IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 WP(C).No. 3191 of 2008(E) ------------------------------------- PETITIONER: ------------------- PROF.K.G.VARGHESE, S/O.GEEVARGHESE, AGED 64 YEARS, KUMARANCHERRIL HOUSE, PUSHPAGIRI ROAD, THIRUVALLA PATHANAMTHITTA DISTRICT. BY ADV. SRI.C.S.MANILAL RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, VAZHUTHACADU, THIRUVANANTHAPURAM. 3. THE DEPUTY SUPERINTENDENT OF POLICE, THIRUVALLA. GOVERNMENT PLEADER SRI.C.M.KAMAPPU FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 3191/2008 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE E- MAIL PRINTOUT. EXT.P2:- COPY OF THE LETTER DT. 2.1.07. EXT.P3:- COPY OF THE COMPLAINT TO THE DIRECTOR GENERAL OF POLICE DT. 8.3.07. EXT.P4:- COPY OF THE COMPLAINT TO THE INSPECTOR GENERAL OF POLICE DT. 7.6.07. EXT.P5:- COPY OF THE JUDGMENT. EXT.P6:- COPY OF THE FIR DT. 19.10.07. EXT.P7:- COPY OF THE MAHAZAR DT. 7.11.07. EXT.P8:- COPY OF THE REPORT DT. 27.9.07. EXT.P9:- COPY OF THE STATEMENT DT. 2.4.08 FILED BY PETITIONER /TRUE COPY/ P.S. TO JUDGE tss A.K. BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P (C).No. 3191 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of June, 2008 Judgment Petitioner is a retired college Professor. He claims that he is a member of the Pradhinidhi Sabha (Governing Body) of St.Thomas Evangelical Church of India and also of the Education Board of the Church , apart from being a member of the Sabha Council of the Church. 2. It is contended by the petitioner that during March 2007 he was informed by some members of the Church that they had received Ext.P1 print out in the E mail containing certain defamatory and derogatory imputations against him. He further submits that Ext.P2 “write-up” was also published and circulated through the Internet along with Ext.P1. Ext.P1 reveals that the E mail address is profkgv@yahoo.co.in. 3. On receipt of Exts.P1 and P2, petitioner had preferred Ext.P3 representation before respondent No.2 requesting him to track down the real culprit behind the E mail. Petitioner had also forwarded Exts.P1 and P2 along with Ext.P3 representation to respondent No.2. Petitioner had also submitted Ext.P4 complaint before the Inspector General of Police, Cyber Crime Cell, Thiruvananthapuram in this regard requesting to institute necessary investigation. 4. It is on record that Thiruvalla Police had registered crime No.668/2007 on October 19, 2007 against one Elsamma Abraham for the offences punishable under Sections 419, 468 and 469 IPC, on the basis of the complaint lodged by the petitioner before respondent No.2 which in turn had been forwarded to Thiruvalla Police. The grievance of the petitioner is that effective and satisfactory investigation is not being carried out in the case. The two prayers in the writ petition are extracted hereunder: WP(C).3191/2008 2 “(i) Issue a Writ of Mandamus or any other appropriate Writ, Order or direction directing the investigation of Crime 668/2007 of Thiruvalla Police Station to the competent officer of Cyber Cell, Thiruvananthapuram. (ii) Issue a Writ of Mandamus or any other appropriate Writ, Order of direction directing the Director General of Police to entrust the investigation of Crime No.668/2007 of Thiruvalla Police Station to the competent officer/investigator having special knowledge and skill in the detection and investigation of the Cyber Crimes. 5. It is contended by the petitioner that the High Tech Crime Enquiry Cell at the Police Headquarters in Thiruvananthapuram had traced the origin of the E mail. In Ext.P8 communication the Cell had informed the Inspector General of Police thus: “ The technical aspect in this matter was attended by the Hi-Tech Crime Enquiry Cell. The e-mail ID was created byusing Yahoo services and on contacting the Yahoo India, they informed that this mail ID was created on Sunday, 21st January 2007 at 00.54.03 GMT (06:24:03 IST), and the IP address at the time of creation was 59.93.35.236. Then we contacted BSNL, Kerala WP(C).3191/2008 3 to trace the IP Addresses which are allocated to them. Based ib our request, BSNL authorities trcea dn provided the following details of the subscriber whoi used the IP Address at the time of cretion of the above impersonated e-mail ID. Used ID : moncyelsy. Name : Elsamma Abraham. Phone : 0469 2784848. Address : Mallappally. Address details of the phone number 0469 2784848 collected from BSNL website: Name : Elsamma Abraham. Address : 1 9/420, Thuruthicadu, Kurudamannil,Thuruthicadu, Mallappally - 689 101. From the available evidences collected from Yahoo Web Services India Pvt. Ltd. and BSNL authorities, it is prima facie suspected that the e-mail ID profkgv@yahoo.co.in was created from the internet connection availed by the above addressee. Hence a detailed investigation is seen required in the matter.” 