The allegations – counter allegations in the Kangana Hrithik episode are mounting everyday with roping of opinions from lawyers, forensic experts and the police. With each succeeding day, the personal communications between the parties have become subject matter of the public debate. Whether the police action in the present case is really needed to be called for, as the police & forensic experts are changing the fate of the episode. The emails alleged to have been received by Kangana from a fake email id, the offence which was covered by Section 66A(c) Information Technology Act, 2000 and the said section have already been declared unconstitutional by the Supreme Court in the case of Shreya Singhal Vs. Union of India (UOI) [MANU/SC/0329/2015].
The allegations as revealed in the media are now not cognizable, though it may appear to fall in Section 66C IT Act but the perquisite requirement of ‘Fraudulently or Dishonestly’ as defined under IPC and more particularly explained by the Supreme Court in the judgment of Dr. Vimla Vs. Delhi Administration [MANU/SC/0163/1962], are lacking and there is no provision under the IT Act which makes it a cognizable offence. Even the Apex Court considered the offence u/s 66A(c) “any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages”, which covers the present issue, in detail and declares it unconstitutional. There was no occasion for the police to take cognizance of such an issue, once the same have been quashed by the Supreme Court.
It is a settled law that a thing which cannot be done directly, cannot be done indirectly. After the Section 66A IT Act being declared unconstitutional, the present case have been registered by Police under other provisions, simply by bypassing the verdict of the Supreme Court as the court has specifically held that the provision is violative of the freedom of speech and expression as provided under Constitution of India. Rather, infact, by resorting to such twisting measures, the police is undermining the authority of the verdict laid down by the Apex Institution in the country and upon analyzing minutely; it may amount to act of contempt of court.
The forensic report in Hrithik Roshan case as reported in media, may not yield the desired purpose as the account is a web mail account which not only can be accessed from any device but also leaves a very limited trail on that device. The evidence which normally found is the access to the server but the same also depends upon the preservation of logs during that particular period and if the logs are scientifically deleted, there would be no evidence. Normally individual user, hardly, maintain any policy for preservation of logs and thus, evidences of accesses to the server are normally available if the forensics is done within few days of accesses and in case of delay, the digital evidence being fragile is automatically overwritten.
The Police does not require the access to the laptop of Kangana to trace the source of the email and the only requirement is email alongwith header and a certificate u/s 65B Indian Evidence Act, 1872 to prove the email. The news report as available in the media and also the current scenario in the country regarding electronic evidence reveals that though the e-governance has prompt the society to use the latest technology but as far as the investigations and the forensic practices are concerned, they are lacking the speed of technology. Further, one of the claims that there are no means of hacking in the laptop and as such no hacking was done, is meaningless as various hackers, freelancers are available in the grey market and even such services can be availed on the Darknet. Once a person get credentials of the email and access the account illegally, rarely any foot print remains and even a petty cyber criminal knows that acts of hacking are not committed from known devices but from unknown devices.
Whether the ongoing investigation would lead to any logical conclusion depends upon receiving the information from the Foreign Service Provider as the only footprint gathered by the Police so far. In US, the logs are being maintained for six months and in India, it is kept for one year and thus, only if the police is able to get the information regarding the email/access for last six months immediately, the origin could be traced which again depends upon other factors such as use of Proxy Server or IP Spoofing and thus, the possibilities are quite dim. The kind of harassment which is alleged, is probably which every common man suffers as every citizen is receiving so many mails as spam, for lottery, phishing and even upon reporting by such individual, the police does not register an FIR despite the fact that most of the phishing mails comes with a clear intent of committing the fraud and squarely falls under Section 66C of the IT Act.
The action of the police asking Kangana for inspection of her laptop is not permissible under the law, except by twisting the law as aforesaid and amounts to infringing into the privacy of individual and infact, the news coming into media, suggesting that the actress is avoiding the scrutiny goes to defame her by the illegal acts of Police. Exposing the emails of Kangana by the Police on the pretext of so called illegal investigation has an inherent risk as creating the fake mails is something like a child play and it will expose Kangana to a big defamatory risk which cannot be reversed if these emails were found to be fake. All the allegations as coming into media, if weighed in terms of law laid down in the Shreya Singhal case by the Apex Court does not justify any police action. It is clearly in violation of freedom of speech and expression and are being used as a conduit to do something which otherwise is not permissible.
In case of defamation before the Court, a party may be compelled to produce the relevant evidence and in the absence, the court may draw adverse inference. But the projection in media showing the outcome or conducts of not allowing the inspection of laptop which may be due to other privacy reasons, itself inflict punishment in the form of defamation which is much disproportionate to the act complained of and the police are twisting arms illegally for these ulterior motives.
It is stated that the legal action is being taken to establish the truth- but whether law allows it. If it would have been intention of legislature, the defamation itself would have been criminal offence. Whether the police is registering the cases to establish truth into various other complaints which are being filed with the police in cases of defamation or allegations which were earlier taken cognizance under Section 66A of the IT Act. Infact, the intended act of recording the statement and inspecting the laptop would amounts to establishing the issues without legal scrutiny which otherwise would have been decided in the court proceedings under a legal procedure and now, the police by giving its own opinion from the illegal action would infact prejudice the court proceedings which may be invoked by the parties at a later stage.
The police does not register the cases into cyber offences which actually are serious and even affect the society at large i.e. Phishing, Hacking, Child Pornography etc. However, entertaining such complaints has become a practice due to underlying corrupt/ulterior motives wherein the contention is to leverage the parties in terms of collection of evidences which otherwise would not be possible or to create leverage to a particular party through biased opinion on manipulative or half baked outcome which infact seriously prejudice the rights of the opposite party.
If such actions are permissible, then anyone who wants to peep into privacy of other can exploit such gaps by getting cases registered and even in such cases, the law laid down by the Apex Court is overlooked by the police to favour a party. The police needs to make accountable for such actions and liable for damages otherwise the protection of privacy from such illegal act would be rampant. The Police blatantly floated settled law by playing gimmicks of words and created the platform for having their own dominion which otherwise does not exist in the legal framework and the Supreme Court has already held that such act itself are in violation of freedom of speech & expression even does not deter these investigation agencies who used these gaps as shield to give legitimate color to these unlawful acts.