IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 WP(C).No. 33912 of 2009(Q) ------------------------------------------- PETITIONER(S): ------------------------- M.ADINARAYANA, FLAT NO.7F, MANDALAY POINT, SI APARTMENTS, EDAPALLY BYE PASS, KOCHI. BY ADV. MR.NIRMAL. S RESPONDENT(S): --------------------------- 1. THE COMMISSIONER OF POLICE, OFFICE OF THE COMMISSIONER OF POLICE, HIGH COURT JUNCTION, ERNAKULAM. 2. INVESTIGATION OFFICER, CYBER CELL, POLICE HEADQUARTERS, MARINE DRIVE, ERNAKULAM. 3. BHARTI AIRTEL CELL LTD., REPRESENTED BY ITS MANAGER, AIRTEL HOUSE, 28/243 NEAR MANORAMA, PANAMPALLY NAGAR, COCHIN. R1 & R2 BY GOVERNMENT PLEADER MR. S.U. NAZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C).No. 33912 OF 2009 =========================== Dated this the 18th day of February,2010 JUDGMENT This petition is filed under Article 226 of the Constitution of India for a writ of mandamus directing respondents 1 and 2 to register a crime on Ext.P3 complaint filed before the Commissioner of Police, Ernakulam alleging that petitioner is a subscriber to the internet/broadband service provided by the third respondent. When he received a bill for Rs.16941.35 as he did not use the internet so as to create such a huge liability, he submitted a complaint to the third respondent service provider which yielded no response and later he received another bill for the period from 26.3.2009 to 25.4.2009 for Rs.75,193. Though ordinarily the amount due used to to be Rs.700/-, and as the petitioner W.P.(C)33912/2009 2 apprehended that without the permission or knowledge of the petitioner somebody secured access to the computer net work and caused extensive downloads, which is an offence under section 43 of Information Technology Act, the case has to be investigated. Petitioner contended that in spite of Ext.P3 complaint no crime was registered though Ext.P3 was sent to the Cyber Cell and therefore a writ of mandamus is to be issued to register a crime and to conduct a proper investigation. 2. The Sub Inspector of Police, Cyber Cell, Kochi filed a statement that on getting the complaint as part of the investigation they examined the wireless router which is made in China Router and the security log was not enabled in the router, and consequently the log details are not available, which is an inevitable data to analyze whether any unauthorized access to be happened. It is also stated that the service provider Engineer reported that according to their mode of W.P.(C)33912/2009 3 net accessing, the user can access the internet only through the particular modem having username and password and therefore their assumption is that laptops may be infected with virus which sometimes may cause unwanted downloads of internet or as he is using the W-Fi connectivity without enabling security features, somebody residing around 100 metres could have access to the internet connectivity unauthorizedly and enquiry is going on to trace the truth behind the complaint of excess usage of internet connectivity. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. When the case of the petitioner is that in spite of a complaint, the case is not registered and case is not being investigated, as held by the Apex Court in Sakiri Vasu v. State of U.P (2008(1) KLT 724) remedy is to file a complaint before the Magistrate under section 156(3) of the Code of W.P.(C)33912/2009 4 Criminal Procedure. Without exhausting the remedy, petitioner is not entitled to approach this court under Article 226 of the Constitution of India. In such circumstances, the petition can only be dismissed. But it is made clear that the Cyber Cell may continue the investigation to arrive at the truth. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006