of investigations would not improve unless

the supervisory ranks in the police hierarchy i.e. Circle Officers/ District.

Supdt.of Police/Range Dy.IGP, pay adequate attention to the thorough and

timely supervision over the progress of individual investigations. The National

Police Commission in para 27.35 of its 4 report observed that effective

supervision of an investigation would call for:

 Test visit to the scene of crime;

 A cross check with the complainant and a few important witnesses to

ensure that their version has been correctly brought on police record

and that whatever clues they had in view have been pursued by the

police;

 Periodic discussion with the investigating officers to ensure continuity

of his attention to the case; and

 Identification of similar features noticed in other cases reported

elsewhere, and coordinated direction of investigation of all such cases.

92
Needless to say, supervision ensures proper direction, coordination and control

and this helps efficiency. Effective supervision by the District Superintended

of Police and Circle Officers also reduces the utilisation of opportunities and

misuse of coercive powers vested in the officers from the SHO down to the

constabulary, to the minimum. If the supervision of the District. SP and the

CO is lax and ineffective, it is bound to breed inefficiency and corruption in

the force. The efficiency and honesty of the force depends largely in the

manner in which superior officers discharge their responsibilities through

example and precept. Thus, close and constant supervision by senior officers

over the work of subordinate officers is absolutely essential. Close supervision

of individual investigations is also essential to check the canker of corruption.

The efficiency and honesty of the force depends largely in the manner in

which superior officers discharge their responsibilities through example and

precept. Thus, close and constant supervision by senior officers over the work

of subordinate officers is absolutely essential. Close supervision of individual

investigations is also essential to check the canker of corruption. Some of the

areas in which Supervisory Officers can play a vital role are enumerated

below:

 Crimes are freely registered.

 Crimes are registered under the appropriate sections without

minimizing the occurrence for the sake of statistics;

 There is no minimization or lessening of the value of property in order

to reduce supposed police responsibility;

 Complaint, if made orally, is recorded at once carefully and accurately

in plain and simple language by the senior most officer present in the

93
police station or by someone to his dictation without omitting any of

the important and relevant details.

 There is no interpolation while writing complaints and if any fact is

omitted, it is written afresh at the bottom, and if anything is scored out,

it is done neatly with initials and date and in such a manner that it

could be read;

 If investigation is refused u/s 157(1)(b), it is done on proper grounds;

 The investigation in all cases is prompt, thorough and sustained;

 Final reports are submitted without delay and charge-sheets are

accompanied by complete evidence that is to be led at the trial;

 Cases are not routinely closed as false unless there are reasons to do so

and in case it is decided to close the case, steps are taken to prosecute

the accused u/s 182 or 211 IPC;

 After the case has gone to the Court, its progress is watched and it is

ensured that the witnesses, including the investigating police officers,

attend the Court on the due dates and depose properly and that the

Public Prosecutors perform their duties competently;

 They should coordinate with the neighboring police stations or

neighboring Districts. and even States in investigation of Inter District

or Inter-State crimes;

 Investigation is kept on the right track and no extraneous influences

and political and otherwise are allowed to influence it;

 Investigations are conducted in an honest and transparent manner;

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 Scientific aids to investigation are optimally utilized in investigations

and that FSL experts are taken to the spot in specified crimes for

preservation and collection of evidence.

 Articles/exhibits seized in investigation are sent to the FSL for expert

opinion and that such opinion is promptly obtained and cited as

evidence along with the charge sheet.

 The Medico Legal Reports are obtained from the experts quickly so as

to reach a fair and just conclusion in a case;

 Case diaries are properly maintained as per law and entries in the

General Diary;

 The power of arrest is not abused or misused;

 The human rights of the accused are protected

 The witnesses coming to the police station are not made to wait for

long hours and they are disposed of as promptly as possible;

 Third degree methods are avoided in the investigation;

 The inbuilt system of timely submission of case diaries etc. to

supervisory officers is reinforced and investigations completed

expeditiously.

 The mandate of the supervisory officers enumerated above is only

illustrative and not exhaustive. In cases of grave crimes, supervisory

officers have to coordinate with other Districts and other States police

forces and may when necessary undertake tours to places outside their

jurisdictions. Given the present crime scenario, the supervisory officers

must, lend a helping hand to because of their superior caliber, better

mobility and superior contacts.

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 The Circle Officers should be left alone to concentrate on their

primary job of supervision, and investigations generally, should be

conducted by the Inspectors, Sub Inspectors and AS! etc. posted in the

police stations. Nonetheless, both the COs and the lOs need to be made

responsible and accountable for ensuring correctness of investigation.

