IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 WP(C).NO. 28893 OF 2010(Q) ---------------------------------------- PETITIONER(S): --------------------- VIVEK.V, S/O.R.VIJAYAN, AGED 34 YEARS, MAROTTU MOODU, KONGAL, PARAVOOR P.O., KOLLAM. (OFFICE: FRANCHISEE MANAGER, INDIA INFOLINE LTD., SAHIL SHOPPING CENTRE, THEKKUMBHAGOM ROAD, PARAVOOR P.O., KOLLAM DISTRICT). BY ADV. SRI.C.K.SAJEEV SRI.SHYAM PADMAN SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU SMT.M.LISHA RESPONDENT(S): ------------------------- 1. THE GENERAL MANAGER, B.S.N.L., VELLAYITTAMBALAM, KOLLAM-691 012. 2. THE DY.GENERAL MANAGER (O) & CPIO, BSNL, KOLLAM-691 012. 3. THE DIVISIONAL ENGINEER (BROADBAND), BSNL, CHINNAKKADA, KOLLAM-691 001. 4. THE SUPERINTENDENT OF POLICE, KOLLAM-691 001. 5. THE INSPECTOR GENERAL OF POLICE, HEAD OF CYBER CELL KERALA, KANNUR-670 001. 6. THE SUB INSPECTOR OF POLICE (CYBER CELL), KOTTIYAM POLICE STATION, KOTTIYAM, KOLLAM-691 571. 7. C.DAC, PB NO.6520, VELLAYAMBALAM, TVM.-695 003, REP. BY ITS DIRECTOR. ADV. SRI.V.R.KESAVAKAIMAL, SC, BSNL FOR R1 &3 BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.28893 of 2010 ==================================== Dated this the 31st day of January, 2011 J U D G M E N T This petition is filed under Section 226 of the Constitution of India to issue a writ of mandamus or any other appropriate writ, order or direction commanding respondent Nos.5 and 6 to conduct a proper enquiry/investigation into the allegations and facts highlighted in Ext.P12, complaint with the assistance of respondent No.7 within a time frame to be fixed by this Court. According to the petitioner he is a SEBI registered Broker and has been conducting share broking firm under the name and style “India Infoline Ltd. He has availed a telephone connection with number 0474-2532682 and Broadband Account No.20507781 from respondent Nos.1 to 3 for his business and installed in his business house. Petitioner says that the MAC ID number of the Modem purchased by him from respondent Nos.1 to 3 on terms of the agreement is 00:08:5c:9c:f4:52 while to his surprise he noticed two other numbers in his modem referred to in paragraph 5 of the Writ Petition. According to the petitioner difference in the MAC ID number is the result of mischief. Petitioner apprehends that if any other person does any criminal act making use of those W.P(C) No.28893 of 2010 -: 2 :- MAC ID numbers he will be held responsible for that. It is also the contention of petitioner that the said act allegedly indulged by respondent Nos.1 to 3 amounted to offences punishable under Sec.66e, 72A and 77 of the Information Technology Act. Learned counsel pointed from Exts.P6 and P10 that it is admitted by respondents 1 to 3 also that MAC ID number of petitioner ends with ‘52’ (as stated in paragraph 5 of the Writ Petition) but in paragraph 6 of the counter affidavit filed by respondent Nos.1 to 3 they have come with a new case which cannot be accepted. In the circumstances it is prayed that respondent Nos.5 and 6 may be directed to conduct proper enquiry/investigation into the matter with the assistance of respondent No.7. Learned counsel for respondent Nos.1 to 3 contended that circumstances under which there happened to be different MAC ID numbers stated in paragraph 5 of the Writ Petition is explained in the counter affidavit and there is no mischief on the part of respondent Nos.1 to 3 in the matter. Learned Public Prosecutor submitted that the dispute in the present petition is purely between petitioner and respondent Nos.1 to 3 and that the Cyber wing of the police could interfere only when commission of offence is involved. 2. Assuming that any offence is committed by W.P(C) No.28893 of 2010 -: 3 :- respondent Nos.1 to 3, remedy is not to file a petition under 226 of the Constitution but to approach the learned Magistrate concerned and file a complaint under Section 190 of the Code of Criminal Procedure (for short, “the Code”). Assuming that on Ext.P12, complaint police has not taken action still I am not inclined to think that petitioner is without a remedy – he can approach the learned Magistrate as aforesaid and if any such complaint is preferred and it discloses any offence necessarily learned Magistrate has either to conduct enquiry under Sec.200, call for a report under Sec.202 of the Code or forward the complaint to the police for investigation under Sec.156(3) of the Code. The proper remedy of petitioner being that, it is not necessary for this Court to interfere under Article 226 of the Constitution. Resultantly without prejudice to the right of petitioner if any to approach the learned Magistrate as provided under law this petition is closed. THOMAS P. JOSEPH, JUDGE. vsv