Face Book India Online Services Pvt Ltd vs Vinay Rai

Suresh Kait

Crl. M.A. 392/2012

Exemption is allowed subject to just exceptions.

Criminal M.A. stands disposed of.

Crl. M.C. 102/2012 and Crl. M.A. 391/2012

Vide the instant petition, the petitioner has challenged the order dated 16.12.2011 and 23.12.2011, whereby the ld. Trial Court has issued summons against the petitioners for facing the trial u/s 292/293/120B Indian Penal Code, 1860.

Mr. Siddharth Luthra, Sr. Advocate appearing on behalf of the petitioner submitted that the court below has grossly erred in not appreciating the facts of the case that the petitioner is a company incorporated under the Indian Companies Act, 1956 to carry on business in India and abroad of, inter alia, online support services, software development, providing technical support and services.

Ld. Counsel further submitted that the complaint contains certain allegations with respect to content allegedly available on www.facebook.com and petitioner does not control or operate the servers that host Facebook.com and does not have any role relating to the policies for removal /control of content on Facebook.com.

Ld. Counsel further submitted that IT Act, 2000 and Indian Penal Code, 1860 do not equate an electronic record with a document. However, for the purposes of the Evidence Act, 1872 and the Indian Penal Code, 1860, an electronic record may be deemed to be a document only if the procedure u/s 65B of the Evidence Act, 1872 has been complied with. Section 29 of the Indian Penal Code, 1860 defines ?document? and does not include within its ambit the term ?electronic record? and has not been amended by the IT Act. Therefore Sections 292 and 293 are not applicable in this case.

Ld. Sr. Counsel further submits that CW.1/A-37 to Ex.CW1/-48 allegedly downloaded from www.Facebook.com could not have formed the basis of the impugned Orders as the same are not supported by a certificate / affidavit as prescribed u/s 65B of the Evidence Act, 1872 and, therefore, these pages cannot be deemed to be ?documents?. The impugned orders based on such material are liable to be quashed.

It is submitted by ld. Counsel that pages allegedly downloaded from Facebook.com do not contain any URL with the help of which the content can be identified on the world wide web and as such the ld. MM erred in accepting such pages on the record without such URL.

The impugned order dated 16.12.2011 taking cognizance of the complaint is vague and not sustainable. No offence was made out and, hence the ld. Metropolitan Magistrate erred in taking cognizance u/s 200 Cr.P.C.

It is further alleged that all persons who are responsible for allowing such contents to be hosted on the website have conspired among themselves and with those who are the source of such contents are consequently liable to be prosecuted and punished under Sections 153(A)/153(B)/292/293/295(A)/ 298/109/500 and 120B Indian Penal Code, 1860.

Ld. Sr. Advocate has further submitted that the complaint contains no information whatsoever regarding the uniform resource locator or any other evidence that would at least prima facie established the petitioner''s ownership and control over the websites. The complainant refers to several services which are not provided by the petitioner and in relation to which no liability can be fastened on the petitioner.

It is further submitted that the details regarding the ownership, management and control of website named in the complaint and with which the petitioner is alleged to be associated are provided on these websites itself, and are freely and publicly available to all persons who have access to internet and accordingly were clearly available to the complainant, the witnesses and even to respondent no. 2. As per such freely and publicly available information, it is apparent that ownership, management and control of each of these websites and the content under the same do not vest with the petitioner.

Ld. Counsel has further submitted that the complainant has not produced any material to establish even the prima facie, the petitioner owns or manages or exercise any control over or is otherwise responsible, answerable and liable for contents available on any of the website namely Youtube, Orkut, Blogger, Google, Shyniblog or Exbii.

Ld. Counsel has further submitted that even as per allegations made by the complainant does not constitute any office against the petitioner.

Ld. Counsel has referred Section 79 of the Information Technology Act, 2000, which reads as under:

?Exemption from liability of intermediary in certain cases:- (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), anintermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

It is submitted that even intermediatory shall not be liable for any third party information / or communication link made available or hosted by him. Petitioner is neither an intermediatory nor a service provider and his only job is for advertising and any information sought by anyone is free of cost. The petitioner is neither the service provider nor the platform on which objectionable material has been loaded. Therefore the petitioner is on a better footing and is exempted u/s 79 of the Information and Technology Act, 2000.

Ld. Counsel has further relied upon Section 65-B(2) of the Evidence Act, which was inserted by Act 21 of 2000.

a. The computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

b. During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

c. Throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

d. the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

It is further submitted that complainant has not filed any certificate as contemplated u/s 65-B(2), Indian Evidence Act. Therefore ,he submits that there is no legal evidence before the trial court.

Mr. Siddharth Luthra, Sr. Advocate has relied upon a judgment of aDivision Bench of this Court decided on 30.05.2010 in Crl. Appeal No.927/2008, wherein in Para 3 and 44 it was held as under:-

At the outset we express our displeasure at the manner in which the impugned judgment has been written. It is prolix. As a result, the issues which arose have got blurred. We also express our displeasure at the lack of knowledge of the learned Trial Judge, who has ignored the mandate of Section 65B of the Evidence Act while recording evidence and through the testimony of Const.Rajvir PW-14 has exhibited printout details of mobile telephone number 9899545415 as Ex.PW-14/A and Ex.PW-14/B. The learned Trial Judge appears to be totally unaware as to how a document in electronic form has to be proved. It has to be proved either by means of a certificate issued by the person/authority in whose custody the device in which the document was stored in an electronic form that the printout generated has been through the device and reflects an information stored in electronic form in the ordinary course or through the testimony of the person who generates the printout from the device in which the same is stored .It cannot be exhibited when a police officer tenders it saying that he procured it.

We would be failing if we do not draw the attention of the learned Trial Judge to the insensitive manner in which the trial has been conducted. For future guidance of the learned Trial Judge we draw his attention to Section 65B of the Evidence Act and request him to keep himself abreast with the law and in future not accept proof of electronic document as has been done in the instant case. We would also request the learned Trial Judge to be careful in assigning exhibit marks to the document with none having repetitive exhibit marks and for this purpose we direct the Registry to send a copy of this decision to the District and Sessions Judge Delhi with a letter of request that it should be transmitted to the learned Trial Judge so that the learned Trial Judge is made known the mistakes conducted so that in future he can be careful.

Ld. Counsel for the petitioner has raised the issue that under Sections 292 and 293 Indian Penal Code, 1860, the petitioner cannot beheld liable because of the fact that it does not contemplate the electronic record.

Notice issued.

Mr. Vaibhav Sharma, Advocate accepts notice for respondent no. 1.

Ld. APP has submitted that certain contents which has been submitted before the trial court in a sealed content cover which is per-se inflammatory, unacceptable by any set of community standards; seeks to create enmity, hatred and communal violence against amongst any religious communities; in demeaning, degrading and obscene and will corrupt minds and will affect the religious sentiments of public at large.

Ld. APP on the other hand submits that there is no discrepancy in the order passed by the ld. Magistrate. He has perused all the records and there are objectionable materials which are available in sealed cover on the judicial file. He has further submitted that before passing any order, trial court record may be summoned.

The petitioner has not made the State as a party.

Therefore, on the oral submission, the State is impleaded as respondent no. 2.

Petitioner shall file the amended memo of parties in due course.

During the course of the day, petitioner shall supply the copy of the paper book to the ld. Counsel appearing from the opposite side.

Trial Court record be summoned by special messenger.

Re-notify on 12.01.2012.