REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1987 OF 2014

GOOGLE INDIA PRIVATE LIMITED ... APPELLANT(S)

VERSUS

M/S. VISAKHA INDUSTRIES AND ANOTHER ...

RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1.The appellant is the second accused in criminal

complaint filed by the first respondent (hereinafter

referred to as ‘complainant’, for short). The appellant

filed a Petition under Section 482 The Code of Criminal

Procedure, 1973 (hereinafter referred to as ‘the

Cr.PC’, for short), seeking to quash the order passed

by the Magistrate summoning the appellant pursuant to

1

the complaint which seeks to invoke Sections 120B, 500

and 501 read with Section 34 of the Indian Penal Code,

1860 (hereinafter referred to as ‘the IPC’, for short).

THE COMPLAINT

2.The complainant is a public limited company engaged

in the business of manufacturing and selling asbestos

cement sheets with seven manufacturing plants and more

than twenty-five marketing offices all over India. It

is further, inter alia, stated that the product is

manufactured in all its plants in an environment

friendly manner. The first accused is alleged to be the

Coordinator of Ban Asbestos India, a group hosted by

the appellant. Articles are regularly published in the

said group. On 21.11.2008, an article was published. It

was captioned “Poisoning the system: Hindustan Times”.

The complaint targeted renowned politicians of the

country who were named and who had nothing to do with

the ownership and management of the company.

Complainant pleads shock on seeing the article dated

2

31.07.2008 captioned “Visaka Asbestos Industries making

gains”. It is stated that asbestos cement sheets have

been manufactured for more than 70 years in India.

First accused singled out the complainant though there

are other groups manufacturing asbestos cement

products. The relevant part, which is pertinent to the

appellant is contained in paragraph-11:

“11.Complainant most humbly and

respectfully submits that the Accused

No.1’s statement in the articles in

the above mentioned group hosted by

the Accused No.2 is filled with

hatred towards Complainant which is

defamatory in nature, and which a

person of ordinary intelligence in

society would believe the said

statements. Indeed the said statement

injured the reputation of

Complainant. The act of the accused

in posting certain defamatory

articles in the cyber space, which is

visited by innumerable internet

surfers which has vide usage all over

the world in who’s mind the

complainant company is being caused

with such defamatory false

statements. The service provider like

Accused No.2 has made it easier than

ever before to disseminate defamatory

statements to the world wide audience

without taking any due care and

3

diligence to prevent it. The Accused

No.2 has abused the services provided

by it, because both the articles in

the group hosted by it was targeted

towards a particular company which is

well within the knowledge of the

Accused No.2.”

(Emphasis supplied)

3.Cause of action is mentioned at paragraph-15 and it

reads as follows:

“15.CAUSE OF ACTION: Cause of Action for

the complainant arose on 31

st

July,

2008, when an article “Visaka

Asbestos Industries making gains” was

disseminated by accused no.1 in “Ban

asbestos India” group hosted by

accused no.2 and 21

st

November 2008

when the second article “Poisoning

the system: Hindustan Times” was

disseminated by the accused no.1 in

“Bank Asbestos India” group hosted by

accused no.2 and on 10.12.2008 when

the notice to withdraw such articles

was issued by the Complainant and on

subsequent dates.”

4.Jurisdiction is indicated in paragraph-16 of the

complaint and it read as follows:

“16.JURISDICTION: The Corporate Office

of the Complainant is situated at

4

“Visaka Towers”, 1-8-303/69/3, S.P.

Road, Secunderabad. Since the

Corporate Office of the Complainant

Company is situated within the

limits of P.S. Ramgopalpet, this

Hon’ble Court has got jurisdiction

to try this complaint.”

5.Deputy Manager (Legal) of the complainant made his

statement. Thereafter, the appellant came to be

summoned. The summoning order read as follows:

“SUMMONS TO AN ACCUSED PERSON

(Sec.81 Cr.P.C.)

1363

In the Court of the XI A.C.M. Magistrate

at Secunderabad

c.c. No. 679/2009

Between:

M/s. Visaka Industries … Complainant

AND

Mr. Gopal Krishna & others … Accused

To,

M/s. Google India Pvt. Ltd.,

3

rd

Floor, Prestige Sigma,

No.3, Vittal Mallya Road,

Bangalore 560001.

5

Whereas your attendance is necessary

answer to Charge of U/s.500, 501 of

I.P.C. r/w 34 you are hereby directed to

appear in person or by pleader before the

Hon’ble XI A.C.M.M. Court on the day

09.09.2009 10.30 A.M.

Dated this……… day ………………

Seal

Sd/-

Magistrate”

6.It is the said order which came to be challenged

before the High Court.

7.By the impugned judgment, the High Court has

dismissed the petition.

FINDINGS OF THE HIGH COURT

8.Section 79 of The Information Technology Act, 2000

(hereinafter referred to as ‘the Act’, for short),

which appears to have been relied on by the appellant

was found to not exempt a network service provider from

liability much less criminal liability for the offences

6

under other laws or, more particularly, under the IPC.

It was further found that the above provision exempted

Network Service Provider from liability only on proving

that the offence or contravention was committed without

its knowledge or that he had exercised all due

diligence to prevent the commission of such offence or

contravention. Proof, in that regard, can be let in by

leading evidence by the accused. This is a question of

fact which the High Court may not go into in the

petition under Section 482 of the Cr.PC.. The Court

later notices the amended Section 79 of the Act which

came into being with effect from 27.10.2009. It was

noted that it is only under the said amendment that a

non obstante clause was incorporated keeping the

application of other laws outside the purview in a fact

situation covered by the said provision. Under the

amended Section 79, in case the intermediary enters

into any conspiracy, the exemption under Section 79 of

the Act could not be claimed. So also, the intermediary

could not claim exemption in case he fails to

7

expeditiously remove or disable access to the

objectionable material or unlawful activity, even after

receiving actual knowledge thereof.

