Avnish Bajaj vs. State (DPS MMS Scandal Case)

Avnish Bajaj vs. State

(2005) 3 CompLJ 364 Del

Key Words: Internet Service Providers (ISPs), Cyber Space, Criminal Liability, Director’s Liability, Listing

FACTS:

The case involved an IIT Kharagpur student Ravi Raj, who placed on the baazee.com a listing offering an obscene MMS video clip for sale with the username alice-elec. Despite the fact that baazee.com have a filter for posting of objectionable content, the listing nevertheless took place with the description, “Item 27877408 – DPS Girls having fun!!! full video + Baazee points.” The item was listed online around 8.30 pm in the evening of November 27th 2004 and was deactivated, around 10 am on 29th November 2004. The Crime Branch of Delhi police took cognizance of the matter and registered an FIR. Upon investigation, a charge sheet was filed showing Ravi Raj, Avnish Bajaj, the owner of the website and Sharat Digumarti, the person responsible for handling the content, as accused. Since, Ravi Raj absconded; the petition was filed by Avnish Bajaj, seeking the quashing of the criminal proceedings.

CONTENTIONS:

Petitioner

1. Since the MMS was transferred directly between the seller and buyer without the intervention of the website, they can at most be responsible for the listing placed on the website which by itself was not obscene and did not attract the offence under Section 292/294 IPC or Section 67 of the Information Technology (IT) Act.
2. Due diligence was taken by the website to immediately remove the video clip once it was brought to its knowledge that it was objectionable.
3. The scope of Section 67 of the IT Act is only restricted to publication of obscene material and does not cover transmission of such material.

State

1. Offence under Section 292 of Indian Penal Code (IPC) includes not only overt acts but illegal omissions within the meaning of Sections 32, 35 and 36 IPC.
2. The failure to have adequate filter in a system which is entirely automated entails serious consequences and a website cannot escape such legal consequences.
3. The fact that payment was made to the seller even as on 27th December 2004 shows that no attempt was made to prevent or stop the commission of the illegality by the website.

HELD (Delhi High Court)

The court observed that a prima facie case for the offence under Section 292 (2) (a) and 292 (2) (d) IPC is made out against the website both in respect of the listing and the video clip respectively. The court observed that “[b]y not having appropriate filters that could have detected the words in the listing or the pornographic content of what was being offered for sale, the website ran a risk of having imputed to it the knowledge that such an object was in fact obscene”, and thus it held that as per the strict liability imposed by Section 292, knowledge of the listing can be imputed to the company.

However, as far as Avnish Bajaj is concerned, the court held that since the Indian Penal Code does not recognize the concept of an automatic criminal liability attaching to the director where the company is an accused, the petitioner can be discharged under Sections 292 and 294 of IPC, but not the other accused.

As regards S. 67, read with Section 85 of the IT Act, the Court however, observed that a prima facie case was made out against the petitioner Avnish Bajaj, since the law recognizes the deemed criminal liability of the directors even where the company is not arraigned as an accused. The judgement however did not declare Avnish Bajaj guilty.

Author’s Remark:

I respectfully submit that there is no sound reason to absolve the director, Avnish Bajaj, even under the said provision of section 292 and 294 of IPC. The concept of corporate criminal liability must be applied here to impose appropriate penalty on the director. Support for such argument can also be drawn from Article 12 of the European Convention on Cyber Crime which provides for imposition of criminal liability on the legal person having a power of representation, authority to take decisions and exercise control. Clause 2 of Article 12 provides that a legal person can be held liable where the lack of supervision or control by a natural person acting under his authority has made possible the commission of a criminal offence.

Though India has not ratified the convention as yet but the said provision can be taken as a guiding principle to impose liability on the director of the company. If the director is absolved of any liability, it will set a wrong precedent.

The approach taken by the court in this case does not contribute to the determination of the extent of liability of Internet service providers and their directors, as the court did not specifically delve into these issues and settle the law on this subject.