5.2.7 INADEQUATE TRAINING

Crime investigations is a specialized work where the I.Os can perform their

duties properly only when they are properly trained and possess necessary

skills and expertise. There is, thus, great need to develop and sharpen

investigative skills of the officers through regular training programmes at the

induction stage and periodical inservice training courses. These are two main

problems in this regard: lack of training institutions, let alone state-of-the-art

institutions; and more importantly, lack of willing trainers. Presently, there are

three Central Detective Training Schools at Calcutta, Chandigarh and

Hyderabad. Most of the States also do have their own training institutions but

the present training facilities appear to be unable to cater to the total

requirements of training. Further, the existing training institutions impart the

training in old disciplines. As the complexity and nature of crime is changing

fast, training facilities in emerging disciplines such as forensic accounting and

information technology etc need to be developed and imparted to the I.Os. The

Committee is of the view that:

Adequate number of Training Institutions should be set up by the State

Governments as also by the Central Government for initial training of various

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ranks of the police personnel as also for inservice training. These instructions

should focus on:

a) Protection of scene of crime;

b) Collection of physical evidence there from with the help of experts,

including forensic experts;

c) Inculcating the art of interrogation of suspects and witness;

d) Developing the art of collection, collation and dissemination of criminal

Intelligence;

e) Developing and handling informers etc.

f) The trainers should be handpicked by a Committee constituted by the DGP

and officers having professional skills and aptitude alone should be inducted

in the Training Institutions. They need to be given adequate monetary

incentive and a fixed tenure, say of three years. The old system of 30% of the

basic pay to the trainers may be revived.

g) Facilities should be developed for imparting training in modern disciplines

such as Forensic Accounting, Information Technology, Cyber Crime,

Economic and Organised Crimes etc.

5.2.8 LACK OF FORENSIC TECHNIQUES IN INVESTIGATIONS OF

PROFESSIONAL CRIMES

It can hardly be gainsaid that the application of forensic science to crime

investigation must commence from the stage of the very first visit by the IO to

the crime scene so that all relevant physical clues, including trace evidence,

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which would eventually afford forensic science examination, are appropriately

identified and collected. This can best be done if the IO is accompanied to the

crime scene by an appropriately trained scientific hand. The standard practice

in most of the advanced countries is to provide such scientific hands, variously

designated as ‘Field Criminalists’, ‘Scene of Crime Officers’ (SOCO), Police

Scientists etc., in the permanent strength of each police station. In some cases,

these personnel are drawn from scientific cadre, while in some others, they are

policemen themselves, specially selected for their flair for scientific work and

theiracademic background of science subjects. These personnel are then

provided indepth training in crime scene management and in the identification

of different types of scientific clues to be looked for in different types of

crimes. It can hardly be gainsaid that the application of forensic science to

crime investigation must commence from the stage of the very first visit by the

IO to the crime scene so that all relevant physical clues, including trace

evidence, which would eventually afford forensic science examination, are

appropriately identified and collected. The present level of application of

forensic science in crime investigation is some-what low in the country, with

only 5-6% of the registered crime cases being referred to the FSLs and Finger

Print Bureau put together. There is urgent need to bring about quantum

improvement in the situation, more so when the conviction rate is consistently

falling over the years in the country and the forensic evidence, being clinching

in nature, can reverse the trend to some extent.

There are only 23 Central Forensic Science Laboratories /Forensic Science It

can hardly be gainsaid that the application of forensic science to crime

investigation must commence from the stage of the very first visit by the IO to

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the crime scene so that all relevant physical clues, including trace evidence,

which would eventually afford forensic science examination, are appropriately

identified and collected. Laboratories and about 17 Regional Laboratories in

the country. On the other hand, USA has about 320 Forensic Science

Laboratories (including private sector Laboratories). It would, thus, appear

that the number of Forensic Science Laboratories in the country is grossly

inadequate and certainly not commensurate with our requirements. The

Committee strongly feels that Forensic Science facilities in India need heavy

augmentation. It may be added that a National Seminar on “Forensic Science;

Its Use and Application in Investigation and Prosecution; was organised by

this Committee and the Bureau of Police Research and Development at

Hyderabad on 27 July 2002. A number of Judges (including High Court

Judges), Senior Police Officers and Directors of most of the Central and State

Forensic Science Laboratories of the country participated in the seminar and

made valuable suggestions for improving the Forensic Science scenario in the

country. The members of the Core Group constituted by this Committee

formulated the recommendations in this matter and submitted to our

Committee. The Committee is of the opinion that the following

recommendations of the Core Group should be implemented:

Police Manuals and Standing Orders of different States/Union Territories need

to be amended to make the use of Forensic Science mandatory, as far as

practicable, in investigation of all grave and important crimes such as those

involving violence against the persons, sexual offences, dacoity, robbery,

burglary, terrorists crimes, arson, narcotics, poisons, crimes involving

firearms, fraud and forgery and computer crimes.

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Police Manuals and Standing Orders should mandate the supervisory officers

to carefully monitor and scrutinize, if or not the IOs have exploited the

possibility of the use of forensic science in the investigation of each crime

right from the threshold of investigation.

