Avnish Bajaj v State (NCT) of
Delhi
Citation: (2005) 3 CompLJ 364 Del, 116 (2005)DLT 427
Facts:
An internet website (Baazee.com) offered for sale a video clip, shot
on a mobile phone, of 2 children of a school in Delhi indulging in a sexually
explicit act.
The petitioner, MD of the company that owned the site (Baazee.com
India Ltd.), has asked to annul his prosecution for the offence of making
available for sale and causing to be published an obscene product within the
meaning of sec 292 of the Indian Penal Code and Sec 67 of the Information
Technology Act.
Baazee.com was a wholly owned
subsidiary of Ebay.Inc, USA, and the website was during the relevant period in
the process of being renamed as Ebay India Private Limited.
The website provided an online platform where buyers and sellers
could get in touch with each other. To be a buyer or seller a person has to
register himself with baazee.com by filling an online form with details like
age (the person has to be above 18 years of age), email id, etc. The person
also has to choose an appropriate baazee ID and password.
Ravi Raj, a fourth year student at IIT Kharagpur was registered as a
seller on Baazee.com since 21st July, 2004. He had been using the
site for listing products for sale. His email ID was psell@sify.com.
On 27th November, 2004, Ravi Raj placed on the site an
MMS video clip for sale at Rs.125 a piece.
He adopted the seller’s name as Alice Electronics and gave the address
as 12-A/39, Roshpa Tower, Main Road, Malanche, Kharagpur.
In order to avoid being detected by the filters installed by
Baazee.com, he included the clip under the category of “Books and Magazines”
and sub-category “e-books.” Although Baazee.com has a filter for some of the
words on the site, the listing nevertheless took place. The word “sex” at
serial No.23 and “sexual” at serial No.70 were part of the suspected words.
The site when visited had the following item description “Item 27877408-DPS Girls having fun!!!full
video+Baazee points.” The price was Rs.125 and under the column seller’s
details the name was “alice elec” and Location as Kharagpur.
Upon clicking on the item’s description, the listing read as under –
‘DPS Girls having fun!!! Do
you want to see the video that which has rocked the whole Delhi and now has
become a hot point of discussion in the entire Nation?
YES, Then what are you
waiting for!!!
Just order for this product
and it will be delivered to you within few hours.
This video is of a girl of
DPS RK PURAM which has been filmed by her boyfriend in very sexual explicit
conditions.
Please Note: This video
clip of around 2:30 minutes and will be send to you as an email attachment.
The interested buyer had to click on the “Buy Now” option and make
payment through credit card or “Paisa Pay” option. The buyer had to pay Rs.128
per clip which included a commission of Rs.3 that went to Baazee.com. This was
deducted from the amount received from the buyer and the balance of Rs.125 was
remitted to the seller through HDFC Bank. The seller on receiving confirmation
that payment had been made, would send the video clip by an email attachment by
a zip file with the description “dps_rkpuram-sex-scandle.zip”
Between 8.30 p.m. in the evening of November 27th 2004
when the listing went online till around 10 a.m. on 29th November
when the listing was de-activated, eight transactions of sale took place across
the country.
At around 8.20 p.m. on 27th November 2004 information was
received by Baazee.com from Amit Vohra stating that a person is trying to sell
a video which is illegal in India as it was shot on two people who are below
the age of 18 years and pornography is illegal in India. He further advised
Baazee.com to sort out the issue and report it to legal authorities as this
could get their site into trouble.
The email was assigned to Namrata of Baazee.com at around 8.25 pm on
27th November, 2004 itself who assigned it to Swapna Sawant on the
next day and the priority was shifted to “high alert” category.
On 29th November, 2004, Baazee.com wrote to Alice
Electronics at 10.10 a.m. that it had noticed that the listings put on the site
by them were either obscene or pornographic in nature. They further informed
the seller that they have closed the item since it is against the user
agreement. The video clip was removed on 29th November, 2004 at
around 10.38 a.m. 8 persons with different IDs were located in different parts
of the country including Calcutta, Pune, Bangalore, Delhi, Nellore and Chennai
who had made the purchase.
On 9th December, the Crime Branch of Delhi Police on
receiving credible information that the video was being sold for Rs. 125,
registered FIR No.645 of 2004. On the same day a news item appeared in a
newspaper “Today” saying “DPS sex video at Baazee.com”
The police sent notices under Sec 91 of the CrPC to the petitioner
and Sharat Digumarti, the Senior Manager, Trust and Safety, Baazee.com and
obtained information on the working of the site.
On 17th December, 2004, Ravi Raj was arrested at
Kharagpur and certain recoveries were effected from him including the CPU
containing the hard disk of the computer from where the email attachments of
the offending video clips were despatched. The petitioner was arrested on the
same day in Mumbai. He was later released on bail on 21st December,
2004. At the conclusion of the investigations, a charge sheet was filed showing
Ravi Raj, Avnish Bajaj and Sharat Digumarti as accused Nos. 1,2 and 3.
The learned Metropolitan Magistrate by an order dated 14th
February 2006 took cognizance of the offences under Sections 292 and 294, IPC
and Sec 67 of the IT Act. Ravi Raj has been absconding and his trial has been
separated.
Petitioner Arguments
(advanced by Mr.Arun Jaitley and Mr.Sidharth Luthra)
Baazee.com is not and cannot be liable since the clip itself was not
made available on the site. The clip was transferred directly from the seller
to the buyer without the intervention of the website.