9.The appellant, it was found, did not move its

little finger to block the material or to stop

dissemination of the unlawful and objectionable

material in spite of the complainant issuing notice

about the dissemination of defamatory material and

unlawful activity on the part of the first accused.

Therefore, it was found that the appellant could not

claim any exemption under Section 79 of the Act, prior

to its substitution, or Section 79 of the Act, after

its substitution, which took effect from 27.10.2009.

10.The complaint was instituted in January, 2009. It

related to an offence which was being perpetuated from

31.07.2008 onwards, i.e., since long before prior to

the amendment of the said provision. It was finally

found that there was no exemption of any criminal law

in respect of a company which is a juristic person and

which has no body that can be damned or condemned, in

8

case found guilty. Appellant can be awarded with

appropriate punishment though not corporal punishment.

Finding no merit, the petition was dismissed.

11.We heard Shri Sajan Poovayya, learned senior

counsel appearing on behalf of the appellant, Shri

Sridhar Potaraju the learned Counsel for the

complainant/first respondent-M/s. Visakha Industries

and Ms. Madhavi Divan, learned Additional Solicitor

General appearing on behalf of the respondents.

12.Shri Sajan Poovayya would contend that services on

google groups is not provided by the appellant. In

other words, the basis of the complainant that

appellant is the intermediary, is completely erroneous.

The legal notice sent by the complainant, did not make

reference to any specific URL. The expansion of URL is

Unique Reference Locator which is the address of the

content on web to identify or locate the objectionable

post. Therefore, the notice was invalid. The appellant,

however, as a gesture, made over the said notice dated

09.12.2008 to its parent entity, i.e., Google Inc.

9

presently Google LLC. It is Google LLC which owns the

Google Group platforms. Google LLC replied to the legal

notice and requested the complainant to provide

specific URLs. It is without responding to the same

that the complaint came to be filed. It is contended

that the complaint proceeds on a mistaken premise that

the appellant hosts and provides services on Google

Groups. A further fallacious basis is that the

intermediary and hosting service provider is expected

to monitor and pre-censor publication of content on its

platform. Error is alleged to underlie the assumption

that hosting of services involves the fact that the

intermediary host has knowledge of the content posted

on a hosting platform. An independent publication by an

author of any content by itself again demonstrates

absence of any connivance between the author and the

intermediary host. There is no case for the complainant

that the appellant is the author or publisher of the

allegedly defamatory articles. On the other hand, the

10

complaint itself proceeds on the basis that it is the

first accused who is the author of the articles.

13.The appellant lay store by the parallel civil

proceedings between the parties. Following the legal

notice issue to the appellant and to Google LLC on

21.01.2009, a civil suit was instituted against the

first accused, Google LLC and the appellant.

14.The suit filed by the complainant came to be

dismissed by judgment dated 17.02.2014. The complainant

succeeded in the first appeal and the court decreed the

suit on 29.01.2016. The appellants preferred a second

appeal. The appeal came to be allowed by the High Court

on 18.01.2016 by which the suit came to be dismissed

against the appellant which was the second defendant.

It is pointed out that the appellant has filed a review

confined in nature against the same. The complainant

has also filed a review.

15.Google LLC is a company incorporated under the laws

of United States of America. Google LLC owns and

11

operates the Google Groups Platforms. The appellant is

the subsidiary of the Google LLC Group. Appellant has

its own separate legal identity. The High Court has

ignored that control over the Google Group platform was

of Google LLC.

16.The learned senior counsel for the appellant drew

our attention to the primary terms upon which service

is rendered by Google LLC. An agreement is contemplated

between a user and Google LLC. Appellant is a company

registered under the Indian Companies Act having its

office at Bangalore. Appellant is appointed as a non-

exclusive reseller of Google LLC Ads program in India

on a principal to principal basis. The appellant is

engaged in business development and promotional

activity for certain limited products and does not play

any role in providing or administering services as

regards Google Groups. It is contended that appellant

is not an agent of Google LLC and it enjoys autonomy in

its functions.

12

17.The terms of service regarding Google Groups

clearly indicate that the services are provided by

Google LLC and not by the appellant. It is contended

that publicly available documents of an unimpeachable

character or any incontrovertible evidence may be

considered by the High Court in deciding a matter under

Section 482 of the Cr.PC.. The Google Groups terms of

service is pressed as one such document. Reliance is

placed on decisions of this Court including Rajiv

Thapar and others v. Madan Lal Kapoor

1

and HMT Watches

Limited v. M.A. Abida and another

2

. Such judicial notice

has been taken in the civil proceedings, it is pointed

out.

18.Next, it contended that the ingredients of the

offence of defamation under Section 499 of the IPC have

not been made out. The first ingredient being

publication of an imputation has not been satisfied qua

the appellant but only as against the first accused. An

intermediary is neither a publisher of third-party

1

(2013) 3 SCC 330

2

(2015) 11 SCC 776

13

content nor does it have knowledge of any content

unless it is notified through an order of an

appropriate court or a Government agency. No provision

of the Act has been invoked. Relying on Sharat Babu

Digumarti v. Government (NCT of Delhi)

3

and Shreya

Singhal v. Union of India

4

, it is sought to be contended

that since no provisions of the Act are invoked, the

complaint is vitiated. It is still further contended

that there is no complaint against the actual

intermediary, viz., Google LLC. It is further contended

that in the context of digital platform, where millions

of posts are made, no editorial control of any sort is

exercised by an intermediary in the publication of any

content on such platforms.

19.It is contended that mere hosting of content would

be insufficient to attribute knowledge, and if does not

amount to publication of content. Appellant cannot be

attributed with actual knowledge to ascribe a mental

element. The role is passive. The author originates the

3

(2017) 2 SCC 18

4

(2015) 5 SCC 1

14

material and the author is the originator and not the

intermediary. The person who accesses or reads the

content again is not an intermediary but the addressee.

