HM Journal

Sharat Babu Digumarti vs Govt of NCT of Delhi

When we discuss a cyber-offence, we often encounter with the question what is the exact role of an intermediatory and to what extent they can be held liable. In recent years, cyber security is a top list concern of every nation. IT Act 2000 & it’s 2008 amendment, enactment of The Companies Act 2013, most importantly Government’s recent initiative to safeguard user privacy and appointment of grievance redressal officer for tech giant companies, proposition of data protection bill etc. shows the gravity of ensuring cyber safety and user data privacy concerns. If two laws overlap with each other, it raises contrary interpretation on a single subject from time to time. In the case of Sharat Babu Digumarti vs NCT of Delhi, the question was raised before the court whether a person discharged under section 67 of IT Act 2000 can be still held guilty under section 292 of Indian Penal Code, 1860.

Background-

  • In the year 2004, a Mms of a minor girl was put on sale by Ravi Raj on www.bazeee.com (now www.eBay.in). After receiving information of that obscene material, it was removed within 38 hours, but not immediately. The safety feature of the site, failed miserably.
  • After the investigation, Crime Branch pressed charged Ravi Raj along with CEO Avnish Bajaj, the Serious Manager Sharat Babu Digumarti. The chargesheet was framed as per Section 292,294 & Section 67 of IT Act, 2000. (Also known as the baazee.com case). The proportion of punishment varied for every accused.
  • Avnish Bajaj, submitted petition to Delhi High Court under section 482 of CrPC (1973), claiming that he had no involvement in publishing & selling of obscene material, hence should not be charged with section 292 of IPC, 1860 & section 67 of IT Act, 2000. The court quashed the IPC provisions, but allowed the procedure with section 67 & 85 of IT Act, 2000. However, in the year 2012, the apex court reversed this judgement of Delhi High Court and held Avnish Bajaj cannot be held responsible for vicarious liability, and cannot be held guilty under IT Act because the firm was not charged as an accused.
  • After this Section 79 of IT Act was amended to offer protection to intermediaries in connection with content obtained from third parties.

Facts-

  • As the punishment varied for every accused, Sharat Digumarti filed a petition before the trial court to quash the criminal proceedings against him. In previous court decisions, he was discharged from the offences under Section 294 of the IPC, 1860 and Section 67 of IT Act, 2000, the charges under Section 292 of the IPC were still enforceable against Sharat Digumarti.
  • Sharat again submitted a petition to the Delhi High Court, but the court upheld the trial court’s order and held the charges (Section 292 of IPC, 1860) would remain attached with Sharat in his individual capacity.
  • Sharat Digumarti finally appealed against this decision in the Supreme Court (Sharat Babu Digumarti vs Govt. of NCT, Delhi).

Issue-

If an offender gets discharged under section 67 of The IT Act, 2000, will he be liable under section 292 of IPC, 1860 or not?

Contention by the Petitioner (Sharat Babu Digumarti)-

  • Section 67 of IT Act is a special provision; hence it overrides the section 292 of IPC, 1860.
  • Even if the accusations were to stand, Sharat would be protected recent amendment made under Section 79 of IT Act. For this reasoning, learned counsel relied on Section 81 of IT Act of 2000. Citing the decision of Shreya Singhal vs UOI, where the Supreme Court interpreted Section 79 to find that an intermediary must get real information from the government via a court order or notice before removing objectionable content from the internet.

Contention by the respondent (NCT of Delhi)-

  • The petitioner is being tried exclusively for his role as Manager of trust and Safety of the website.
  • There was no provision or rule to bar the charging of the petitioner under Section 292 of the IPC, 1860.

Judgement-

The Apex court observed that the leaked mms was an electronic media. Since section 67 specifically talks about electronic media, it will prevail over section 292 of IPC as it deals with obscene material made in paper, drawing, painting, writing but not electronic media. Also, the protection to the intermediaries offered by section 79 of IT Act cannot be ignored too. Also, as the offence comes under the special law which is IT Act, charging the appellant with any other law can attract double jeopardy (Violated under guaranteed fundamental right as per Article 20 (2) of Constitution of India). Hence, the appeal is allowed, the orders passed by the High Court and the trial court are set aside and the criminal prosecution lodged against the appellant stands quashed.

Case number – Criminal Appeal No. 1222 of 2016

Bench – Justice Dipak Misra, Justice Prafulla C. Pant

Forum – Supreme Court of India

Appellant -Sharat Babu Digumarti

Respondent -State (NCT of Delhi)

Decided on – 14 December, 2016

Reference

  1. Avnish Bajaj v. State (NCT) of Delhi, 2004 SCC Online Del 1160
  2. Avnish Bajaj v. State, 2008 SCC Online Del 688
  3. Shreya Singhal v. Union of India, (2015) 5 SCC 1
  4. Sharat Babu Digumarti v. Govt. (NCT of Delhi), 2016 SCC Online SC 1464
  5. Constitution of India
  6. Information Technology Act, 2000
  7. Indian Penal Code, 1860
  8. https://digiinfomedia.online/the-bazee-com-case-a-case-that-defined-intermediary-liability/#.YQAHc7riuMp
  9. https://www.lawinsider.in/sharat-babu-digumarti-vs-govt-of-nct-of-delhi/
  10. https://advocatespedia.com/Sharat_Babu_Digumarti_vs_Govt_Of_Nct_Of_Delhi
  11. https://www.lawyersclubindia.com/articles/landmark-judgments-on-cyber-law-14025.asp

Leave a Comment

Your email address will not be published.