The case against Baazee.com and its CEO Avnish Bajaj under section 67 of ITA 2000 was a watershed event in the Cyber Law history in India. The case involved posting of an obscene video for auction on the website by a student of IIT Kharagpur. The case had opened a good debate on the application of section 292 of IPC, in the incident along with Section 67 of ITA 2000, the requirement of “Due Diligence” under Section 85 of the ITA 2000 etc. The case had also attracted attention since the IT industry lead by FICCI as well as some of the political forces came strongly in favour of the influential baazee.com and allegedly conspired to change the laws to get them exonerated through the proposed amendment to ITA 2000. However, despite their sincere effort to implement the amendments, the effort was frustrated by a timely action by the Parliamentary Committee which pointed out many of the inadequacies of the proposal and sent the ITA 2000 Amendment Bill back to the drawing board. 

The developments in the case are therefore of interest to observers of Cyber Law in India. Now there appears to be some development in the Case. 

The Delhi High Court on 28th instant reportedly allowed proceedings against Avinash Bajaj, managing director of Baazee.com, for allowing an auction of a pornographic video clip involving two students on his website. Proceeding under sections 67 (publishing of information which is obscene in electronic form) and 85 of the Information Technology Act, which fixes the responsibility of a person for the conduct of business of the company as well as the company is  being allowed.

However, the court appears to have quashed the criminal proceedings  under sections 292 (sale of obscene books) and 294 (obscene acts and songs in public place) of the Indian Penal Code (IPC).

From the point of view of Baazee.com this appears to be a positive development since the the Company/CEO was under two main risks one from IPC and the other from ITA 2000. The proposed amendment to ITA 2000 was already addressing the issue of removing the liabilities under ITA 2000. Though this has been stalled by the Parliamentary sub-committee, it appears that the amendments are being re-introduced without all the changes proposed by the sub-committee and with retrospective effect so that it may protect Baazee.com in this case. Now that the foucs in the Baazee.com litigation is entirely on the ITA risk, there is a possibility of the amendment process being expedited.

In view of the high profile nature of the Case, there is every possibility of the law being twisted or the judiciary being misled. One needs to wait and watch the developments of this landmark case. It is not clear why why the charge was dropped under Sec 292.

Was it because  the video clipping was not considered a “Material equivalent to Paper document” covered by IPC?. Was the content not deemed “obscene”? Was the act not considered “putting the obscene material into circulation”?  Was there no “Receipt of Profit”? Was it not amounting to “Advertising and Promotion”?

In case the spirit of Section 4 of ITA 2000 (legal recognition of electronic documents) had been considered, it would have been difficult to reject the charges under Sec 292. If the rejection is due to an inadequate pressing of charges by the Police, there is a danger of the case turning out to be a misleading precedent.

Public has to be vigilant since there is a possibility of disinterest sneaking into the prosecution after the  change of guard and may result in a verdict without  a thorough analysis of the legal points involved. 

Naavi

www.naavi.org 

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