6. In the statement filed by the Deputy Superintendent of Police, Thiruvananthapuram, who is admittedly in charge of the investigation of WP(C).3191/2008 4 Crime 668/07, it is stated that in the course of investigation he had questioned several witnesses and the deposition of the accused was also recorded. According to the Officer the accused (Smt. Elsamma Abraham) and her husband Thomas Abraham had stated before him that the E mails were not intended to denigrate the image of the petitioner (complainant) in any way or to defame him. According to the accused they had created the ID (profkgv) for the purpose of propagating the ideas and views of Sabha Protection Council and to “safeguard the position of Rev. Bishop P.C.Cherian from the virulent attack via leaflets and pamphlets circulated by the opposite groups”. The group under the Sabha Protection Council had taken the view that the ID quoted above stood for “profile of kingdom God's vision (profkgv) and not for Professor K.G.Varghese (petitioner) as alleged by him. 7. In the subsequent statement field by the Investigating Officer dated April 2, 2008 it is asserted by him that no case attracting any of the offences under the Information Technology Act had been made out though documentary evidence had been “collected from the Hi Tech Enquiry Cell, which was supplied to the Cell by Yahoo India/ the Internet Service. The Officer has further admitted that the address of the terrestrial phone connection was duly received from the BSNL authorities. According to the Officer, the officials of the Internet service Provider Yahoo.com were not questioned as the service provider is in USA. Since the E mail service provider Yahoo.co.in is centered around in Bombay, the officials were not accessible for interrogation. Interestingly the Officer further states that the details connected with the case have been properly received from them and their services were “viably utilised to trace out the E mails with the assistance of Hi Tech Enquiry Cell. 8. When this writ petition came up for further consideration on June WP(C).3191/2008 5 23, 2008, the Investigating Officer was directed to file a statement adverting to the steps taken by him for collecting necessary materials till date and also regarding the progress made in the investigation. 9. Pursuant to the above direction another statement dated June 25, 2008 has been filed. Having carefully perused the said statement I find considerable force in the contention raised by the petitioner that a proper investigation is not being conducted in the case. Obviously the Officer in charge of the investigation as on today does not appear to be very well versed with a crime of this nature. As mentioned earlier, the Officer in his first statement had referred to the admissions made by Smt.Elsamma and her husband that they had created the I.D in question and circulated the material on the Internet. It is also revealed from the statements filed by the Investigating Officer that the terrestrial land line has also been tracked down. If that be the position, it is not discernible from the materials available on record as to why the final report is not being filed after completing the investigation. Ext.P8 will undoubtedly stare at the face of the investigating agency. The statements filed by the Investigating Officer so far are far from satisfactory, to say the least. 10. In this context it may also be noticed that the petitioner has a specific grievance that the Investigating Officer is dragging his feet, since Smt. Elsamma (the accused) is related to an Inspector General of Police now in service. The said allegation made by the petitioner has not been denied by the Investigating Officer at all. On the contrary, he concedes that he is aware of the relationship. 11. Anyhow, I do not propose to make any further comment or observation about any other aspect of the case any further. In my view, respondent No.2 is duty bound to take an appropriate decision in the matter in the light of the observations made above. Any citizen who approaches WP(C).3191/2008 6 the court with a grievance must have the satisfaction at the end of the day, that his grievance had been considered property. It must be ensured by the Police that a free and fair investigation is held by a competent officer, especially in a case of this nature which involves a cyber crime. If the investigation is conducted by an officer who is not well versed with the intricacies and technical aspects of such crimes, the investigative process will not be satisfactory at all. I have no reason to assume that respondent No.2 will not address the issue in its proper perspective. 12. Therefore in the above facts and circumstances of the case, the writ petition is disposed of with a direction to respondent No.2 to consider Ext.P3 complaint and take further action in the matter. It must be ensured by respondent No.2 that the investigation of Crime 668/07 registered by Thiruvalla Police pursuant to Ext.P2 is entrusted to a competent officer with special knowledge and skill in detection and investigation of cyber crimes. I hasten to add that I have not expressed any opinion on the merit of the contentions raised by the petitioner. It must be ensured by the Investigating Officer to be designated by respondent No.2 that a free and fair investigation is held immediately. The final report in the case shall be submitted by the Officer as expeditiously as possible at any rate within 4 months from the date of receipt of a copy of this judgment. The records of investigation which are available with respondent No.3 shall be taken back by respondent No.2 and entrusted to the Officer to be appointed by him. A.K. BASHEER Judge an.