No criminal liability could be attached to the petitioner just
because he was the MD at the time of the offence. The revenue was generated by
the website and not by the petitioner and it was not profit as contemplated
under Sec 292 of IPC.
Criminal liability cannot be fastened lightly in the absence of a
specific case being made out against the petitioner.
State Arguments (advanced
by Ms.Mukta Gupta)
The offence under Sec 292 of IPC includes not only overt acts but
also illegal omissions. The failure to have adequate safeguards in an automated
system entails serious consequences.
The website earned profits through the Rs.3 commission it made on
every sale.
The petitioner was in charge of policy and planning.
Judgement
Sec
292 of the Indian Penal Code was referred to.
292.
Sale, etc., of obscene books, etc. (IPC)
(1) For the purposes of
Sub-section (2), a book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, shall be deemed to be obscene if it
is lascivious or appeals to the prurient interest or if its effect, or (where
it comprises two or more distinct items) the effect of any one of its items,
is. if taken as a whole, such as to tend to deprave and corrupt person, who are
likely, having regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it.
(2) Whoever-
(a) sells, lets to hire,
distributes, publicly exhibits or in any manner puts into circulation, or for
purposes of sale, hire, distribution, public exhibition or circulation, makes,
produces or has in his possession any obscene book, pamphlet, paper, drawing,
painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys
any obscene object for any of the purposes aforesaid, or knowing or having
reason to believe that such object will be sold, let to hire, distributed or
publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives
profits from any business in the course of which he knows or has reason to
believe that any such obscene objects are for any of the purposes aforesaid,
made, produced, purchased, kept, imported, exported, conveyed, publicly
exhibited or in any manner put into circulation, or
(d) advertises or makes known by
any means whatsoever that any person is engaged or is ready to engage in any
act which is an offence under this section, or that any such obscene object can
be procured from or through any person, or
(e) offers or attempts to do any
act which is an offence under this section, shall be punished on first
conviction with imprisonment of either description for a term which may extend
to two years, and with fine which may extend to two thousand rupees, and, in
the event of a second or subsequent conviction, with imprisonment of either
description for a term which may extend to five years, and also with fine which
may extend to five thousand rupees.
Sharat Digumarti was the Senior Manager, Trust and Safety who was
responsible for maintaining the subject and banned key word list and ensuring
that no lascivious material is listed for sale on the website. However, he did
not take appropriate measures to ensure that the list of banned and suspect
words is updated keeping in mind social norms. Although the website ran on a
24*7 basis, no person was deputed by him from his unit to review listings and
to respond to alerts generated by the system. The filters claimed to be in
operation have been found to be grossly inadequate.
There is no prima facie case against the petitioner in his
individual capacity under Sec 292 of IPC. A director does not automatically
become liable for the criminal acts of the company.
Sec
85 of the Information Technology Act was referred to.
Section 85 - Offences by
companies
(1) Where a person
committing a contravention of any of the provisions of this Act or of any rule,
direction or order made thereunder is a company, every person who, at the time
the contravention was committed, was in charge of, and was responsible to, the
company for the conduct of business of the company as well as the company,
shall be guilty of the contravention and shall be liable to be proceeded
against and punished accordingly:
Provided that nothing
contained in this sub-section shall render any such person liable to punishment
if he proves that the contravention took place without his knowledge or that he
exercised all due diligence to prevent such contravention.
Notwithstanding
anything contained in Sub-section (1), where a contravention of any of the
provisions of this Act or of any rule, direction or order made thereunder has
been committed by a company and it is proved that the contravention has taken
place with the consent or connivance of, or is attributable to any neglect on
the part of, any director, manager, secretary or other officer of the company,
such director, manager, secretary or other officer shall also be deemed to be
guilty of the contravention and shall be liable to be proceeded against and
punished accordingly.
Explanation.-For the
purposes of this section,-
(i)
"company"
means any body corporate and includes a firm or other association of
individuals; and
(ii)
"director",
in relation to a firm, means a partner in the firm.
Whoever publishes or transmits or causes to be published in
the electronic form, any material which is lascivious or appeal to the prurient
interest or if its effect is such as to tend to deprave and corrupt persons who
are likely, having regard to all relevant circumstances, to read, see or hear
the matter contained or embodied in it, shall be punished on first conviction
with imprisonment of either description for a term which may extend to five
years and with fine which may extend to one lakh rupees and in the event of a
second or subsequent conviction with imprisonment of either description for a
term which may extend to ten years and also with fine which may extend to two
lakh rupees (Sec 67 of the IT Act).
On
observing Sec 85 of the Information Technology Act, it has been found that the
company alone may be prosecuted. The person-in-charge may be prosecuted. The
conniving officer may be prosecuted. Any or all of them may be prosecuted.
A
prima facie case for the offence was made out against the Baazee.com company
under Sec 292 of IPC.
No
prima facie case is made out against Avnish Bajaj under Sec 292 of IPC.
The
petitioner (Avnish Bajaj) is therefore discharged from liability under Sec 292
and 294 of IPC.
This
does not affect the case against the other accused.
A
prima facie case against the petitioner is made out under Sec 67 read with Sec
85 of the IT Act. The law recognizes the deemed criminal liability of the
directors in these cases even when the company is not arraigned and it is
possible that the company may still be called to trial at a later stage.
Prosecution
of the petitioner under Sec 67 read with Sec 85 of IT Act will continue. The
learned trial court will proceed to the next stage of passing an order
uninfluenced by the fact that a prima facie case has been made out. Petition
and the application disposed.
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