Jurisdiction in Cybercrimes and Civil Disputes

Introduction

With the advent of the internet, the resolution of disputes arising in cyberspace has become tricky. When any civil dispute arises where partial or whole cause of action arises through the medium of internet the preliminary issue to decide is the jurisdiction of court to adjudicate the said dispute.

When any cybercrime arises, the preliminary issue arises is, where would be the jurisdiction of the police station to register the FIR. Then accordingly the case shall be adjudicated in the District Court concerned under which such police station comes.

Extraterritorial jurisdiction — Cybercrimes

Section 1(5)¹ of the Nyaya Sanhita, 2023 (BNS)(corresponding Section 4² IPC) states—

The provision of this Sanhita apply also to any offence committed by—

(a) any citizen of India in any place without and beyond India;

(b) any person on any ship or aircraft registered in India wherever it may be; and

(c) any person in any place without and beyond India committing offence targeting a computer resource located in India.

Explanation.—In this section the word “offence” includes every act committed outside India which, if committed in India, would be punishable under this Sanhita.

Section 75³ of the Information Technology Act, 2000 (IT Act) further states that the Act shall apply to an offence committed outside India by any person if the act constituting the offence involves a computer, computer system or computer network located in India.

Section 75 of the IT Act, 2000 is wider in ambit than Section 1(5) of the Nyaya Sanhita, 2023 as the former would include jurisdiction in case of offences committed abroad which involve a computer, computer system or computer network located in India, and not just where the computer resource targeted is located in India as is the case under BNS.

However, Section 75 of the IT Act, 2000 have its own limitations. For instance, Section 75 appears to be ineffective on the ground that if an act is an offence or contravention under this Act and is committed by a person from outside India and which is affecting any computer or computer system or computer network in India and that act is not an offence in that country, then any judgment passed by an Indian Court may not be enforced by the Court of that foreign country because that foreign court may not accept the principle of extraterritorial jurisdiction as given under Section 75 as that Act in that country is not considered unlawful.

Section 199⁴ of the Nagarik Suraksha Sanhita, 2023 (Corresponding Section 179⁵ CrPC) states—

An act being an offence by reason of anything done and of a consequence ensued, the offence may be inquired into or tried by a court in whose local jurisdiction—

1. such thing was done; or

2. the consequence has ensued.

Section 202⁶ of the Nagarik Suraksha Sanhita, 2023 (BNSS) states—

Offences of cheating by letters, etc. and, cheating and dishonestly inducing delivery of property, may be inquired into or tried by any court within whose local jurisdiction—

1. the letters were sent or received; and

2. the property was delivered by the person deceived or was received by the accused.

Case laws: Ajay Aggarwal v. Union of India⁷.

Fact: The appellant was a Dubai-based NRI who, along with 4 others, conspired and cheated Chandigarh Bank and got foreign letters of credit issued through the bank.

Held: There is an illegal act of dishonestly inducing the bank. A foreign national is amenable to jurisdiction under Section 179 CrPC (now Section 199 of the BNSS) and Section 182⁸ CrPC (now Section 202 of the BNSS) since the offence was committed in Dubai and the consequence ensued in Chandigarh.

Jurisdiction in civil disputes

Section 16⁹ CPC states — Suits to be instituted where subject-matter situate.— Subject to the pecuniary or other limitations prescribed by any law, suits—

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the court within the local limits of whose jurisdiction the property is situate:

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Explanation.—In this section “property” means property situate in [India].

Section 20¹⁰ CPC— Other suits to be instituted where defendants reside or cause of action arises.—Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Section 13¹¹ of the IT Act, 2000 only explains and clarifies, inter alia, when the despatch and receipt of electronic records take place and is meant purely for ascertaining the time of despatch and receipt of information, which is a relevant factor in many contracts. Section 13 of the IT Act, 2000 therefore, only offers a framework for understanding the formation of e-contracts in India. It does not, in any way, alter or modify the existing substantive law of contract. In order to ascertain the formation of electronic contracts, one has to read Section 13 together with Section 4¹² of the Contract Act, 1872 which enunciates certain rules regarding the communication of proposals, acceptance and revocation.

For example, in the case of an acceptance made by an electronic record, a combined reading of the two sections will evolve the following rules. The communication of an acceptance is complete as against the offeror, when the electronic record is despatched such that it enters a computer resource outside the control of the originator (acceptor’s computer resources) and as against the acceptor, when the electronic record enters any information system designated by the offeror for the purpose, or, if no system is designated for the purpose, when the electronic record enters the information system of the offeror, or, if any information system has been designated, but the electronic record is sent to some other information system, when the offeror retrieves such electronic record.

Example: (a) A proposes, by e-mail, to sell a house to B at a certain price. The communication of the proposal is complete when B receives the mail.

