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TMI Blog2005 (7) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 'POBF, which is the most affordable in the market today. Under the said scheme, the subscriber gets a digital handset worth ₹ 10.500/- as well as service bundle for three years with an initial payment of ₹ 3.350/-and monthly outflow of meager ₹ 600/-. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indicom situated in Khan Lathif Khan Estate, Hyderabad. This was ordered in view of specific information received about tampering of Reliance handsets by the staff members of TATA Indicom. Further on specific information about similar such practices going on at TATA Indicom centre opposite to Harihara Kala Bhavan, Secunderabad, the investigating officer along with two other inspectors and panch witnesses proceeded to LM counter at the above place when one Raj Naren, Officer of TATA Indicom revealed that the General Manager (Marketing), Madhavan and Anil Ambati, Manager (Marketing) of TATA Indicom are accepting the handsets belonging to Reliance Infocomm Limited and re-programming with their network with different tariff packages. At the time of conducting raid in Secunderabad Office of TATA Indicom, the investigating officer also came across one Shaik Mustaffa who stated that he purchased handset from Reliance Infocomm network. Therefore, the investigating officer arrested Raj Naren and Shaik Mustaffa, and seized two mobile telephone handsets, one each from the possession of the two arrested persons. On examination, it was found that the handset recovered from Raj Naren is Samsung ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of transaction on the part of the subscriber without fulfilling the obligations laid down in the terms and conditions is clear case of Breach of Trust since the customer has not settled the accounts with the company. Further as the competition between the CDMA service providers blown out of proportions, the TATA Indicom has hatched a conspiracy to hijack the customers of Reliance Infocomm by all fraudulent means and as a part of their Infocomm by all fraudulent means and as a part of their conspiracy trying to woo the customers of Reliance Infocomm with different tariff packages and trying to trap gullible customers and succeeded in their attempt to attract their customers and so far as many as 63 customers belonging to Reliance Infocomm so far migrated to TATA Indicom by illegal means. 5. These two petitions came to be filed on 17-6-2Q03 for quashing crime No. 20 of 2003 by the means of TATA Indicom. While admitting the petitions, this Court passed orders in criminal miscellaneous petition No. 3951 of 2003 staying all further proceedings including investigation of the crime pending disposal of the main petition. The Public Prosecutor filed criminal miscellaneous petition No. 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners concealed, destroyed or altered any computer source code, is devoid of any substance and therefore the offence of hacking is absent. In the absence of any allegation by the second respondent that they have a copyright to the source code of the computer programme in the handsets supplied by second respondent, the infringement of copyright does not arise. He lastly submits that the allegation that TTSL has a subscriber base of 100 thousand (one lakh) customers in Andhra Pradesh and therefore there was no necessity for TTSL to woo the customers/subscribers of second respondent. 8. The learned Additional Public Prosecutor, Sri H. Prahlad Reddy and the learned counsel for the second respondent, Sri D. Seshadri Naidu, submit that when a cognizable offence under various provisions of different statutes is registered and investigation is pending, this Court cannot quash the F. I. R., at the stage of investigation. After conducting appropriate preliminary investigation and examining witnesses the police have come to the conclusion that the petitioners have committed offences involving highly technical aspects, and therefore unless and until proper evidence is let in before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o power to investigate such offence. In such a case, this Court would be justified in quashing investigation on the basis of information laid with the police. 10. The petitioners are also alleged to have committed offences under Section 63 of Copyright Act and Section 65 of IT Act. In the considered opinion of this Court, it would be necessary first to deal with the allegations separately and then deal with the case of the prosecution on the basis of prima facie conclusions. Before doing so, it is necessary to briefly mention about computer and computer source code. 11. The I.T. Act defines computer in clause (i) of Section 2(1) of the Act. According to the definition, 'computer' means any electronic, magnetic, optical or other high speed data processing device or system which performs logical, arithmetic and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network. 'Computer system' is defined in clause (1) of Section 2(1) of I.T. Act, as to mean a devic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the source code may be printed in a book or recorded on a tape without a file system, and this source code is a piece of computer software. The same is used to produce object code. But a programme to be run by interpreter is not carried out on object code but on source code and then converted again. [Diane Rowland and Elizabeth Macdonald : Information Technology Law; Canandish Publishing Limited; (1997). p. 17] Thus, source code is always closely guarded by the computer companies, which develop different function specific computer programmes capable of handling various types of functions depending on the need. The law as we presently see is developing in the direction of recognizing a copyright in the source code developed by a programmer. If source code is copied, it would certainly violate copyright of developer. With this brief background in relation to computer source code, we may now consider in brief the technological aspects of a cell phone and how it works. This is necessary to understand the controversy involved in this case. 15. Alexander Graham Bell invented telephone in 1876. This enabled two persons at two different destinations to communicate with each other throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are intended to identify the phone, the phone's owner and the service provider. To understand how the cell phone works, we need to know certain terms in cell phone parlance. System Identification Code (SID) is a unique 5-digit number that is assigned to each carrier by the licensor. Electronic Serial Number (ESN) is a unique 32-bit number programmed into the phone when it is manufactured by the instrument manufacturer. Mobile Identification Number (MIN) is a 10-digit number derived from cell phone number given to a subscriber. When the cell phone is switched on, it listens for a SID on the control channel, which is a special frequency used by the phone and base station to talk to one another about things like call set-up and channel changing. If the phone cannot find any control channels to listen to, the cell phone displays no service message as it is out of range. When cell phone receives SID, it compares it to the SID programmed into the phone and if these code numbers match, cell knows that it is communicating with its home system. Along with the SID, the phone also transmits registration request and MTSO which keeps track of the phone's location in a database, know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber (ESN) programmed into Samsung N191 and LG-2030 cell phone instrument exclusively franchised to second respondent amounts to altering source code used by these computer handsets i.e., cell phone instruments. In the background facts, a question would also arise whether such alteration amounts to hacking with computer system? If the query answered in the affirmative, it is always open to the police to alter the F. I. R., or it is always open to the criminal Court to frame a charge specifically with regard to hacking with computer system, which is an offence under Section 66 of the IT Act. At this stage, we may read Sections 65 and 66 of the IT Act. 65. Tampering with computer source documents :- Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy, or alter any computer source code used for a computer, computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both. Explanation.- For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the phone whereas MIN and SID are programmed into phone when one purchases a service plan and have the phone activity. When a customer of second respondent opts for its services, the MIN and SID are programmed into the handset. If some one manipulates and alters ESN, as per the case of second respondent, Samsung/LG handsets which are exclusively used by them become usable by other service providers like TATA Indicom. Therefore, prima facie, when the ESN is altered, the offence under Section 65 of I.T. Act is attracted because every service provider like second respondent has to maintain its own SID code and also gives a customer specific number to each instrument used to avail the services provided. The submission that as there is no law which requires a computer source code to be maintained, an offence cannot be made out, is devoid of any merit. The disjunctive word or is used by the Legislature between the phrases when the computer source code is required to be kept and the other phrase maintained by law for the time being in force and, therefore, both the situations are different. This Court, however, hastens to add that whether a cell phone operator is maintaining comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gether, it becomes clear that a computer programme is by very definition original literary work and, therefore, the law protects such copyright. Under Section 63 of the Copyright Act, any infringement of the copyright in a computer programme/source code is punishable. Therefore, 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. 29. 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. This principle is well settled and is not necessary to burden this judgment with the precedents except making a reference to R.P. Kapoor v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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