Of ‘Domain Experts’ and Perceived Inadequacies in the Law

Recent opinion on the need to integrate domain experts into the investigation of cyber crime, most notably instances of cyber terrorism, have been reported in the media.¹ It has often been felt that the Indian legal system, notably the Code of Criminal Procedure, 1973 (“Cr.P.C.”) does not allow for cyber-security experts to be involved in the process of evidence collection, as such powers are only provided to the police. This has led officials of special agencies such as the National Investigation Agency (“NIA”) to point out the need for amendments to current law, or the creation of additional statutory mechanisms. This short comment seeks to elucidate upon the existent legal position, and makes an argument for the creative use of provisions conferring investigative powers, to overcome this perceived problem.

The NIA was created in 2008 and enjoys overarching powers to investigate, or to take over investigations into offences that relate to national security and terrorism.² Section 6 of the NIA Act gives the Union Government overriding powers over The Police Act, 1861 in constituting the agency, and by extension, provides it power to recruit and train agents in the special techniques required to investigate cybercrime. Further, there is no bar on the recruitment of agents who may already be trained in such technology. It is abundantly clear that the NIA is considered an investigative with all powers of the police under the Cr.P.C. to collect evidence.³ Therefore, within the framework of the law itself, the most efficient method of addressing the perceived need for such experts at the stage of investigation is by making them a part of the agency, or the investigative force, rather than to create a new category of officers who are not the police, but are given investigative roles nevertheless.

To buttress the point made above, I can refer to the test consistently applied in Indian law to determine who a police officer is. The Supreme Court has held that only officers of the agency that is empowered to file a final police report under Section 173 of the Cr.P.C. are to be considered police officers. This may exclude officers who have powers to detain, arrest, search, and seize property, such as officers of revenue, from being considered police officers.⁴ The NIA is empowered under law to carry the investigation to its conclusion, viz. to file the police report before court, and therefore, if domain experts are integrated into the agency, the perceived problem finds an easy and efficient solution.

It has also been stated in various quarters that Indian law as it currently stands does not allow for mutual legal assistance between Indian and foreign investigative agencies, and special law is needed to facilitate the same. However, the Cr. P.C. had been specifically amended for this purpose in 1990, and courts are empowered, upon a request for the same made by the police, to have letters of request for assistance to be issued to foreign investigative agencies, through the Union Government, and material thus received is treated on par with evidence collected during the investigation. Thus, one may point out that adequate mechanisms exist under law to ensure that international investigations can be mutually carried out between nations. A useful exercise would probably be to ascertain how these provisions can be best employed by Indian investigative agencies, rather than to aim at changes to the law, or to create additional legislation for the purpose.

As a last point, it may be pointed out that materials collected during investigation⁵ are not evidence till they are produced and proved in court during trial. Evidence which may be of a technical nature outside the ordinary expertise of a court is adduced through the examination of experts trained in the field.⁶ It must be understood that the integration of experts into the investigation does not dispense with the requirements of proof that trials demand, and which arise subsequent to the investigation.

About the Author:

Kunal Ambasta is Assistant Professor of Law at the National Law School of India University.

Endnotes:

1. Devesh K. Pandey, “Cyber terrorism cases: NIA needs additional infra and domain specialists, say experts” The Hindu, September 18, 2021.
2. Statement of Objects and Reasons, The National Investigation Agency Act, 2008. Act No. 34 of 2008.
3. Sections 3, 6, The National Investigation Agency Act, 2008.
4. Romesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940. Illias v. Collector of Customs, AIR 1970 SC 1065.
5. Section 166A, Cr.P.C. Act No. 2 of 1974.
6. Section 45, The Indian Evidence Act, 1872. Act No. 1 of 1872.