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.