Google India Pvt. Ltd. vs Vinay Rai and Another

Suresh Kait

Crl. M.A. 387/2012

Exemption is allowed subject to just exceptions.

Criminal M.A. stands disposed of.

Crl. M.C. 100/2012 and Crl. M.A. 386/2012

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

Mr. Mukul Rohtagi and Mr. Neeraj Kishan Kaul, Sr. Advocates appearing on behalf of the petitioner submitted that the court has grossly erred in not appreciating the facts of the case and that the services in question are not provided by the Google India Pvt. Ltd. / Petitioner, but are provided by Google Inc. In the entire complaint there is no mention or any averment or involvement of the petitioner in the alleged commission of offence.

Ld. Counsel has further submitted that the petitioner i.e. Google India Pvt. Ltd. (Google India) is a subsidiary of Google Inc., a company incorporated under the Laws of United States of America. Therefore, the petitioner does not even constitute to being inter-mediatory as defined under the provisions of Information Technology Act, 2000 as amended up to date.

It is further submitted that in the complaint it is alleged that the petitioner is the publisher and service provider of the electronic contents and is also responsible in managing and controlling alleged websites and internet content.

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 also 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, are freely and publicly available to any person accessing the 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 does 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.

It is further submitted that Ld. Trial Judge has wrongly applied Section 202 Cr.P.C. wherein if the offender is outside the legal jurisdiction, then enquiry is required. Ld. Trial Judge has resorted the provision u/s 202 Cr.P.C. and sought the report from the SHO concerned. However, in the said report nothing is against the petitioner nor any material against the petitioner has been brought in the report. In spite of that ld. Trial Judge has relied upon the said report and summons that issued against the petitioner.

Ld. Counsel has relied upon case of Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker and Another, , wherein in Para 9, it was held as under:

The general scheme of the aforesaid sections is quite clear. Section 200 says inter alia what a Magistrate taking cognizance of an offence on complaint shall do on receipt of such a complaint. Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order, to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. Section 203, be it noted, consists of two parts: the first part indicates what are the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. Section 204 says that if in the opinion of the Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process.

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), an intermediary 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 not intermediatory or the service provider and his only job is for advertising and any of the information sought by anyone that 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.

Ld. Counsel has also referred the other judgment of Hon''ble Supreme Court in 1993 Suppl. (1) SCC 499 in the case of Punjab National Bank and Ors. Vs. Surendra Prasad Sinha Para 6 of the said Judgment reads asunder:

It is also salutary to note that judicial process should not be an instrument of oppression or needles harassment. The complaint was laidimpleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case of harass them for vendetta.

Therefore, ld. Counsel has submitted that it is the responsibility and duty of the Magistrate to find whether the concerned accused should be legally responsible for the offences charged for. Only on satisfying that the law casts liability or creates any offence against the juristic person or the persons impleaded, then only process would be issued.

Ld. Counsel further submits that there is no document in the complaint against the petitioner which makes him liable for the offences.

Ld. Counsel has further relied on the case of Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, wherein in Para 28 and 29 it was held as under:-

Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

No doubt the magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court u/s 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. it was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants, If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that ''''in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused.'''' We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the magistrate as well, as the magistrate will not give any different conclusion on an application filed u/s 245 of the code. The High Court says that the appellants could very well appear before the court and move an application u/s 245(2) of the Code and that the magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding that there are sufficient grounds for proceeding against the appellants. if we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence u/s 7 of the Act and also that there is no basis for the complainant to make such allegation. The allegations in the complaint merely show that the appellants have given their brand name to ''''Residency Foods and Beverages Ltd.'''' for bottling the beverage ''''Lehar Pepsi''''. The complaint does not shoe what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as accused No.3. The preliminary evidence on which the 1st respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers u/s 3 of the Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short, the ''''Fruit Order''''), It is not disputed that the beverage in the question is a ''''fruit product'''' within the meaning of clause (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is required. The fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, making and labeling of containers of fruit products. One of such requirement is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacture to be displayed on the top or neck of the bottle. The licence number of manufacturer shall also be exhibited prominently on the side label on such bottle [clause (8)(1)(b)]. Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle. It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in Hamdard Dawakhana (Wakf), Delhi and Another Vs. Union of India (UOI) and Others, , an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could have been appropriately issued under the Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof.

Ld. Counsel for the petitioner has submitted that being summoned in criminal case is a serious matter. The criminal law is set into motion as a matter of course. Therefore, the Magistrate has to apply legal mind before resorting to this process. In the instant case, in spite of material not being on record, the Magistrate has issued summons against the petitioner.

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

Notice issued.

Mr. Vaibhav Sharma, Adv. accepts notice for respondent no.

Ld. APP accepts notice on behalf of the State.

On the other hand, Mr. Navin Sharma, ld. APP for State 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 the people.

Ld. APP further submitted 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.

Trial Court record be summoned by special messenger.

Re-notify on 12.01.2012.