Unless the content is brought to the actual knowledge

of the intermediary, taking down the material, cannot

be imposed upon the intermediary. Actual knowledge must

be that which is conveyed through a court order or

through an appropriate Government agency. The

intermediary cannot become a private censor or arbiter

of content. The appellant seeks to emphasise upon the

adverse impact it would have on freedom of Online

Speech and Expression guaranteed under Article 19(1)(A)

of the Constitution of India.

20.The appellant also makes the point that the

mandatory inquiry under Section 202 of the Cr.PC has

not been made. The appellant stood arrayed as an

accused denoting its office at Hyderabad, Bengaluru and

Gurugram whereas the ACJM, whose territorial

jurisdiction is limited to Secunderabad, is the court

where the complaint was filed. Section 202 of the

15

Cr.PC, has been observed, in its breach by the

Magistrate. The decision in Abhijit Pawar v. Hemant

Madhukar Nimbalkar and another

5

, has been enlisted in

support in this regard.

21.A subsidiary does not become liable for the acts of

its parent company, is another contention. It is also

contended that a person cannot be compelled to perform

an impossible act.

CONTENTIONS OF THE COMPLAINANT

22.It is not open to the appellants to have invoked

powers under Section 482 of the Cr.PC. The matter

involves investigation of allegations relating to

facts. It is pointed out as to whether the appellant is

hosting the google group wherein the first accused has

published defamatory articles is a question of fact.

The question as to whether the appellant is or not an

intermediary, is a question of fact. As to whether the

appellant and Google LLC are managed by different

entities or the same entity, is another question of

5

(2017) 3 SCC 528

16

fact. The respondent would dispute the contention that

the documents produced by the appellant are of an

unimpeachable character. The documents are sought to be

relied on without complying with the mandate of Section

65B of The Indian Evidence Act, 1872. Reliance in this

regard Anvar P.V. v. P.K. Basheer and others

6

.

23.It is further submitted that the Magistrate has a

judicial discretion upon examining the complainant to

proceed without recourse to the procedure under Section

202 of Cr.PC. There is no pleading of any prejudice by

the appellant nor proof adduced about the same.

Regarding this, reliance is placed on judgment of this

Court in Shivjee Singh v. Nagendra Tiwari and others

7

.

24.Google hosts the Google Groups. The only question

of fact is whether the appellant is in control of the

said Group or it is, as claimed, controlled by its

Parent Company. Hence, the issue is limited as to the

role of appellant and its participation in the business

of providing Google Groups platform and raising

6

(2014) 10 SCC 473

7

(2010) 7 SCC 578

17

revenues for the same through advertisements, etc.

apart from marketing it. The appellant, it is

contended, cannot be allowed to disown its role in

Google Groups. The appellant has withheld the actual

nature of the activities it is carrying on in India. A

party must come to court with clean hands. The

Memorandum of Association itself, prima facie, shows

that their main objects include providing internet

related projects and/or services and applications.

There is a common economic entity wherein the users are

provided digital space purportedly free but are made to

part with their personal data as consideration. The

said data is used for generating advertisement revenues

which are targeted as user profile and geographical

location.

25.The role of appellant is a question of fact. Once

it is put on notice, Google cannot be heard to say that

it is not aware of the content. If it chooses to

perpetuate the content as publisher of defamatory

content, consequences under law must follow. Appellant

18

plays a very active role in controlling advertisement.

Google is an active publisher as it provides various

tools to users for enabling them to create content

online.

STAND OF THE GOVERNMENT OF INDIA

26.Internet is an important means of expression and

communication. Internet offers information on a

mindboggling variety of subjects. Right to Information

is part of Article 19(1)(A) of the Constitution of

India. Internet has come to be recognised as a

genuinely democratic medium. Communication takes place

at virtually no cost. Internet also is a market place

for commodities and services. The United Nations Human

Rights Council passed a non-binding Resolution in June,

2016 recognizing internet as a basic Human Right. It is

pointed out that Finland became the first country in

2010 which made broadband a legal right for every

citizen.

19

27.There is distinction between publication on the

internet and publication in the print media. Reference

was made to the judgment of this Court in Shreya

Singhal v. Union of India

8

, which has recognised this

distinction. It is contended that there are infinite

challenges that internet poses. The high speed and the

high volumes render pre-censorship highly difficult.

There is automatic uploading without any application of

mind on the part of the website/platform.

28.In the year 2015, there were 3.5 billion people in

the world who accessed the internet. On Facebook, there

were three million photographs updated per day. In

every minute, 510 comments and 293000 statuses are

posted. In 2013, there were 200 billion tweets on

Twitter. In the traditional television programmes,

films and newspapers, the content is pushed to the

viewer or the reader. The choice of the reader or the

viewer is limited to viewing the content or reading the

same. Internet, it is pointed out, works on the pull

principle where it is the viewer who has complete

8

(2015) 5 SCC 1

20

control and he exercises his choice as to what content

he would wish to view or read.

29.The internet uses public spectrum and airwaves to

transmit signal. In Secretary, Ministry of Information

and Broadcasting, Government of India and others v.

Cricket Association of Bengal and others

9

, this Court

took the view that the right of the listeners and the

viewers and not the broadcasters, is paramount.

Airwaves and frequencies are public property. Monopoly

by either Government or anyone else would not square

with the free speech interest of citizens.

30.The distinction between the pre-amendment and the

after-amendment versions of Section 79 of the Act is

highlighted. It is contended that the very definition

of intermediary would reveal that it is not an editor

or a publisher as understood in the context of the

print media. What flows from the definition points to

the role being that of a facilitator or conduit rather

than a selector or editor of information. Light is

sought to be sourced from the views of this Court in

9

(1995) 2 SCC 161

21

the decision in Gambhirsinh R. Dekare v. Falgunbhai

Chimabhai Patel and another

10

:

“18. Therefore, from the scheme of the

Act it is evident that it is the Editor

who controls the selection of the matter

that is published in a newspaper. Further,

every copy of the newspaper is required to

contain the names of the owner and the

Editor and once the name of the Editor is

shown, he shall be held responsible in any

civil and criminal proceeding. Further, in

view of the interpretation clause, the

presumption would be that he was the

person who controlled the selection of the

matter that was published in the

newspaper. However, we hasten to add that

this presumption under Section 7 of the

Act is a rebuttable presumption and it

would be deemed a sufficient evidence

unless the contrary is proved. The view

which we have taken finds support from the

judgment of this Court in K.M.