The State Governments should immediately create appropriate forensic

science facilities in each District. This should include one or more Mobile

Forensic Science Units, depending on the size of the District, the incidence of

crime, terrain and communication conditions in each District. Each unit should

have a Forensic Expert, a Finger Print Expert, a Photographer and a

Videographer. The job of these mobile units would be not only to identify,

collect and preserve the evidence but also to tender necessary opinion, on the

spot, to the IO, if scientifically feasible.

Each police station should be provided with a set of Scientific Investigation

Kits for identification and lifting of scientific clues from the crime scene.

Arrangement should also be made to create proper facilities for packaging,

storage and preservation of scientific clue material collected from the crime

scene or suspects, to ensure their protection against contamination,

degradation or damage at the police station or in the District Headquarters.

Standard material for packaging and preserving scientific evidence should be

supplied for this purpose from time to time by the State FSLs. Appropriate

number of Regional FSLs at the headquarters of each Police Range should be

set up by the State Govt.

The Central and State FSLs are facing acute shortage of men power.

According to a study conducted by NICFS, the vacancies in the FSLs range

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from 17 to 71% of the sanctioned posts of scientists. The Governments

concerned should take appropriate steps to fill up these vacancies. Further, the

sanctioned strength itself is pegged at far below the yardsticks formulated by

BPR&D. The States must, therefore, revise the sanctioned strength of their

respective FSLs in the light of the BPR&D guidelines.

There are virtually no facilities for training of Forensic Scientists in the

country and they mostly learn on the job. It must be noted that a trained

scientist is far more productive than several untrained or semitrained hands.

We, therefore, recommend that NICFS should take upon its shoulders the

responsibility of imparting professional training to the scientific personnel. We

also recommend that NICFS must expand and strengthen its core facilities in

emerging areas such as forensic DNA, Forensic Explosives and Computer

Forensics etc.

The Finger Print Bureau in the country are generally undermanned and are

storing and analyzing data manually. The analysis and retrieval, therefore,

takes a long time and the storage capacity is also limited. We, therefore,

recommend that modern electronic gazettes must be used in collection,

storage, analysis and retrieval of finger print related data.

Most of the FSLs suffer from financial crunch. The budgetary position of the

FSLs should be reviewed and sufficient funds should be made available to

them. A mandatory time limit should be prescribed for submission of reports

to the police/Courts by the FSLs.

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A national body on the pattern of Indian Council of Medical Research should

be constituted in the country to prescribe testing norms for the FSLs and

ethical standards for the forensic scientists.

Forensic Science, unfortunately, has not assumed the status of an academic

discipline in India. We recommend that the UGC should consider creating the

departments of Forensic Science in at least all the major universities. Later,

Forensic Sciences could be introduced as subjects at the school level. Funds

should also be ear-marked and allotted for research in these departments.

A polygraph machine for lie detector test should be provided in each district.

The regular use will obviate the need for extra legal methods of interrogation.

5.2.9- DELAYED SUBMISSION OF EXPERT REPORTS

The report of FSL experts and Medical Jurists play a seminal role both at the

investigation stage and at the trial stage in the determination of facts. The

police and the court complain that these reports are not being submitted in

time by the experts concerned. The delay hampers the investigations and

delays trials. Certain State Governments have laid down the time frame for

submission of reports by the experts but these norms are not being adhered to

partly due to inadvertence and partly due to over-loading of these institutions.

5.2.10- MEDICO LEGAL SERVICES

The Medico Legal Services play an equally important role in the investigation

of crime and prosecution thereof. The state of Medico Legal Services in the

country is far from satisfactory. One of the main contributory factors for this is

that the entire apparatus of the Medico Legal Services is administratively

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controlled by the Department of Health under the State Governments who are

not concerned with the police or with the Criminal Justice System. Even, the

Forensic Medicine Departments attached to the Medical Colleges are in a poor

and neglected state. The Doctors doing Medico Legal work i.e. conducting

postmortems of dead bodies and preparing Injury Reports etc. are also a

dispirited lot and in a poor state of morale. They feel forsaken by their parent

departments and not owned up by the Police departments for which they

seemingly work. Keeping in view the prevailing scenario, the Committee

recommends that:

 On the pattern of Tamilnadu, a Medico Legal Advisory Committee

should be set up in each State under the Senior Most Medico Legal

Functionary/Professor of Forensic Medicine/Police Surgeon, with at-

least two Board members, including one from the State FSL. One of

the main tasks of this Committee would be to resolve the differences of

opinion between the Medico Legal Professionals and the Forensic

Experts.

 The condition of mortuaries is dismal all over the country. Appropriate

mortuary rooms with adequate infrastructure and equipment should be

made available to each Medical College.

 At places where there are no Medical Colleges, Medico Legal work is

being done by the Doctors who are not adequately trained in such

work.

 Resultantly, they often turn out sub-standard reports which create

confusion for the IOs as well as for the Courts. The State Governments

must prepare a panel of qualified Doctors, adequately trained in

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Medico Legal work, and post them in the Districts and other Mufassil

Hospitals for attending to such work.

