Case Analysis of “Avinash Bajaj vs. State”- By Yashika Soni
Facts of the Case:
Ravi Raj, an IIT Kharagpur student, posted a list on baazee.com using the handle 'alice-elec' selling an obscene MMS video clip for sale. Despite the fact that baazee.com has a filter in place to prevent the uploading of objectionable material, the listing with the description "Item 27877408 - DPS Girls having fun!!! full video + Baazee points" took place. The item was listed on the internet around 8:30 p.m. on November 27th, 2004 and was deactivated around 10 a.m. on November 29th, 2004. The matter was reported to the Delhi Police Crime Branch, which opened an investigation and filed a FIR.
Following the probe, a charge sheet was filed against Ravi Raj, Avnish Bajaj, the website's owner, and Sharat Digumarti, the person in charge of processing the content. Since Ravi Raj has gone missing, Avnish Bajaj has filed a plea to have the criminal proceedings quashed.
Arguments of the Parties:
Petitioner: Because the MMS was transferred directly between the seller and buyer without the involvement of the website, they can only be held liable for the listing placed on the website, which was not obscene in and of itself and did not give rise to an offence under Section 292/294 of the Indian Penal Code or Section 67 of the IT Act, 2000.
The website exercised due diligence in removing the video clip as soon as it was brought to their attention that it was objectionable. The IT Act's S. 67 only applies to the publication of obscene content; it does not apply to the transfer of such material.
State: An offence under S.292 of the IPC involves not only overt conduct, but also illegal omissions as defined by Sec.32, 35, and 36 of the IPC.
Failure to have a sufficient filter in a completely automated system has major legal ramifications, and a website cannot avoid such legal ramifications. The fact that money was given to the vendor on December 27, 2004 reveals that no attempt was taken to prevent or stop the website from committing the criminal act.
Issues of the Case:
Could a case be brought against a corporation under Section 292 of the IPC?
It possible that the theory of illegal omission will lead to criminal liability in this case?
Can the director of a website be held liable under Section 67 of the Information Technology Act of 2000 if the website is not named as an accused?
Decision of the Court:
In both the listing and the video clip, the court found that a prima facie case for the crime under Section 292 (2) (a) and 292 (2) (d) of the IPC has been made out against the website. The court reasoned that because "the website did not have 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 the risk of having imputed to it the knowledge that such an object was in fact obscene," it "ran the risk of having imputed to it the knowledge that such an object was in fact obscene," and thus held that knowledge of the listing can be imputed to the company under strict liability of S.292.
However, in the case of Avnish Bajaj, the court ruled that because the Indian Penal Code does not recognise the concept of automatic criminal liability attaching to a director when the company is an accused, the petitioner can be discharged under S. 292 and 294 of the IPC, but not the other accused persons.
The Court did note, however, that a prima facie case was brought out against the petitioner Avnish Bajaj under S. 67, read with S. 85 of the IT Act, since the law recognises the considered criminal liability of the directors even though the firm is not charged as an accused.