Mathew v. K.A. Abraham [(2002) 6 SCC 670 :

2002 SCC (Cri) 1480] , in which it has

been held as follows: (SCC p. 676, para

20)

“20. The provisions contained in

the Act clearly go to show that

there could be a presumption against

the Editor whose name is printed in

the newspaper to the effect that he

is the Editor of such publication

10

(2013) 3 SCC 697

22

and that he is responsible for

selecting the matter for

publication. Though, a similar

presumption cannot be drawn against

the Chief Editor, Resident Editor or

Managing Editor, nevertheless, the

complainant can still allege and

prove that they had knowledge and

they were responsible for the

publication of the defamatory news

item. Even the presumption under

Section 7 is a rebuttable

presumption and the same could be

proved otherwise. That by itself

indicates that somebody other than

editor can also be held responsible

for selecting the matter for

publication in a newspaper.””

31.The aforesaid discussion was in the context of an

editor under the Press and Registration of Books Act,

1867.

32.Still further, reference is made about the role

attributable to the service provider of internet

platforms and that of an originator in the judgment of

this Court in Sharat Babu Digumarti v. Government

N.C.T. of Delhi

11

in Criminal Appeal No. 1222 of 2016.

11

(2017) 2 SCC 18

23

33.Internet is a free platform. This is on account of

free open democratic nature of the internet.

34.It is contended that there will be a chilling

effect on free speech if one were to allow

intermediaries to intervene merely on complaints by

individuals about being defamed or being at the

receiving end of the unfair reporting. If permitted,

such intervention would result in privatisation of

censorship which would be hazardous for free expression

of ideas.

35.Regarding the extent of the liability of an

intermediary, it is contended that after the amendment

in 2008, intermediary’s role as a mere facilitator of

exchanging information or sales, is recognised.

According to Government of India, the pre-amendment

situation is exemplified by the subject matter of the

decision of the Delhi High Court in Avnish Bajaj v.

State (N.C.T. of Delhi)

12

.

12

116 (2005) DLT 427

24

36.Anybody aggrieved by the posting of any defamatory

matter on the internet can make a takedown reference

under Section 79 of the Act. Section 69A of the Act is

relied on. Section 69A gives power to the Central

Government to block access by giving directions to any

intermediary on being satisfied of there being need to

do so in the interest of sovereignty among other

factors. The matter is governed under the Information

Technology (Procedures and Safeguards for Blocking for

Access of Information by Public) Rules, 2009.

37.As far as the stand of the Union regarding the

liability of the subsidiary of a foreign intermediary

is concerned, reliance is placed on the decision of the

Court of Justice of the European Union (ECJ).

38.The case of In Google Spain SL, Google Inc . v.

Agencia Espanola de Proteccion de Datos (AEPD), Mario

Costeja Gonzalez

13

, Case C-131/12, Court of Justice of

European Union (ECJ), is important in this regard. In

Google Spain, the ECJ recognized an individual’s right

to be forgotten, enabling a person to obtain removal of

13

ECLI:EU:C:2014:317

25

search results which violated his/her privacy

interests. The case has geographical implications:

first, would such removal of content be restricted to

an EU-audience, and two, does the EU court have the

authority to direct foreign intermediaries to takedown

content. The Court embraced the arguments put forth by

Google’s opponents:

(i)That Google’s search engine activities are closely

related to the activity of selling advertising space,

which is precisely what subsidiaries such as Google’s

establishment in Spain are engaged.

(ii)As a result, the processing activities related to

the search engine service are also being carried out “in

the context of the activities” of Google’s Spanish

subsidiary.

(iii)The counsels for the plaintiff, Spain and Austria,

likewise emphasised the link between the search engine

service and the selling of advertising space from a

business model perspective; arguing that the activity of

Google’s establishment in Spain should not be regarded

26

as an ancillary activity, but rather as an integral part

of the primary activity (i.e. the selling of

advertisement space)(paragraphs 46 to 52).

39.The ECJ therefore considered that the activities of

the search engine operator and those of its

establishment are “inextricably linked”, as Google’s

search engine service is closely related to the

activity of selling advertisement space (paragraph 56).

Specifically, the Court reasoned that, “the activities

relating to the advertising space constitute the means

of rendering the search engine at issue economically

profitable and engine is, at the same time, the means

enabling those activities to be performed.”(paragraph

56). The Court in paragraphs 53 and 54 noted that, the

EU’s Data Protection Directive 95/46 “sought to prevent

individuals from being deprived of the protection

guaranteed by the directive and that protection from

being circumvented, by prescribing a particularly broad

territorial scope.” Based on these observations, the

27

ECJ concluded that the processing relating to the

search engine service should be viewed as taking place

“in the context of the activities of an establishment”

located on EU territory (see paragraphs 53, 54). This

case recognizes that the domestic subsidiary

responsible for advertising and attracting a user base

could be held liable for the acts of the parent.

40.Our attention is also drawn to the decision in

Richardson v. Facebook

14

. It is contended that however

given that the foreign body may not have Indian

presence, the corporate veil may be lifted to fix

liability on the subsidiary, if it is established that

the latter is an alter ego of the foreign company and

support is sought to be drawn from the judgments of

this Court in New Horizons Limited and another v. Union

of India and others

15

and State of U.P. and others v.

Renusagar Power Company and others

16

.

