Syed Asifuddin and Others v. State of Andhra Pradesh and Another

Author: Sakshi Tulsyan, University of Petroleum and Energy Studies, Dehradun

Court- High Court of Andhra Pradesh

Case Number- Cri. Petn. Nos. 2601 and 2602 of 2003

Petitioners- Syed Asifuddin and others

Respondent– State of Madhya Pradesh

Citation- 2005 Cri LJ 4314

Judge- Justice V.V.S Rao

Facts

The Reliance Infocomm Ltd., under the scheme of Dhirubhai Ambani Pioneer, initiated an offer where a third-generation digital handset will be sold by the company and it would be available in the market with an eye-catching tariff plan i.e. for Rs. 10,500 and Rs. 3,350 will be paid along with it for three years. A lot of people were fascinated by this scheme which led other service providers to suffered a huge loss and this in a way made a way for other service providers to use illegal practices to gain profits.

The CDMA digital phones were hacked and tampered with fraudulent means by the staff members of TATA  Indicom’s, the petitioner when they were in the store which originally belonged to the second subscribers. Even by showing the better tariff plans, the customers of the second respondent were attracted. Thus, according to the previous terms and conditions the phone belonged to the second respondent and the customer for three years.

FIR was lodged by the respondent against the petitioner on 31-05-2003 under section 102B, 409 and 420 of the Indian Penal Code(IPC), 1860, Section 63 of the Copyright Act, and also in Section 65 of the Information and Technology Act,2000. In the year 2005, the employees of TATA Indicom filed two petitions praying for the same relief as was filed by the respondent.

Issues

• Can the court quash the investigation for the offenses related to Section 120B, 409, 420 of The Indian Penal Code, 1860?
• Whether the act of TATA Indicom employee of tampering with the mobile identification number which was integrated with the ESN and belonged to the reliance handset will be regarded as altering the computer source code?

Arguments put forth by the Attorneys

Petitioner’s Argument

It was argued by the learned counsel of the petitioner, Sri C. Padmanabha Reddy that changing the service provider or keeping the same is always upon the customer The handset of the respondent which was brought by the customers to the petitioners can also be started on the allotted mobile and it has a feature of providing two separate lines. Thus, petitioners’ mere activation will not lead to the crime under  Section 409 of the Indian Penal Code (IPC), 1860.

The counsel of the petitioner also submitted that the petitioner cannot be held under Section 420 of the Indian Penal Code (IPC), 1860 as there was no act of cheating. The allegation put forward by the respondent that petitioners tried to retain the phone deceitfully is inappropriate. He also submitted before the hon’ble court that the charge under Section 120B of the Indian Penal Code(1860) is misconstrued therefore inappropriate. It was also submitted by the counsel that Section 65 of the Information Technology Act, 2000 will not cover the ambit of definition of telephone handset therefore it would not fall in it. Lastly, the issue of copyright infringement will not be raised as it was not claimed by the second respondent that they have a copyright of the source code.

Respondent’s Arguments

It was argued by the learned counsel of respondent D. Seshadri Naidu that the FIR cannot be quashed until there is the completion of investigation as these are cognizable offenses and it involves several provisions which relate to different statutes. The counsel also submitted before the court that through the report of preliminary investigation, the petitioners were held liable for the above-said offenses. Countering the argument of the petitioner’s counsel, the counsel for the respondent stated that the Information Technology Act under the definition of computer also includes the definition of the handset.

Rule Applied

The present case was analyzed by taking into consideration of the various case laws. It was stated in the case of State of Haryana v. Bhajan Lal[1] that if the charges are filed under Section 120B, 409, and 420 of the Indian Penal Code, 1860 then a court cannot conduct a criminal trial or such a trial will surpass the judgment given by the Apex Court. In such cases, according to the information provided by the police, the court can quash the investigation moreover the police don’t have the power to investigate the case if it does not implies a cognizable offense.

Further, the court took precedence of the following cases which are  State of Tamil Nadu v. Thirukkural Permal[2], R.P. Kapoor v. State of Punjab[3], and stated that the criminal investigation cannot be quashed unless and until it is shown that the investigation by police into a complaint was illegal and would result in a miscarriage of justice.

Obiter Dicta by the Bench

The Hon’ble court opined that the source code of the computer can be used as evidence as it has been managed by a phone operator. Therefore, the source court can be used as a piece of evidence by the respondent. Further, the Court stated that as the allegations have already been made out against the petitioner under Section 65 of the Information Technology Act, 2005 thus it cannot be quashed by the court. The court also stated that according to Section 2(o)(ffc), reading Ss. 13 and 14 of the Information and Technology Act together, the computer program will be considered as an original work under Section 65 of it.

Judgment

The Hon’ble Court of Andhra Pradesh dismissed the criminal petition which was filed under section 63 of the Copyright Act and Section 65 of the Information technology Act, 2000 and it quashed the charges filed under Section 120B, 409, and 420 of the Indian Penal Code.  The court stated the police has to submit the investigation report within three months from the date of receipt of this judgment to the Metropolitical Magistrate.

[1] 1992 Cri LJ 527.

[2] (1995) 2 SCC 449.

[3] AIR 1960 SC 866: (1960 Cri LJ 1239).