The State Government must prescribe time-frame for submission of Medico

Legal reports. We recommend the following time frame:

a) Injury Report : 6 hours;

b) Postmortem Report : 24 hours

There has been a tendency on the part of some Medico Legal experts to

reserve their opinion as to the cause of death etc., pending receipt of the

reports of FSLs on toxicological examination even in cases where it is possible

for them to give a definite opinion about the cause of death. This tendency

should be eschewed.

5.2.11 - DELAY OF REGISTRATION OF CASES

According to the section 154 of the Code of Criminal Procedure, the officer

incharge of a police station is mandated to register every information oral or

written relating to the commission of a cognizable offence. Non registration of

cases is a serious complaint against the police. The National Police

Commission in its 4th report lamented that the police “evade registering cases

for taking up investigation where specific complaints are lodged at the police

stations”. It referred to a study conducted by the Indian Institute of Public

Opinion, New Delhi, regarding “Image of the Police in India” which observed

that over 50% of the respondents mention non registration of complaints as a

common practice in police stations.

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The Committee recommends that all complaints should be registered

promptly, failing which appropriate action should be taken. This would

necessitate change in the mind-set of the political executive and that of senior

officers.

There is yet another aspect that needs consideration. Section 154 Cr.P.C.

provides that it is the officer in-charge who will register a case relating to

commission of a cognizable offence. The SHO are often busy in

investigational and law and order duties and are also on tours in connection

with court appearances etc. In their absence from the police stations, the

informants are made to wait till their return. it causes avoidable harassment to

the informant and also results in the disappearance of evidence. We, therefore,

recommend that the State Governments/DGPs must issue firm instructions to

the field formations to the effect that a case shall be registered by the SHO of

the police station if he is present at the police station and in his absence by the

senior most police officer available at the station, irrespective of his rank.

There are two more aspects relating to registration. The first is minimization

of offences by the police by way of not invoking appropriate sections of law.

We disapprove of this tendency. Appropriate sections of law should be

invoked in each case unmindful of the gravity of offences involved. The

second issue is relating to the registration of written complaints. There is an

increasing tendency amongst the police station officers to advise the

informants, who come to give oral complaints, to bring written complaints.

This is wrong. Registration is delayed resulting in valuable loss of time in

launching the investigation and apprehension of criminals. Besides, the

complainant gets an opportunity to consult his friends, relatives and,

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sometimes, even lawyers and often tends to exaggerate the crime and

implicate innocent persons. This eventually has adverse effect at the trial. The

information should be reduced in writing by the SHO, if given orally, without

any loss of time so that the first version of the alleged crime comes on record.

5.2.12-FACILITIES FOR INTERROGATION

It can hardly be over emphasized that interview of witnesses and interrogation

of suspects/accused should be done in a professional manner so as to elicit the

truth. This is possible only when the Investigating Officer possesses

professional competence, has adequate time at his disposal and the

interview/interrogation is conducted in a proper ambience. The police stations

in the country are generally small and located in crowded areas, particularly in

the urban centres. Some of them are even operating out of tents. Neither the

investigating officer nor the witnesses/ suspects/accused have any privacy in

this atmosphere. The Committee, therefore, feels that a room equipped with

proper facilities such as video cameras, voice recorders etc. should be set apart

in each police station for the purposes of interrogation/interview.

5.2.13- TECHNIQUES FOR COLLECTION OF CRIMINAL

INTELLIGENCE-

The present day crime situation in India is of alarming concern to the police

force and enforcement agencies of the Central Government. To tackle the

challenge of terrorism (including narco-terrorism anti terrorist-funding),

organised crime, drug trafficking, economic crimes such as bank-scams etc.

and crimes having inter-State and trans-national ramifications, new strategies

are called for. What is of immediate concern is to have accurate and real time

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intelligence on organised crime activities so as to prevent major catastrophes

in the future. While a structured system for collection and dissemination of

political intelligence exists in the States and at the Central level, no such

system, however, is in place as far as the criminal intelligence is concerned.

This deficiency has definitely hampered the crime control effort and calls for

immediate remedial action. The Committee feels that concrete steps ought to

be taken to institutionalize criminal intelligence system and recommends that:

a) An apex body at the national level headed by an officer the rank of

DGP/IGP to be called the National Bureau on Criminal Intelligence should be

set up. Its head office and permanent secretariat would be at Delhi. It would

consist of officers drawn from all parts of the country and representing a

cross- section of the police forces and central investigating agencies. The main

task of this body would be to collect, collate and disseminate information

about major criminal gangs operating in the country involved in organised

crime, terrorism, narco terrorism, cyber crimes, wild life crimes and

environmental crimes, economic crimes etc. Its exact charter would be

determined by the Central Government. This body would function as a

Clearing House of the criminal information regarding specified grave crimes

and would have a computerised data base, accessible to all State Police

forces/central agencies.

b) A similar body may be set up at the State level. It may be headed by an

IGP/DIGP level officer, responsible to the DGP through the head of the State

Crime Branch. This agency would also have a computerised data base

accessible to the national level body, its counter-parts in other States and all

Districts. within the respective States.