14

(2015) EWHC 3154 (QB)

15

(1995) 1 SCC 478

16

(1988) 4 SCC 59

28

CONTOURS OF THE JURISDICTION OF THE HIGH COURT UNDER

SECTION 482 OF CRIMINAL PROCEDURE CODE, 1973

41.The contours of the jurisdiction of the High Court

under Section 482 is no longer res integra. We would

think that it is sufficient if we only advert to the

judgment of this Court in State of Haryana and others

v. Bhajan Lal and others

17

. This Court held as follows:

“102. In the backdrop of the

interpretation of the various relevant

provisions of the Code under Chapter XIV

and of the principles of law enunciated by

this Court in a series of decisions

relating to the exercise of the

extraordinary power under Article 226 or

the inherent powers under Section 482 of

the Code which we have extracted and

reproduced above, we give the following

categories of cases by way of illustration

wherein such power could be exercised

either to prevent abuse of the process of

any court or otherwise to secure the ends

of justice, though it may not be possible

to lay down any precise, clearly defined

and sufficiently channelised and

inflexible guidelines or rigid formulae

and to give an exhaustive list of myriad

kinds of cases wherein such power should

be exercised.

17

(1992) Supp (1) SCC 335

29

(1) Where the allegations made in the

first information report or the

complaint, even if they are taken

at their face value and accepted

in their entirety do not prima

facie constitute any offence or

make out a case against the

accused.

(2) Where the allegations in the

first information report and

other materials, if any,

accompanying the FIR do not

disclose a cognizable offence,

justifying an investigation by

police officers under Section

156(1) of the Code except under

an order of a Magistrate within

the purview of Section 155(2) of

the Code.

(3) Where the uncontroverted

allegations made in the FIR or

complaint and the evidence

collected in support of the same

do not disclose the commission of

any offence and make out a case

against the accused.

(4) Where, the allegations in the FIR

do not constitute a cognizable

offence but constitute only a

non-cognizable offence, no

investigation is permitted by a

police officer without an order

of a Magistrate as contemplated

under Section 155(2) of the Code.

30

(5) Where the allegations made in the

FIR or complaint are so absurd

and inherently improbable on the

basis of which no prudent person

can ever reach a just conclusion

that there is sufficient ground

for proceeding against the

accused.

(6) Where there is an express legal

bar engrafted in any of the

provisions of the Code or the

concerned Act (under which a

criminal proceeding is

instituted) to the institution

and continuance of the

proceedings and/or where there is

a specific provision in the Code

or the concerned Act, providing

efficacious redress for the

grievance of the aggrieved party.

(7) Where a criminal proceeding is

manifestly attended with mala

fide and/or where the proceeding

is maliciously instituted with an

ulterior motive for wreaking

vengeance on the accused and with

a view to spite him due to

private and personal grudge.

103. We also give a note of caution

to the effect that the power of quashing a

criminal proceeding should be exercised

very sparingly and with circumspection and

that too in the rarest of rare cases; that

the court will not be justified in

31

embarking upon an enquiry as to the

reliability or genuineness or otherwise of

the allegations made in the FIR or the

complaint and that the extraordinary or

inherent powers do not confer an arbitrary

jurisdiction on the court to act according

to its whim or caprice.”

42.As to what is the scope of the expression “rarest

of rare cases” indicated in paragraph 103, we may only

refer to the judgment of this Court in Jeffrey J.

Diermeier and another v. State of West Bengal and

another

18

wherein the law laid down by a Bench of three

Judges in Som Mittal v. Govt. of Karnataka

19

has been

referred to:

“23. The purport of the expression

“rarest of rare cases”, to which reference

was made by Shri Venugopal, has been

explained recently in Som Mittal

(2) v. Govt. of Karnataka [(2008) 3 SCC

574 : (2008) 1 SCC (L&S) 910 : (2008) 2

SCC (Cri) 1] . Speaking for a Bench of

three Judges, the Hon'ble the Chief

Justice said: (SCC pp. 580-81, para 9)

18

(2010) 6 SCC 243

19

(2008) 3 SCC 753

32

“9. When the words ‘rarest of rare

cases’ are used after the words

‘sparingly and with circumspection’

while describing the scope of Section

482, those words merely emphasise and

reiterate what is intended to be

conveyed by the words ‘sparingly and

with circumspection’. They mean that

the power under Section 482 to quash

proceedings should not be used

mechanically or routinely, but with

care and caution, only when a clear

case for quashing is made out and

failure to interfere would lead to a

miscarriage of justice. The expression

‘rarest of rare cases’ is not used in

the sense in which it is used with

reference to punishment for offences

under Section 302 IPC, but to

emphasise that the power under Section

482 CrPC to quash the FIR or criminal

proceedings should be used sparingly

and with circumspection. ”

(Emphasis supplied)

43.Applying the principles, the question would be

whether the appellant had made out a case for granting

relief in proceedings under Section 482 of the Cr.PC.

As far as the offence of defamation is concerned, even

though the offence under Section 500 is non-cognizable

under the First Schedule to the Cr.PC, the matter would

33

not be governed by paragraph 2 of the judgment of this

Court in Bhajan Lal (supra) as the it

is the case of a complaint and not of a Police Report.

Equally, paragraph 4 of Bhajan Lal

(supra) is for the same reason inapplicable. We do not

think that it is a case where we could hold that

proceeding is manifestly attended with mala fide and/or

where the proceeding is maliciously instituted with an

ulterior motive for wrecking vengeance on the appellant

with a view to spite him due to private and personal

grudge.

44.Next, we must consider whether there is any express

legal bar engrafted in any provisions of the Code or

the Act governing the field to the institution and

continuance of the proceedings. It is here that

provisions of Section 79 of Information Technology Act,

2000 would assume significance.

45.Section 79 of the Information Technology Act, as it

was enacted originally, read as follows:

“Chapter XII

34

NETWORK SERVICE PROVIDERS NOT TO BE LIABLE

IN CERTAIN CASES

79.Network Service Providers not to be

liable in certain cases:

For the removal of doubts, it is hereby

declared that no person providing any

service as a network service provider

shall be liable under this Act, rule or

regulations made thereunder for any third

party information or data made available

by him if he proves that the offence or

contravention was committed without his

knowledge or that he had exercised all due

diligence to prevent the commission of

such offence or contravention .

