• Lex Specialis

case comment on Avnish Bajaj Vs. State (N.C.T.) of Delhi

- Kritika Shrivastava*


Background of the Case


Case Name: Avnish Bajaj Vs. State (N.C.T.) of Delhi

Citation: (2005) 3 Comp LJ 364 (Del), 116 (2005) DLT 427

Plaintiffs: Avnish Bajaj

Defendants: State (N.C.T.) of Delhi

Judge/Coram: Vikramajit Sen, J.

Decided on: 21.12.2004


Introduction


The present case is highlighted as one of the most prominent decisions in the Cyber Law conferring the role played by the gatekeepers in free flow passing of the information and the liability that arises subsequently and further discusses about the online intermediary liability. The case is also well recognized as the ‘Bazee.com’ Case.


Facts of the case

  • Avnish Bajaj, the CEO of Baazee.com which is a customer to customer website facilitating the online sale of property. Baazee.com receives the commission from these sales and generates revenue from advertisements which are carried on its web pages.

  • On 27th November, 2004 an obscene MMS clipping was listed for sale on the website Baazee.com in the name of “DPS Girl having fun”. Few copies of the clipping were sold through the website Baazee.com and the seller received the money from the sale.

  • Avnish Bajaj was subsequently arrested under Section 67 of the Information Technology Act, 2000 and Trial Court rejected the bail application put forward by him. After which he approached the Delhi High Court for bail.


Issues

  • Whether the depiction “DPS Girl having fun” should have raised an apprehension

  • Whether payments should have stopped through banking channels after learning about the illegal nature of the transaction

  • Whether the special law(s) such as Information Technology Act, 2000 shall prevail over the prior and general law(s) such as Indian Penal Code, 1860.

Provisions


Indian Penal Code

  • Section 292 - Sale, etc., of obscene books, etc.

  • Section 294 – Obscene acts and songs

Information Technology Act

  • Section 67 - Punishment for publishing or transmitting obscene material in electronic form.

  • Section 79 - Exemption from liability of intermediary in certain cases.

  • Section 85 - Offences by companies.

Negotiable Instruments Act

  • Section 141 - Offences by companies

Analysis


The proceedings in the present case were first made in front of the Delhi High Court where it was observed that there was a prima facie case made against the website in respect of the listing of the video clips and the contents it carried. It met the essential requirements of Section 292, IPC. However, under the IPC Act, the concept of ‘automatic criminal liability of a director’ has not been recognized as the company was itself not a party to the suit and Avnish Bajaj could not be held liable. This however is no sound and logical reason to exempt the director.


Therefore, a prima facie case was made under the IT Act under Section 67 as the concept of directors’ liability is recognised here irrespective of the arraigned of the company as accused. Furthermore, Section 85 of the IT Act clearly lays down that when an offence has been committed by any Company under the IT Act then every person who was in charge of the company at that time can be proceeded against.


Later in 2012, this decision was overturned by the Supreme Court. The reasoning given behind this was the parallel construction between Section 141 of Negotiable Instruments Act and Section 85 of the IT Act. Interpreting Section 141 of the NI Act, it can be drawn that the commission of an offence was an express condition precedent to attract the liability of others in charge of the company and therefore the acquittal of Avnish Bajaj was done.


In the past precedents such as Maqbool Fida Husain v. Raj Kumar Pandey the courts have considered the provisions of both IT Act and IPC where an allegedly obscene painting was made to offer for sale on the Internet. It was justified as the test of obscenity was similar under both the Acts, it was essential to fathom the wide parameters of the law laid down by the courts in India to determine as to define obscenity.


The judgement delivered in this case has introduced the concept of relief to intermediaries. The Court has confirmed the principle, generalia specialibus non derogant and held that in cases where obscenity appears on the web, the provision under 79 which deals with the safe harbour principle cannot be ignored. This is because once there exists a nexus between criminal act and electronic record the provision of IT Act is automatically attracted. Furthermore, the alleged offender would escape from the “net” of the IPC if that alleged offender had been acquitted under the provisions of the IT Act.


Intermediary liability is treated as an effort to control the online content by leveraging the position of these gatekeepers to flow the information online. This is because the intermediaries (Baazee.com) facilitate and host access to large information and internet content, and because the internet service providers physically connect users to the internet, gatekeepers presiding over the information. If the gatekeepers ensured the illegal information remains unseen in India then reaching the creators of illegal content becomes unnecessary.


Concluding the judgement, it can be drawn that where there arises a conflict between the laws, the IT Law will prevail over IPC.


Conclusion

Analysing the above case, it can be concluded that no enactment can be referred in isolation. The offence under Section 292 of the IPC was read in accordance with the Sections 67, 79 and 81 of the Act. The Courts have adopted the principle of ‘Harmonious Construction’ and given effect to the intent of the legislature. The IT Act now offers and provides for the offences which were not within the scrutiny of the legislature at the time of enactment of IPC.


Subsequently, post this case there was an amendment in the IT Act to introduce and amend Section 79(i) of the Act. The Section now provides immunity to intermediaries i.e., the websites from the penalties as provided under the IT Act for the content available on its platform by third parties.


However, according to the author’s view, the case falls under the category of corporate rather than intermediary liability. The main reason could be the fact that there was no cross appeal that was filed by the Government against the High Court’s Order u/s 262/264 of IPC when quashed. Also, in the said judgement there is an omission of Section 67 of the IT Act and lacks clarity on the same. Moreover, the concept of corporate criminal liability must have been applied and the guidelines for this can be drawn from Article 12 of the European Convention on Cyber Crime providing for imposing criminal liability on legal person which has the power to represent, decide and control. This can only be taken as a guiding principle since India has not yet ratified the aforesaid convention.


It can be inferred from this judgement that where there ascends a conflict between the laws, the IT Law will prevail over IPC.


Thereby, with the advancement of technology, the interpretation of Supreme Court as laid in this judgement is considered as a welcome precedent in interpreting special laws which were enacted to address specific offences arising due to the evolvement of technology. Tracing many individuals distributing illegal content using online platforms, social networks, emails, etc gets immensely difficult due to the number of people and the rate at which data travels. This can be amalgamated if agencies of the government are not subject to the jurisdiction of the national government, but also find their target users in other countries as data anonymity can create an added layer of difficulties.


*Kritika Shrivastava is a student at Symbiosis Law School, Pune.


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