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The State Governments/DGPs should set up Criminal Intelligence Cells in

each District. An Additional SP level officer may head this Cell in each

district on full time basis. The District MOB may be merged into this Cell.

This Cell will collect information through the police stations as well as

through its own staff and will have a computerized data base.

A Criminal Intelligence Unit should be set up in each police station. It may

consist of Core Intelligence Unit of 3 or 4 ASI/HC, well trained and motivated

for the work and equipped with adequate transport and communication

facilities. The Committee feels that it would be useful to involve the public

spirited and politically neutral NGOs with record of moral rectitude and the

Community Liaison Groups or other such organisations by whatever name

called in the collection of criminal intelligence at the police station and

District. level.

5.2.14-COORDINATION AMONGST INVESTIGATORS, FORENSIC

EXPERTS AND PROSECUTORS

No case can succeed at the trial unless it is properly investigated and

vigorously prosecuted. Forensic experts evidently play a key role both at the

investigation stage as also at the prosecution stage. The investigators, forensic

experts and prosecutors should act in cooperation with each other. The

mechanism of integration between the investigators and the forensic experts

can be implemented at the following stages:-

 Initial investigation i.e., at the crimes scene level;

 Search of the suspects, suspects’ premises and collection of physical

evidence there-from;

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 Framing request for laboratory analysis;

 Interpreting the analytical results of the laboratory;

 Evaluating the probative value of the result in accordance with

prosecution needs;

 Pre-trial discussion with the prosecutors;

 Offering the testimony before the Court;

 Prosecutors’ arguments on the case;

 Review of effectiveness of forensic evidence as indicated in the

judgment.

5.2.15-NEED FOR NEW POLICE ACT

Law is an important instrument for prevention and control of crime. The

Committee feels that for effectiveness of the Criminal Justice System, not only

certain new laws need to be enacted but the deficiencies in the existing laws,

which adversely affect investigation and prosecution of cases, need to be

rectified. After a careful consideration of the matter, the Committee suggests

the enactment of the following new laws: The police system in the Country is

functioning under the archaic Indian Police Act which was enacted in 1861 for

the perpetuation of the British Empire. The police now have an obligation and

duty to function according to the requirements of the Constitution, law and

democratic aspirations of the people. Further, the police is required to be a

professional and service-oriented organisation, free from undue extraneous

influences and yet be accountable to the people. Besides, it is necessary to

have the police force which is professionally controlled and is politically

neutral, nonauthoritarian, people friendly and professionally efficient. The

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National Police Commission had recommended enactment of a new Police Act

for achieving the above objectives about two decades back. The Central Govt.,

however, has not taken any action. The Committee strongly feels that a new

Police Act may be enacted by the Central Govt. on the pattern of the draft

prepared by the National Police Commission. Section 167 (2) Cr. P. C.,

provides for a maximum of 15 days in police custody. It is not possible to fully

investigate serious crimes having inter-state ramifications in this limited

period. The law should be amended to provide for a maximum police custody

remand of 30 days in respect of grave crimes where punishment is more than

five years.

As per section 167 Cr.P.C., the accused is liable to be released on bail if the

charge sheet is not filed against him within 90 days from the date of his arrest.

It is not always possible to investigate a case comprehensively within this

period particularly cases having inter- State or trans-national ramifications.

This results in accused involved in grave crimes being enlarged on bail. It

would be desirable if the law is amended to provide another 90 days to the

investigating agencies in case of grave crimes if, on the report of the

investigating officer, the court is satisfied that there are sufficient reasons for

not filing the chargesheet within the initial period of 90 days.

Under Section 167(2) an accused cannot be taken on police custody remand

after the expiry of first 15 days from the date of his arrest. This has emerged as

a serious handicap in sensitive investigations. This issue was deliberated upon

by the Law Commission of India which recommended in their 154 report that

the law should be amended to enable the CBI to take the accused in the police

custody remand even after the expiry of the first 15 days so long as the total

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police custody remand of the accused does not to exceed 15 days. In our view,

such discrimination between the State Police and CBI would not be justified.

The law, therefore, is required to be amended to on the lines permitted to

C.B.I. Many times accused are admitted in Hospitals during police custody on

health grounds and stay there for several days. During this period interrogation

of accused is not possible. Thus the police officer is handicapped in

investigation. To overcome this difficulty a suitable provision be made in

Section 167(2) to exclude the period of hospitalization or such other cause for

computing the period available for police custody.

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CHAPTER 6

CONCLUSION AND SUGGESTION

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CHAPTER 6

CONCLUSION AND SUGGESTION

Since the primary job of a researcher is to investigate, so to that end a

researcher usually collects and analysis data and draws conclusions. Long time

ago, the researchers were not trained, infact they lacked the basic techniques

related to date collection and analysis. In order, that the Special Investigating

Agencies conduct effective and objective investigation, the investigators need

to keep some points in their minds for conducting good investigation. We

know that law enforcement agency is an agency responsible for insuring

obedience to the laws, ACC to Webster‘s Dictionary. ―Whether the law

enforcement agencies are a friend or foe is entirely a matter of

faith.Undeniably, the police and other law enforcement agencies have

garnered a bad reputation as is evidenced by any news report or survey.