Explanation. For the purpose of this

Section,

(a)“network service provider” means an

intermediary;

(b)“third party information” means any

information dealt with by a network

service provider in his capacity as

an intermediary.”

(Emphasis supplied)

46.The said provision was substituted by the

Information Technology (Amendment) Act of 2008. It came

into force on 27.10.2009. It reads as follows:

“79 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-

35

sections (2) and (3), an intermediary

shall not be liable for any third

party information, data, or

communication link hosted by him.

(2)The provisions of sub-section (1)

shall apply if-

(a)the function of the intermediary

is limited to providing access to

a communication system over which

information made available by

third parties is transmitted or

temporarily stored; or

(b)the intermediary does not-

(i)initiate the transmission,

(ii)select the receiver of the

transmission, and

(iii) select or modify the

information contained in the

transmission

(c) the intermediary observes due

diligence while discharging his

duties under this Act and also

observes such other guidelines as

the Central Government may

prescribe in this behalf

(Inserted Vide ITAA 2008)

(3) The provisions of sub-section (1)

shall not apply if-

(a)the intermediary has conspired or

abetted or aided or induced

whether by threats or promise or

otherwise in the commission of

the unlawful act (ITAA 2008)

(b)upon receiving actual knowledge,

or on being notified by the

appropriate Government or its

agency that any information, data

or communication link residing in

36

or connected to a computer

resource controlled by the

intermediary is being used to

commit the unlawful act, the

intermediary fails to

expeditiously remove or disable

access to that material on that

resource without vitiating the

evidence in any manner.

Explanation:- For the purpose of

this section, the expression "third

party information" means any

information dealt with by an

intermediary in his capacity as an

intermediary.”

47.The High Court has contrasted the earlier avtar of

Section 79 with the newly inserted provisions and held

as follows:

“4. … In the case on hand, in spite of the

1

st

respondent issuing notice bringing the

petition about dissemination of defamatory

material and unlawful activity on the part

of A-1 through the medium of A-2, the

petitioner/A-2 did not move its little

finger to block the said material or to

stop dissemination of the unlawful and

objectionable material. Therefore, the

petitioner/A-2 cannot claim any exemption

either under Section 79 of the Act as it

stood originally or Section 79 of the Act

after the amendment which took effect from

27.10.2009. the present case in the lower

court was instituted in January, 2009

relating to the offences which are being

37

perpetrated from 31.07.2009 onwards, i.e.,

since long prior to the amendment of the

said provision.”

48.The discussion of the High Court regarding Section

79 reveals the following findings:

a.The earlier version of Section 79 kept at bay the

impact of other laws. After the amendment, Section 79

affords exemption from any other law in respect of

the third-party information subject to sub-Section

(2) of Section 79.

b.Intermediary under the extant provisions of Section

79 cannot seek refuge in Section 79 if it failed to

expeditiously remove or disable access to the

objectionable material or unlawful activity even

after receiving actual knowledge thereof.

c.In the case, it is found that in spite of the first

respondent complaint issuing notice about

dissemination of defamatory information on the part

of A1-accused no.1-appellant did not move its little

finger to block the material or to stop dissemination

of unlawful and objectionable material. This conduct

38

of the appellant disentitles it from claiming

protection either under the provisions of the

unamended Section 79 or under Section 79 after

substitution. The offence in this case was

perpetuated from 31.07.2008 onwards since long prior

to the substitution.

49.At this juncture, it is apposite that we took a

deeper look at what the Government of India has to say

about Section 79.

50.Section 79 is a safe harbour provision. Internet

intermediaries give access to host, disseminate and

index content, products and services originated by

third parties on the internet. There are different

kinds of intermediaries. They include:

i.Internet Access and Service Provider

(ISP). Examples are given in this category

of Airtel, Vodafone, BSNL among others;

ii.Data Processing and Web Hosting Providers.

Examples include Godaddy and Bigrock;

39

iii.Internet Search Engines and Portals like

Google, Yahoo and Binge;

iv.E-mail hosts like gmail (Google) and

yahoomail;

v.Then there are instant messaging platforms

such as Whatsapp, Facebook Messenger,

Skype, etc.;

vi.E-commerce intermediaries where the

platforms do not take title to the goods

being sold like Amazon India, Flipkart,

etc.;

vii.Internet Payment Systems and Mobile

Walleters like Paytm, etc.;

viii.There are also participative internet

platforms.

51.The 2008 amendment introduced Chapter XII to the

Information Technology Act. The amendment was in the

40

background of the decision of the Delhi High Court in

Avinash Bajaj v. State (NCT of Delhi)

20

.

52.Intermediaries stand on a different footing being

only facilitators of exchanges of information or sales.

Prior to the amendment, the exemption provision under

Section 79 did not exist and, therefore, an

intermediary would have been liable for any third-party

information or data made available by him as seen in

the Bazeed (supra). After the amendment, intermediary

is not liable under any Act if it satisfied certain

requirements as detailed in Section 79.

53.After referring to the decision in Shreya

Singhal (supra), the Government of India has understood

the position at law to be that Section 79 stands read

down to mean that an intermediary would need to

takedown information only upon receiving actual

knowledge that a court order has been passed to remove

or disable certain material and not otherwise. The

further stand of the Government of India is thus there

is a recognition that intermediaries and neutral

20

116/2005 DLT 427

41

platforms are only facilitating information. It is

further pointed out on behalf of the Government of

India that the interpretation placed by this Court in

Shreya Singhal (supra) was not available to the High

Court when it passed the impugned order in this case.

