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2005 Supreme(AP) 683
Andhra Pradesh High Court
Syed Asifuddin - Appellant
Versus
State OF A.P. - Respondent
Decided On : 07-29-05
Headnote:
Code of Criminal procedure, 1973 – Section 482 – Indian Penal Code, 1860 – Sections 409, 420, 120b – Infringement of Copyright –Information Technology act, 2000 – section 65 – Copyright Act, 1957 – Section 63 –These two petitions are filed by different persons seeking similar relief – Both the matters were admitted on the same day and since then both the matters are being listed together for being disposed of as such, this common order covers both the matters – The petitioners in both the matters seek the relief of quashing fir of Criminal Investigation department (C. I. D) Police – These two petitions came to be filed for quashing crime by the means of TATA Indicom –While admitting the petitions, this Court passed orders in Criminal Miscellaneous petition staying all further proceedings including investigation of the crime pending disposal of the main petition –The Public Prosecutor filed Criminal miscellaneous Petition for vacating the said order – The matters were finally heard at that stage itself and are being disposed of finally –Held, prima facie, if a person alters computer programme of another person or another computer company, the same would be infringement of the copyright –Again the entire issue in this regard is subject to the evidence that may be led by the complainant at the time of trial –This Court however, examined the submission of the learned Senior Counsel for the petitioners in the background of the provisions of the Copyright Act and observations made herein are not intended to decide the question one way or the other –The Trial Court has to deal with these aspects – As noticed hereinabove, unless and until investigation by the police into a complaint is shown to be illegal or would result in miscarriage of justice, ordinarily the criminal investigation cannot be quashed –Criminal Petitions dismissed
Key Points: - The court examined petitions seeking to quash FIR No. 20 of 2003 registered under Sections 409, 420, 120b of IPC, Section 65 of the IT Act, and Section 63 of the Copyright Act (!) . - The crime was registered based on a complaint alleging that other mobile service providers were wooing subscribers of Reliance India Mobile (RIM) through unethical and illegal practices, including reprogramming handsets (!) (!) (!) . - Investigation revealed that Reliance India Mobile handsets were allegedly being migrated to the TATA Indicom network by reprogramming, which was considered illegal due to agreements with handset manufacturers (!) . - Petitioners, employees of Tata Tele Services Limited (TTSL), argued that activating NAM 1 or NAM 2 on a handset brought by a subscriber of another service provider does not constitute a crime (!) . - The court found that offenses under Sections 409, 420, and 120b of the IPC were not made out as there was no dishonest appropriation or fraudulent inducement to deliver property (!) (!) . - The court determined that a cell phone, by definition, is a computer and its circuit board is a microprocessor, making it capable of performing computer functions (!) (!) . - Altering the Electronic Serial Number (ESN) of a cell phone handset, which is a unique number programmed during manufacturing, could prima facie attract the offense under Section 65 of the IT Act, as it relates to tampering with computer source code (!) (!) . - The court held that a computer program is an original literary work protected by the Copyright Act, and altering a computer program of another person or company would be an infringement of copyright (!) (!) . - Unless an investigation is shown to be illegal or would result in a miscarriage of justice, a criminal investigation cannot ordinarily be quashed (!) . - The criminal petitions were dismissed concerning offenses under Section 65 of the IT Act and Section 63 of the Copyright Act, but quashed for offenses under Sections 409, 420, and 120b of the IPC (!) .
What are the conditions under which a criminal investigation can be quashed?
What constitutes tampering with computer source documents under Section 65 of the IT Act?
What constitutes infringement of copyright in a computer program under the Copyright Act?
( 2 ) THE crime was registered against the petitioners on a written complaint given by the Head of Sales and Marketing wing of M/s. Reliance Infocomm Ltd. Hyderabad the second respondent herein. In the complaint, it is alleged that certain vested elements of the trade of mobile telephone services began to woo the subscribers of Reliance India Mobile (RIM) into various other schemes promoted by other similar service providers, which would have the impact on the image as well as the revenues of the second respondent. Reliance Infocomm under Dhirubhai ambani Pioneer Offer launched telephone services named as reliance India Mobile with a view to make communication affordable to the masses. The same was later modified and the scheme titled pobi , which is the most affordable in the market today. Under the said scheme, the subscriber gets a digital handset worth rs. 10,500/- as well as service bundle for three years with an initial payment of rs. 3,350/- and monthly outflow of meager rs. 6 ()0/ -. The subscriber also gets one year warranty and insurance for three years. The handset given to the subscriber is third generation digital handset with a host of features which are of first of its kind coupled with attractive tariff options. In view of this, the market response in twin cities has been phenomenal. This has an impact on the business of other service providers for the reason that those service providers attempted unethical and illegal practices for weaning away the subscribers of the second respondent.
( 3 ) IN the complaint, the modus operandi adopted by other mobile service providers is described as follows. The subscribers of the second respondent are attracted by making phone calls impressing upon them that the tariff plans and services provided by others are better than the services of Reliance Infocomm and also advise them that they have an option to shift the service provider by paying an amount of Rs. 3,000/- towards plan charges and deposits if desired are only Rs. 540/- towards activation fee. Certain unknown persons in Abids, Begumpet, Koti, himayatnagar and Malakpet are making the calls to the subscribers of second respondent. Once the subscriber agrees that he can keep a world class handset which is proprietary to Reliance and also enjoy the best tariff plan of the competitor, he is asked to meet any of the business associates of rival service providers. At the rendezvous, the customer is asked to wait for an hour and an usher carries the handset to an undisclosed location in secunderabad for conversion process, which takes about 45 minutes to an hour a half. During this time, ESN number of Reliance instrument is hacked by reprogramming and the subscriber is given the handset and instructed to switch off and switch on the handset later in the day and start enjoying the new services.
( 4 ) AFTER receiving above written complaint lodged by the second respondent through its Head of Sales and Marketing wing, the Senior Executive Officer of criminal Investigation Department, on instructions of the Additional Director general of Police, CID, registered Crime no. 20 of 2003 under various provisions of ipc, IT Act and Copyright Act as mentioned hereinabove and took up investigation. The crime was registered on 31-5-2003. Investi