However low a main sinks he never reaches the level of the police “Quetin

crisp. This means, unfortunately, the general public has lost faith in the

enforcement agencies. They are looked at as corrupt, bribe taking,

lackadaisical, insensitive and inefficient. The enforcement agencies often

claim that the portrayal is exaggerated, but the truth is that instances of apathy

exist and the faith of the public remains shaken and this makes us mistrust our

law enforcement agencies and shy away from reporting or aiding them.

A police force, wherever they are, is made up of amazing people and I respect

them a great deal. So, then are enforcement, agencies good for bad, friend or

foe? As mentioned before, it is entirely a matter of faith. Some suggestions for

the enforcement agencies are cited below, in order to win back the faith of the

general public-

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 It is the foremost duty of the enforcement agencies to lodge an First

Information Report (FIR). The police should never be reluctant to do

so in a genuine case.

 The cases which relate to women‘s special rights and offences

pertaining thereto should be handled with a very high level of

sensitivity.

 The police should publish literature regarding various rights of the

individual and related procedure for their curbing.

 The police can venture into other avenues, like targeting specific crime

and launching schemes to tackle them which involves interaction with

the community of potential victims.

 Investigations should not be lackadaisical. They should be sharp,

precise and effective.

 The number of all women police stations should be increased with

documentation being made easy and quick.

 Trials in cases involving the dignity of women should be handled with

care and sensitivity.

 The police should abandon the habit of always being late on the scene.

 Special attention should be paid to areas where khappanchayats

function.

 These pseudo courts thrive on the lack of faith of the people in the

enforcement machinery. They should work only under the light of the

judiciary be uprooted and rule of law must be established.

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 Establishment of Fast Track Courts should be given significant

encouragement to ensure negative gratification for criminals in the

form of sentences.

 Last but not the least, for effective investigation by the enforcement

agencies, scientific ways of investigation are very necessary, Hence,

modern scientific ways of investigation of crimes are very much

necessary in order to make progress in the working of investigation

agencies.

Cybercrime being global in character, generally affects the person far away

from the place of offence, may it be in the same country or some other

country. It, therefore, requires policing at international level as also the active

cooperation of the international community. The European Convention on

Cybercrime4 was indeed a praiseworthy attempt as it laid down guidelines to

be followed by the member states in combating cybercrime. The Convention

suggested measures to be initiated by the states for restructuring their cyber

laws to meet the new challenges.

It has been generally accepted that procedural aspect of the criminal law is the

main hurdle in tackling the problem of cybercrime effectively but at the same

time, substantive part of the cybercrime also needs to be redefined to fight

against ongoing cyber criminality. Out of a variety of cybercrimes, the

European Convention has chosen ten specific cybercrimes5 and urged the

member states to include them in their information technology laws and

provide a concrete mechanism to fight against them. But it is rather

unfortunate that many cybercrimes of a particular country are not treated as

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crime under the criminal law of other countries, which really pose a problem

when cross-country cybercrimes are involved. The solution to this problem

lies in enacting a global cyber law uniformly applicable to all the countries of

the world. The crux of the matter is that universally accepted standard

cybercrime preventive laws should not vary from place to place. A nation

wise survey of cyber law indicates that only a few countries have updated their

cyber law to counter the cyberspace crime effectively, while many of them

have not even initiated steps to frame laws for policing against these crimes.

This divergent approach of world nations towards the desirability of cyber law

poses a real problem in handling the internet crime and at the same time

provides ample scope for the cyber criminals to escape detection and

punishment. All the nations should therefore, realize the need and urgency for

generating awareness about the dangerous nature of cyber crimes which are

perpetuating illegal online activities in cyber space. Cyber criminality is

perhaps the deadliest epidemic spread over the world in the new millennium

which has to be curbed by adopting a global preventive strategy. An overall

global view of the cyber law indicates that many countries do have their

national legislation for combating cyber criminality, but they radically differ

from each other as a result of which, a particular cyberspace activity which is

considered as a criminal offence in one country may not be necessarily so in

another country. This variation in law provides loopholes for the cyber

offenders to escape punishment. Therefore, there is dire need for international

cybercrime legislation which could be uniformly acceptable by all the

countries to tackle the problem of cybercrime. Not only that, there should also

be an international policing agency for countering cyber

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offences.Broadlyspeaking, the law enforcement agencies all over the world are