Shreya Singhal makes it clear that an intermediary’s

liability will not arise unless it failed to take down

material upon there being actual knowledge by court

order or government communication. This safeguard has

been put in place to avoid chilling affect on free

speech. The intermediaries would, if a contrary view is

taken, stand elevated to the status of super censors

and denude the internet of it unique feature of a

democratic medium for all to publish, access and read

any and all kinds of information.

54.Owing to the special unique characteristic of the

internet, intermediaries are not in a position to know

about a content which is posted on its platforms by

itself and, therefore, the strict liability principle

cannot be made applicable to internet intermediaries.

42

It is the specific stand of the Government of India

that even pre-amendment, an intermediary could not know

the contents of what is posted on its website and,

therefore, be held liable in the absence of a takedown

order by a court or Governmental Agency .

55.The Government of India, it is also noticed, has

perceived a distinction between blocking under Section

69A of the Information Technology Act and takedown

under Section 79 of the Information Technology Act.

Section 69A reads as follows:

“69A, Power to issue directions for

blocking for public access of any

information through any computer resource

(1) Where the Central Government or any of

its officer specially authorized by it in

this behalf is satisfied that it is

necessary or expedient so to do in the

interest of sovereignty and integrity of

India, defence of India, security of the

State, friendly relations with foreign

states or public order or for preventing

incitement to the commission of any

cognizable offence relating to above, it

may subject to the provisions of sub-

sections (2) for reasons to be recorded in

writing, by order direct any agency of the

Government or intermediary to block access

43

by the public or cause to be blocked for

access by public any information

generated, transmitted, received, stored

or hosted in any computer resource.

(2) The procedure and safeguards subject

to which such blocking for access by the

public may be carried out shall be such as

may be prescribed.

3) The intermediary who fails to comply

with the direction issued under sub-

section (1) shall be punished with an

imprisonment for a term which may extend

to seven years and also be liable to

fine.”

56. It is pointed out that the grounds under which

Government issues directions for blocking information

are limited and confined to matters relating to

national security, public order and the like. The power

does not expand to blocking any case of defamation,

contempt of court, etc. A blocking order under Section

69A cannot be passed for criminal defamation as it does

not fall under the scope of Section 69A. Therefore, if

a party is aggrieved by posting of a defamatory content

on website, he must seek recourse to the court process

for adjudication. The matter can be directed to be

44

removed or access disabled under Section 79(3) of the

Information Technology Act. Since, the Court process

can be long drawn, the aggrieved party may seek an

interim order before a competent court.

57.In fact, the learned Senior Counsel for the

appellant did not, as such, canvass the matter on the

basis of Section 79 before it was substituted. However,

we deem it proper to delineate its scope in view of the

fact that if there is an express legal bar to attach

criminal liability upon the appellant under the Act, it

would become a matter of jurisdiction. It is also the

stand taken by the Government of India that there be no

liability on the intermediary under Section 79 of the

Act prior to the substitution as we have set out herein

before.

58.It must be noted that stand of the appellant

primarily has been that the appellant is not the

intermediary in this case and the intermediary in this

case is Google LLC. The arguments have been otherwise

addressed by the appellant on the basis though that

45

even proceeding on the basis that the appellant is

treated as an intermediary, the complaint against the

appellant, cannot be allowed to proceed.

59.On the question as to whether Section 79, as it

stood prior to the substitution, would provide a shield

to an intermediary, we would enter the following

findings.

60.In our view, Section 79, before its substitution,

exempted the Network Service Provider, which is defined

as an intermediary, from liability under the Act, Rules

or Regulations made thereunder in regard to any third-

party information or data made available by him

provided the Service Provider:

1.Proves that the offence or contravention was

committed without his knowledge;

2.The Service Provider proves that he had exercised

all due diligence to prevent the commissioning of

such offences or contraventions.

61.This provision may be contrasted with the later

avtar of Section 79 of the Act consequent upon

46

substitution with effect from 27.10.2009. Sub-Section

(1) of Section 79, in unambiguous words, declares by

way of a non-obstante clause that in spite of anything

contained in any law which is in force, though subject

to the provisions of sub-Sections (2) and (3), an

intermediary would not be liable for any third-party

information, data or communication link hosted by him.

The conditions are set out in sub-Section (2).

62.As we have noticed, the scope of Section 79, before

its substitution, was confined to confer immunity from

liability in regard to an offence under the Act or the

Rules or Regulations qua third-party action or data

made available. In this regard, it must be noticed that

Chapter XI of the Act deals with the offences. Sections

65 to 67B deals with various offences under the Act.

This is besides Sections 71, 72A, 73 and 74 of the Act.

Section 79 falls under Chapter XII. Therefore, the

scheme of the Act would also indicate that Section 79,

as it was prior to the substitution, was indeed

47

confined to the liability of the Network Service

Provider arising out of the provisions of the Act

besides, no doubt, Rules and Regulations, and it was

not, in short, a bar to the complaint under Section

500 of the IPC being launched or prosecuted.

63.The complaint relates, in short, to a period, much

prior to the substitution of Section 79 of the Act,

which ultimately took place only with effect from

27.10.2009. The court, in Shreya Singhal (supra), was

not considering the provisions of Section 79 as it

stood before the substitution on 27.10.2009 which is

what the High Court has focussed on to find that it was

not open to the appellant to seek shelter under Section

79. No doubt, there are certain observations which have

been made by the High Court regarding notice to the

petitioner, which we will dwell upon.

64.We may, in fact, notice another aspect of the

matter. Even, proceeding on the basis that Section 79

should engage us any further, we cannot be oblivious to

an integral feature of Section 79 prior to its

48

substitution. As we have noted, the Law Giver has given

protection from liability not unconditionally. It is

for the Service Provider to prove that the offence or

contravention was committed without his knowledge. He

is also to prove that he has exercised all due

diligence to prevent the commission of such offence or

contravention. We will, for the purpose of argument,

assume that the offence or contravention could relate

to even Section 500 of the IPC. Even then, for the

protection given by the provisions, as it stood at the

time when the offence alleged against the appellant was

allegedly committed by it, to apply, it would become

incumbent upon the appellant to prove that the offence

or the contravention was committed without its

knowledge and that it had taken all due diligence to

prevent the commission of such offence or

contravention. It may be at once noticed that in

reality the scope of Section 79 of the Act, prior to

the substitution, was limited to granting exemption to

the Network Service Provider from any liability under

49

the Act, Rules or Regulations made thereunder, no

doubt, in regard to third-party information or data

available by him. The commission of an offence under

Section 500 of the IPC, would not be a liability under

the Act or a Rules, or Regulations made under the Act.

