ILNU NATIONAL MOOT COURT COMPETITION

Organised by

INSTITUTE OF LAW
NIRMA UNIVERSITY

Mrs. Vandana is a professional in the Auckworks Company dealing with

Computer Software. She is married to Mr. Sujay who is a lawyer by
profession. She is an active blogger and often chats on the internet but one
night Vandana was unable to log on to her account. Her friend, Ms. Sanjana
called her up and informed her that a chat message was circulating from her
account which showed a very vulgar chat of hers with an unknown guy
called Mr. Shiv Sharma. Further, she informed her that she has reportedly
admitted in the chat that she was having an affair with a guy called Shyam
for the last two years behind the back of her husband which was sent to all
her contacts and her husband’s contacts as well. The interesting factor was
that the chat had been dated 3rd October 2008 while the mail has been
circulated on the 5th of October 2008.

Mr. Sujay was disturbed with this fact and insisted to sever all ties with
Vandana, who, on the other hand, lodged a F.I.R. with the cyber crime cell
of the police in Delhi on 7th December,2008. During the course of
investigation it was revealed that there was absence of any specific IP
address in India as the blogger had logged through a Proxy Server in
Canada. After three months, the police could not locate any person by the
name Shiv Sharma, but the person called Mr. Shyam, who was a Diplomat
of Kenya in India, had been traced. The Ministry of Foreign Affairs

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meanwhile issued a demarche to the Consulate of Kenya at Delhi. The police
meanwhile had sealed all the electronic records of Mrs. Vandana and was
treating them as evidence.

The police charge sheeted Mr. Shyam on 21st July,2009 for cyber hacking
based on the electronic records of Mrs. Vandana available to them. Mrs.
Vandana meanwhile broke down mentally as the lawyer she has consulted
could not suggest her some proper solution. She, however, accused Shyam
for defaming her by way of circulating the chat messages to everyone in her
contact list.

Shyam denied all the allegations including the ones made by Vandana. In
statement Mr. Shyam has contended that he was a good friend of Mrs.
Vandana but they were not having any affair and that they both were
unaware of any Shiv Sharma. The prosecution contended that Shyam had
hacked the account of Mrs. Vandana with the intention to separate Vandana
from her husband and also attempted to defame her.

The chat had been done through SKYPET network a Proxy Server in
Pakistan occupied Kashmir (PoK). The police issued a notice for disclosure of
the entire transcripts of chats as well the details of users. However, SKYPET
has its headquarters in (PoK) and had refused to hand over any details
regarding their users on any account. The only record which the prosecution
had was the auto saved chat messages on Vandana’s computer which had
been there between Vandana and Shyam, no such records were recovered
from the computer confiscated from cyber cafe. In those chats it has been
seen that Shyam had consistently been saying that he loves Vandana and
can go to any extent to get her from the clutches of her husband.

The prosecution contends that Shiv Sharma and Shyam is the same
individual and Shyam had planned to break all the ties between Vandana
and her husband and thus get her for himself.

When the case was put forth before the court for trial, the accused
contended that the electronic records provided could not be treated as
evidence according to the Indian Evidence Act, 1972 and also that, a chat

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which had been recorded on a foreign server cannot be treated as a piece of
evidence in this regard. The defence further contended that on the alleged
date i.e. 3rd and 5th of October he was in the Consulate Office of Tanzania at
Delhi and he had also produced a log book of the Consulate as evidence to
show that he was at Consulate. Besides, the trial court concluded that the
Information Technology Act, 2000 does not have any specific provision to
punish a person based on the facts of the given case. The Trial Court has
acquitted him from all charges completely ignoring the issue of defamation.

The State has now moved in appeal before the Delhi High Court to prosecute
Shyam for the offences of cyber hacking and cyber defamation, the accused
pleads that the High Court does not have any jurisdiction in this case as the
Cyber Tribunal has been vested with the jurisdiction to deal with these
cases. Besides, the High Court cannot go back to the facts of the case and
deal with merits in order to come to a judgment and the Trial Court has
been right in deciding that the electronic records cannot serve as evidence.

However the petitioner relied upon the doctrine of exclusive knowledge and
contended that burden of proof is reversed. Therefore accused was under a
liability to prove his innocence and show that he had not done any of the
chats to which accused contends that the exclusive theory will not hold good
in this case as he was not present during the time of the chat in contention
and that he could not be made to give proof incriminating against him in
this regard.

The Appeal is set for hearing before Hon’ble Delhi High Court on 26th March
2011.

Note: The teams are required to prepare a case from both the sides.