confronted with four major problems while dealing with cybercrimes in a

network environment. The detection and prosecution of cyber criminals online

is hindered by the challenges, which may be technical, legal, operational and

jurisdictional. As regards technical challenges, cybercrimes such as hacking of

a website, stealing data stored in computers, espionage, exchange of

pornographic material, blackmailing etc. involve detection of source of

communication which is a complicated task. Therefore, the cyber criminals

find it easy to impersonate on the internet and hide their identity. The legal

challenge emerges from the fact that cyber criminality is no longer confined to

the developed countries alone but it has assumed global dimensions in recent

decades. The conventional legal techniques of investigation of cybercrimes are

inadequate particularly, in case of cross-country crimes. The problem becomes

more complex because of lack of any universally accepted definition of

cybercrime. Therefore, a cybercrime in a country may not necessarily be a

crime in another country. There are hardly 20 countries in the world which

have enacted comprehensive cyber laws. In the absence of an adequate

cybercrime laws, the cyber criminals carry on their illegal activities

undeterred. Therefore, effective handling of cybercrimes requires a legal

framework which is equally applicable to all the countries. The cyber laws

should also be responsive to the fast developing information technology. The

operational challenges faced by the law enforcement agencies because of lack

of adequate cyber forensic technology for dealing with cyber crimes constitute

another in-road which renders it difficult to collect and preserve sufficient

evidence against the person accused of cybercrime, thereby resulting in his

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acquittal by the court. The traditional modes of procuring evidence are

unsuited in case of cybercrime investigation because most of the evidence

exists in electronic form. Therefore, there is dire need to develop suitable

computer forensic mechanism for effective handling of cyber crime

investigation. The reason being that former are tangible and serve as best piece

of evidence before a law court. However, with the expansion of e-commerce

and legal recognition of e-contracts in business transactions, there is change in

the mindset of the people and they are gradually adapting themselves to the

new e-environment and finally switching over to paperless electronic

transactions. The jurisdictional challenge impeding the efficient handling of

cybercrime investigation result out of widespread inter-connectivity of the

computer networks and the supporting infrastructure such as

telecommunication information dissemination on the website etc. In fact,

jurisdiction is a broad concept which refers to whether a court has power to

adjudicate, i.e., whether it has personal jurisdiction to try the case and

territorial jurisdiction over the location or place where the crime is committed

or the parties concerned reside. In case of cross-country cyber dispute or

crime, the problem often arises as to the law of which country would be

applicable to the case in hand.

In view of the expanding dimensions of computer-related crimes, there is

need for adopting appropriate regulatory legal measures and gearing up the

law enforcement mechanism to tackle the problem of cybercrime with stern

hands. Even a short delay in investigation may allow cyber criminals enough

time to delete or erase the important data to evade detection, which may cause

huge loss to the internet user or the victim. That apart, the peculiar nature of

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cybercrimes is such that the offender and the victims do not come face to face,

which facilitates the criminals to carry on their criminal activities with

sufficient sophistication without the fear of being apprehended or prosecuted.

It is for this reason that a multi-pronged approach and concerted efforts of all

the law enforcement functionaries is much more needed for effective handling

of cybercrime cases. A common cybercrime regulatory law universally

acceptable to all the countries would perhaps provide a viable solution to

prevent and control cyber criminality. The process of crime prevention

essentially requires cooperation and active support of citizens, institutions,

industries and the government alike. Therefore, a sound strategy for

prevention of cybercrimes necessitates mobilization of community

participation in combating this menace. This calls for participative role of all

those who perceive that the growing incidence of cybercrime is a potential

danger to the society as a whole. It also calls for self protection initiatives by

the people who are vulnerable to cybercrimes. They must have adequate

knowledge and awareness about the nature and gravity of these crimes and the

dangers fraught by them. Obviously, media has an important role to play in

warning people against the possible dangers and evil effects of cybercrimes on

victims and also the nation and the safety measures which are necessary to

combat this high-tech criminality.8 Regulatory control through effective laws

is yet another measure of cybercrime prevention. It is possible to exercise

control over these crimes by effective implementation of laws by enforcement

agencies. The legal preventive measures may help in reducing the incidence of

cybercrimes provided they get community’s active support in exposing the

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criminals. Some other suggestions to prevent and reduce the incidence of

cybercrimes at domestic level are as follows:

Net Security be Tightened Up Computer technology has proved to be a boom

to the commercial world. Perhaps, it is the area which has been most

benefitted by the advent of computers. Most of the commercial, industrial and

business transactions are carried on through internet services at the national as

well as the international level. The increasing use of computers in the field of

trade and commerce has at the same time opened new vistas for the

perpetration of cybercrimes by the offenders for their personal monetary gain.

With the liberalization and globalization of economy, the business houses now

believe that there is a huge and profitable market for commercially exploiting

the networks. With the increased dependence on computer in commercial

field, most of the money transactions are being carried out with the help of

computer network making it possible for the cyber criminals to illegally

intercept and commit financial frauds. It is, therefore, necessary that an

adequate security mechanism be developed for safeguarding e-commerce and

e-banking against possible online frauds, forgeries, or misappropriation of

money etc.

