2012 (1) TMI 328 - HC - Companies Law

Challenged court order on summons and evidence admissibility; raised intermediary liability exemption, ownership issues, and inflammatory content concerns.

FACE BOOK INDIA ONLINE SERVICES PVT LTD Versus VINAY RAI

The petitioner challenged the trial court's order issuing summons under Sections 292/293/120B of the Indian Penal Code. The petitioner argued that ... - ISSUES PRESENTED AND CONSIDERED 1. Whether Sections 292 and 293 IPC (relating to obscene materials) are applicable to electronic records and/or printouts from websites in the absence of compliance with Section 65B of the Evidence Act. 2. Whether documents/pages allegedly downloaded from websites (e.g., Facebook, YouTube, Blogger, Orkut) can be received as evidence and form a valid basis for issuance of summons absent (a) a Section 65B certificate/affidavit and (b) identifying information such as a URL that permits verification of the source on the world wide web. 3. Whether an accused who is not the owner, host or controller of a website - and who does not operate or control the servers on which the content is hosted - can be held criminally liable for third-party content, in light of the exemption under Section 79 of the Information Technology Act. 4. Whether the complaint and taking of cognizance under Section 200 Cr.P.C. were legally sustainable given alleged vagueness, lack of prima facie material to show ownership/control, and reliance on electronic material not proved in accordance with law. 5. Whether conspiracy and other substantive offences (including Sections 120B, 153A, 295A, 500, etc.) can be prima facie sustained against persons alleged to have allowed third-party content to be hosted, absent material demonstrating control, ownership or active participation. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Applicability of Sections 292/293 IPC to electronic records and requirement of Section 65B compliance Legal framework: Section 29 IPC defines 'document' (statutory definition does not include 'electronic record'); Evidence Act Section 65B creates special procedure for proving electronic records; IT Act recognizes electronic records but does not amend Section 29 IPC. Precedent treatment: The Court considered and relied upon prior Division Bench guidance criticizing trial courts for admitting electronic printouts without observance of Section 65B (cited decision emphasizing need for certificate or proper proof of electronic documents). Interpretation and reasoning: The Court accepted the contention that electronic records are not automatically equivalent to documents for purposes of Sections 292/293 IPC unless proved in conformity with Section 65B Evidence Act. Electronic printouts tendered without the prescribed certificate/affidavit cannot be treated as admissible 'documents' to sustain charges under offences that contemplate documents. Ratio vs. Obiter: Ratio - Electronic records relied upon to found criminal proceedings must be proved in accordance with Section 65B before they can be treated as documents for purposes of offences under IPC. Obiter - Observations on the non-amendment of Section 29 IPC by the IT Act support the same conclusion. Conclusion: Sections 292 and 293 IPC are not applicable to electronic material relied upon unless the electronic material is proved as per Section 65B; un-certified printouts cannot form the basis of the impugned orders. Issue 2 - Admissibility of website printouts and requirement of URL/identifying information Legal framework: Section 65B Evidence Act sets out admissibility criteria for electronic records; principles of proof require sufficient identification of source and chain of custody for material relied upon in criminal proceedings. Precedent treatment: The Court referred to prior rulings admonishing trial judges for accepting electronic printouts without following Section 65B and requiring proper proof by certificate or testimony of the custodian/generator. Interpretation and reasoning: The Court noted that pages allegedly downloaded from Facebook.com and other sites lacked URL or other identifying information enabling independent verification of the content on the web. Absence of a Section 65B certificate and absence of URL/identifying markers undermines the evidentiary value of such printouts and precludes their being treated as documents for the purpose of taking cognizance. Ratio vs. Obiter: Ratio - Electronic printouts without compliance with Section 65B and without sufficient identifying data (e.g., URL) are inadmissible and cannot sustain cognizance. Obiter - Directions to trial courts to acquaint themselves with Section 65B procedure (echoing earlier decisions). Conclusion: The impugned orders premised on such uncertified, non-identifiable printouts are liable to be quashed or cannot be sustained as a basis for summons/cognizance. Issue 3 - Intermediary liability and Section 79 IT Act Legal framework: Section 79 IT Act exempts intermediaries from liability for third-party information hosted by them, subject to sub-sections and conditions; distinction between being an intermediary/service provider and being the host/controller is material. Precedent treatment: The Court accepted submissions invoking Section 79 as a shield where the accused does not operate or control the hosting platform; the IT Act's intermediary protections were relied upon by counsel. Interpretation and reasoning: Where the petitioner is not the intermediary or service provider and does not own or control the servers or content policies of the websites in question, liability cannot be fastened merely on the basis of presence of third-party content. The complaint failed to establish prima facie that the petitioner owned, managed or exercised control over the websites or the content complained of. Ratio vs. Obiter: Ratio - Absent material establishing ownership, control or role as an intermediary required to attract statutory or common-law responsibility, Section 79 provides a substantive exculpatory premise against liability for third-party content. Obiter - Remarks on petitioner's factual posture (advertising role) are contextual. Conclusion: Prima facie liability under Sections invoked cannot be sustained against a party that neither operates nor controls the platforms where the content is hosted; Section 79 principles weigh against criminal culpability in such circumstances until contrary material is produced. Issue 4 - Sufficiency and vagueness of the complaint and cognizance under Section 200 Cr.P.C. Legal framework: Magistrate's power to take cognizance under Section 200 Cr.P.C. requires a complaint showing prima facie offence; allegations must be sufficiently specific to inform the court and accused of the charge. Precedent treatment: The Court noted earlier judicial criticism where trials proceeded on inadequately proved electronic material and urged trial courts to adhere to evidence law. Interpretation and reasoning: The impugned cognizance order was described as vague and not sustainable because it relied on uncertified electronic material and failed to demonstrate a prima facie case against the petitioner (no evidence of ownership/control, no URL, no Section 65B compliance). Where the complaint lacks necessary particularity and legal proof, taking cognizance is improper. Ratio vs. Obiter: Ratio - A Magistrate should not take cognizance based on vague complaints or unproved electronic material; adequate prima facie material and proper proof are required. Obiter - Procedural directions to summon trial record for scrutiny. Conclusion: The cognizance order is vulnerable for vagueness and reliance on inadmissible material; the trial court record should be summoned for proper examination of the material before further proceedings. Issue 5 - Viability of conspiracy and other substantive charges without proof of control/participation Legal framework: Criminal responsibility for conspiracy (Section 120B IPC) and other substantive offences requires material to establish agreement, participation or overt acts; mere presence of third-party content without evidence of active role is insufficient. Precedent treatment: The Court treated submissions that conspiracy and other offences cannot be made out absent proof linking the accused to control/creation/publication of the impugned material; prior authority on proof of electronic documents was invoked. Interpretation and reasoning: Allegations that various persons conspired to host objectionable content do not absolve the prosecutorial requirement to produce prima facie evidence linking each accused to the alleged conspiracy or substantive offence. Where the complaint does not show ownership, management or control by the petitioner, conspiracy and similar charges cannot be sustained at the stage of taking cognizance. Ratio vs. Obiter: Ratio - Charges of conspiracy and related substantive offences require prima facie factual material of participation/control; absent such material, summons are not warranted. Obiter - Emphasis on the need for state to examine records and supply particulars if available. Conclusion: The impugned proceedings premised on conspiracy and multiple substantive offences are unsustainable in the absence of prima facie material demonstrating the petitioner's control, ownership or active participation; trial record to be summoned for further consideration.