(b) B accepts A’s proposal by e-mail. The communication of the acceptance is complete, as against A when the e-mail is sent; as against B, when the mail is received by A.

(c) A revokes his proposal by e-mail. The revocation is complete as against A when the e-mail is sent. It is complete as against B when B receives it. B revokes his acceptance by an e-mail. B’s revocation is complete as against B when the e-mail is sent, and as against A when it reaches him.

The Supreme Court of India, recognising the distinction between “postal rules” and “receipt rules” as elaborated in Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas and Co.¹³, had held that Section 4 is applicable only in non-instantaneous forms of communication and does not apply to instantaneous forms of communication. Therefore, it may be noted that this method is useful only for non-instantaneous forms of communication like contracts concluded by e-mail and may be inapplicable in instantaneous forms like “web click” contracts. In the case of instantaneous forms of communication, it has been held that a contract is formed when the offeror receives the acceptance. Therefore, in the virtual world, an offer or acceptance is complete when the addressee is in receipt of the electronic record as defined in Section 13(2) of the IT Act, 2000.

E-commerce dispute

Disputes are usually settled within the physical territory where one or both of the parties are located. However, with an online enterprise, customers could be located anywhere in the world. Now the biggest question that comes to one’s mind is how does an enterprise cope up with such broad exposure. To verify the consumer’s location is virtually impossible. A consumer may even be able to pay for services anonymously using the digital equivalent of cash e.g., eCash. It is pertinent to note that where goods require a physical delivery, an online enterprise can restrict its customer base to those jurisdictions where it is delivered but with digital goods and services that are delivered online, this is almost impossible, and the enterprise may have to rely on the truthfulness of the customer’s information regarding their location.

Example: A motor vehicle manufacturer makes several online transactions such as buying tires, glass for windscreens, and rubber hoses for its vehicles. If the supplier fails to perform its obligation within the stipulated time-limit this may lead to an e-commerce dispute.

Indian statutes and e-commerce jurisdiction

Mr A, a person residing in America, provides an online service to the consumers all over the world. If Mr A commits an offence under the IT Act, 2000, then also he can be sued in Indian courts. The IT Act, 2000 attempts to change outdated laws and provides ways to deal with cybercrimes.

The IT Act, 2000 attempts to change outdated laws and provides ways to deal with cybercrimes. Let us have an overview of the law where it takes a firm stand and has been successful in the reason for which it was framed.

The IT Act legalises the e-mail and gives it the status of being a valid form of carrying out communication in India. This implies that e-mails can be duly produced and approved in a court of law, thus can be a regarded as substantial document to carry out the legal proceedings. Example: If, Mr A offers Mr B to provide transport services via e-mail and Mr B subsequently in his reply affirms the same via e-mail itself, then this can be considered as valid means of carrying out communication.

The IT Act has recognised e-mail contracts as legally valid and binding. It particularly mentions that a contract cannot be deemed invalid solely on the basis of it being an online exchange of offer and acceptance. Section 10-A¹⁴ of the IT Act, 2000 hints at the validity of e-mail contracts.

Section 10-A of the IT Act: Validity of contracts formed through electronic means.— Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.

In case of disputes arising on the issue of jurisdiction on the communications being done through e-mails and contract being exchanged through e-mails, the same shall be adjudicated as the contract being done in writing subject to fulfilment of following conditions:

1. First, the terms and conditions of the contract must be agreed to by both the parties on the acceptance of an issued offer.

2. Second, intention to create a legally binding contract must be present.

3. Third, the vital element of consideration must be agreed upon.

In RSDV Finance Co. (P) Ltd. v. Shree Vallabh Glass Works Ltd.¹⁵ It has been held by the Supreme Court that:

9. We may also consider the effect of the endorsement “subject to Anand jurisdiction” made on the deposit receipt issued by the defendant. In the facts and circumstances of this case it cannot be disputed that the cause of action had arisen at Bombay as the amount of Rs 10,00,000 itself was paid through a cheque of the bank at Bombay and the same was deposited in the bank account of the defendant in Bank of Baroda at Nariman Point, Bombay. The five post-dated cheques were also issued by the defendant being payable to the plaintiff at Bombay. The endorsement “Subject to Anand jurisdiction” has been made unilaterally by the defendant while issuing the deposit receipt. The endorsement “subject to Anand jurisdiction” does not contain the ouster clause using the words like “alone”, “only”, “exclusive” and the like. Thus, the maxim expressio unius est exclusio alterius cannot be applied under the facts and circumstances of the case and it cannot be held that merely because the deposit receipt contained the endorsement “subject to Anand jurisdiction”, it excluded the jurisdiction of all other courts who were otherwise competent to entertain the suit.