Avnish Bajaj v State (N.C.T.

) of Delhi, (2010) 105 DRJ 721

Facts

The case started with a student of IIT Kharagpur – Ravi Raj, who on 27th
November, 2006, placed on the baazee.com a listing offering an obscene
pornographic video clip titled “DPS  Girls having fun!” for sale with the username
‘Alice-elec’. The listing offered the video in the form of MMS for Rs. 125 each
and was made under the section of “e-books” because of the certainty that the
website, has a requisite safety filter for the putting up of objectionable content for
sale. On 29th November 2006, the objectionable obscene item listed was
deactivated and removed. The Delhi Police Crime Branch took cognizance of the
matter and registered a FIR. After investigation, a charge sheet was filed showing
Ravi Raj, Avnish Bajaj, MD of Baaze.com website and Sharat Digumarti, the
person responsible for handling such content, as accused.

Issues

1. Are the offences under Section 292 and 294 of IPC and Section 67 of IT Act
attracted?
2. Whether the MD of the company be held liable if the company has not been
arraigned as a principle accused under Section 67 of the IT Act?

Held

The court observed that a prima facie case for the offence was made under Section
292 (2) (a) and 292 (2) (d) of the IPC. The court stated in this regard that “by 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 attributed to the company. The bench noted that it was misleading to state that
the company played the role of a mere moderator whereas the function of the
company was an integral part for the completion for the entire chain of events.
Bazee.com, in this case, was essentially an agent in the entire transaction as it had
generated revenue from the listing and also transferred the payment to the advertiser
even after the deactivation of the objectionable listing. Hence it was an evident
procedural error in not mentioning the company as a principle accused.

The Hon’ble High Court held that the charge-sheet did not make any prima facie case
against the petitioner, It also held that the concept of automatic criminal liability on
the MD of a company was not recognized in the Indian Penal Code and hence was not
held liable under the provisions of Section 292 and 294 of the Indian Penal Code.
However, Avnish Bajaj was held liable to the charges under section 85 of the IT Act
as, together with Section 67 of the same Act, it argued that even if the company had
not been arraigned as a principal accused,  a director will be criminally liable.

Syed Asifuddin and ors v. The State of Andhra Pradesh and

anr, MANU/AP/0660/2011

Facts

The instant case was registered on basis of written complaint of Head of Sales and
Marketing wing of M/s Reliance Infocomm Ltd, Hyderabad (Respondent No. 2).
Reliance Infocomm had launched telephone services called as ‘Reliance India
Mobile’, later modified to ‘POBF’. The subscriber would get a digital handset
exclusively franchised to Reliance and Reliance mobile service bundled together, for
three years. It’s been alleged that the subscribers of Respondent No. 2 were being
attracted by other service providers through phone calls informing them of better tariff
plans and services and the option to shift service providers. Once subscribers wanted
to shift their mobile service provider, the petitioners hacked the Electronic Serial
Number (ESN)by reprogramming it. As the Mobile Identification Number (MIN) of
Reliance handsets were irreversibly integrated with ESN, re-programming the ESN
ensured the device would be validated/authenticated by the Petitioners’ service
provider and not by Reliance Infocomm’s deivce.

Issues

1. Whether a telephone handset is a computer u/s 2(1)(i) of IT Act, 2000 or not?

2. Whether the manipulation of ESN programmed into the cell phone would amount
to altering of source code u/s 65 of IT Act, 2000 or not?

Held

A conjoint reading of sections 2(1)(i), (j) and (l) would show that any electronic,
magnetic or optical device used for storage of information received through satellite,
microwave or other communication media and the devices which are programmable
and capable of retrieving any information by manipulations of electronic, magnetic or
optical impulses is a computer which can be used as computer system in a computer
network. Hence, telephone handset would be covered under the ambit of computer as
defined u/s 2(1)(i) of IT Act, 2000.

For the purpose of S. 65 computer source code refers to list of programmes; computer
commands; design and layout and programme analysis of computer resource in any
form. Going by the definition, ESN of Samsung N191 model cell phone handset or
ESN of LG-2030 model cell phone handset exclusively used by the Respondent No. 2
as well as SID of second respondent come within the definition of computer source
code. Every cell phone operator is required to obtain SID from the licensor. Further,
ESN is a permanent part of the phone whereas MIN and SID are programmed into
phone when one purchases a service plan and have the phone activity. If someone
manipulates and alters ESN, then the exclusively used handsets would become usable
by other service providers like TATA Indicom. Therefore, prima facie, when the ESN
is altered, the offence under S. 65 of I.T. Act is attracted because every service
provider like Respondent No. 2 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. Further, whether a cell
phone operator is maintaining computer source code, is a matter of evidence. In this
case, Respondent No. 2 is maintaining the computer source code. If there is allegation
against any person including the petitioners, certainly an offence under S. 65 is made
out. Therefore, the crime registered against the petitioners cannot be quashed with
regard to S. 65 of the IT Act, 2000