First of its kind, recently the US along with the cooperation of other nations

has drafted the International Cyber Security Scheme. According to this 30-

page scheme if a nation’s security is threatened by cyber attacks then it is

lawful for that nation to use its defence forces against the aggressor.It is

alleged that in response to America’s declaration that any cyber attack on US

will be treated as a war against US, China had hacked e-mail accounts of

Senior Government Officials and Army Commanders of US. Internet search

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engine Google has accepted that such hacking was done from Zizan City of

China by using techniques of phishing and virus attacks. Though China had

denied such allegations and has said that it is strictly against cyber crimes and

is ready to help the world community in investigating cyber crimes.

As regards the legality of financial transactions on the internet, the Securities

Exchange Board of India (SEBI) vide its notification dated January 25, 2000,

has provided that trading of securities on internet will be valid in India but

there is no provision to this effect in the Information Technology Act, 2000

which provides legal validity and prevent security frauds and stock

manipulations over the internet. A specific provision for protection

Use of Encryption Technology It should be mandatory for all government,

semi-government and non-government commercial organizations which have

resorted to massive computerization for the transmission of information and

commercial transactions, to appoint well trained Information Security Officers

who should be responsible for overall protection of computer resources and

they should also be made accountable for any lapse in computer security. The

use of encryption technology may also help to protect data and

communications from unlawful and unauthorized access, disclosure or

alteration. It also helps to prevent crime by protecting valuable secret

information over inter-connected computer and networks. The law

enforcement agencies should therefore, develop and support the use of strong

and recoverable encryption services for protecting personal and business data

from being misused or stolen by miscreants. Similar to encryption, there is one

more technique known as ‘steganography’, which is used as a safeguard

against network invasion. It is a technique of obscuring information in a

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manner so as to prevent its detection. It involves writing that is not readily

discernible to the casual observer.

Firewall device is yet another tool which may be extensively used to provide

an alert against attempted intrusions in database. It is a software program

which monitors data flowing between one computer to another on the network.

Firewall device can be used to control the amount of data flowing over one’s

computer network.

Intrusion Management A new preventive strategy called as the ‘intrusion

management’ may be used for testing, detection and investigation of

cybercrime. It is a process which primarily aims at preventing intrusions in the

computr system thus providing effective e-security control mechanism.

One of the most common ways of tapping black money has been amnesty

schemes. There have been 12 such schemes between 1946 and 1997.Many of

them helped to convert huge sums of money into white without thepayment of

any tax66. During 1997 itself Rs. 33,000/- crore worth of assets 250 were

declared under the scheme67. Some suggestions to combat money laundering

have been added below :

 Identification of the various important sectors of the economy that

generate black money.

 Constant updating of causes and circumstances that lead to the

generation of such money and wealth.

 Identification of ways and means that are currently followed to convert

black money into white.

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 Introduction of methods to reduce the existing vast accumulation of

unaccounted income and wealth be best tapped without demoralizing

honest taxpayers.

 Effective and expeditious punishments for tax evaders.

 Ensuring honest compliance with tax laws.

 Moreover, any effective system to combat money laundering must be

obviously based on the following three principles :

 Increased international co-operation;

 Strengthened mutual assistance in criminal proceedings; and

 A guarantee that criminals laundering funds derived from illicit

activities will be brought to book and that they will be extradited,

where necessary.

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JOURNAL

 CBI Bulletin.

 Civil &Militaiy Law Journal.

 Cochin University Law Review.

 Criminal Law Journal.

 Delhi Judicial Academy Journal.

 Encyclopedia of Criminology.

 Gujrat Law Herald.

 Indian Bar Review.

 Indian Journal of Public Administration.

 Indian Police Law Journal.

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 Virginia Journal of International Law.

 Western Reserve Journal of International law.

 Information Technology Law Journal.

 Journal of Indian Law Institute.

 Journal of Legal Studies.

 Karnataka Law Journal.

 Kerla Law Times.

 Lawyers Collective.

 Nyay Deep.

 The Indian Journal of Criminology and Criminalistics.

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 The Journal of Criminal Law & Criminology.

STATUTES

 Indian Penal Code, 1860.

 Delhi Police Establishment Act 1946

 Indian Evidence Act, 1872.

 Infonnation Technology Act, 2000.

NEWSPAPERS & MAGAZINES

 Hindustan Times

 The Hindu

 The Indian Express

 The Nation

 Competition Wizard

 Frontline

 The Tribune

 Times of India

 The States

Website

 http://www.google.co.in

 http://www.merinews.com

 http://www.mit.gov.in

 http://www.indiacoe.nic.in

 http://www.netsafetv-nic.in http://www.cvberlaws.net

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 http://www.networksolution.com

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 http://www.cvbercash.com

 http://www.apiap.org/opinions/Iegal

 http://www.navi.org/pati/cvberobscenitv.html

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 http://www .terrorism .com

 http://www.cs.georgetown.edu

 htp://www.delhicourts.nic.in

 http://www.rrtd.nic.in

 httr://www.citchr.com

 http://www.legalser\dceindia.com

 http://www.crime-research.org

 http://www.oscsis.org

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