However, it is undoubtedly true that the scope of the

protection afforded to the intermediary stands

remarkably expanded with the substituted provisions of

Section 79 coming into force, no doubt, subject to the

conditions attached thereunder and as explained by this

Court in Shreya Singhal (supra).

65.The Government of India, no doubt, has contended

that the High Court did not have the benefit of

judgment of this Court in Shreya Singhal (supra). We

may notice that what is considered in Shreya Singhal

(supra) was Section 79 after substitution. There was a

challenge mounted to the constitutionality of Section

79. This Court held as fo llows, inter alia:

“120. One of the petitioners' counsel

also assailed Section 79(3)( b) to the

extent that it makes the intermediary

50

exercise its own judgment upon receiving

actual knowledge that any information is

being used to commit unlawful acts.

Further, the expression “unlawful acts”

also goes way beyond the specified

subjects delineated in Article 19(2).

121. It must first be appreciated

that Section 79 is an exemption provision.

Being an exemption provision, it is

closely related to provisions which

provide for offences including Section 69-

A. We have seen how under Section 69-A

blocking can take place only by a reasoned

order after complying with several

procedural safeguards including a hearing

to the originator and intermediary. We

have also seen how there are only two ways

in which a blocking order can be passed—

one by the Designated Officer after

complying with the 2009 Rules and the

other by the Designated Officer when he

has to follow an order passed by a

competent court. The intermediary applying

its own mind to whether information should

or should not be blocked is noticeably

absent in Section 69-A read with the 2009

Rules.

122. Section 79(3)(b) has to be read

down to mean that the intermediary upon

receiving actual knowledge that a court

order has been passed asking it to

expeditiously remove or disable access to

certain material must then fail to

expeditiously remove or disable access to

51

that material. This is for the reason that

otherwise it would be very difficult for

intermediaries like Google, Facebook, etc.

to act when millions of requests are made

and the intermediary is then to judge as

to which of such requests are legitimate

and which are not. We have been informed

that in other countries worldwide this

view has gained acceptance, Argentina

being in the forefront. Also, the Court

order and/or the notification by the

appropriate Government or its agency must

strictly conform to the subject-matters

laid down in Article 19(2). Unlawful acts

beyond what is laid down in Article 19(2)

obviously cannot form any part of Section

79. With these two caveats, we refrain

from striking down Section 79(3)( b).

123. The learned Additional Solicitor

General informed us that it is a common

practice worldwide for intermediaries to

have user agreements containing what is

stated in Rule 3(2). However, Rule 3(4)

needs to be read down in the same manner

as Section 79(3)(b). The knowledge spoken

of in the said sub-rule must only be

through the medium of a court order.

Subject to this, the Information

Technology (Intermediaries Guidelines)

Rules, 2011 are valid.

xxx xxx xxx

124.3. Section 79 is valid subject to

Section 79(3)(b) being read down to mean

that an intermediary upon receiving actual

52

knowledge from a court order or on being

notified by the appropriate government or

its agency that unlawful acts relatable to

Article 19(2) are going to be committed

then fails to expeditiously remove or

disable access to such material.

Similarly, the Information Technology

“Intermediary Guidelines” Rules, 2011 are

valid subject to Rule 3 sub-rule (4) being

read down in the same manner as indicated

in the judgment.”

66.The Court also was considering the challenge to the

provisions of the Information Technology (Intermediaries

Guidelines) Rules, 2011 (hereinafter referred to as

‘the Rules’ for short). The Rules were brought into

force after 2011. It was made under Section 87 of the

Act. Rule 3 provides for due diligence to be observed

by the intermediary. It is obliged to publish the Rules

and Regulations and the Privacy Policy and User

Agreement. The intermediary is to intimate the user not

to use certain matter which include defamatory matter.

Rule 3(3) of the Rules provided that the intermediary

was not to knowingly host or publish any information,

inter alia, contained, as specified in sub-Rule (2).

53

Thus, under the Rules, the intermediary could not

knowingly host or publish information which was, inter

alia, defamatory. Rule 3(4) of the Rules, read as

follows:

“3. Due diligence to he observed by

intermediary — The intermediary shall

observe following due diligence while

discharging his duties, namely : —

xxx xxx xxx

(4) The intermediary, on whose computer

system the information is stored or hosted

or published, upon obtaining knowledge by

itself or been brought to actual knowledge

by an affected person in writing or

through email signed with electronic

signature about any such information as

mentioned in sub-rule (2) above, shall act

within thirty six hours and where

applicable, work with user or owner of

such information to disable such

information that is in contravention of

sub-rule (2). Further the intermediary

shall preserve such information and

associated records for at least ninety

days for investigation purposes,”

67. It is clear that the entire discussion came to be

made in the context of the challenge to the provisions

of Section 79 after substitution. No doubt, there are

54

observations, which have been made, the effect of which

we shall deal with to the extent that is relevant to

this case. What is relevant is, for the purpose of

deciding this case, we are of the view that this may

not be the case where there is an express legal bar in

the form of Section 79 of the Act prior to its

substitution. We cannot be unmindful of the fact that

we are dealing with a criminal complaint and the

question to be considered is whether the offence, as

alleged in the complaint, was committed or not.

WHETHER “ RAJIV THAPAR AND OTHERS V. MADAN LAL KAPOOR”

WOULD APPLY?

68.The next question, which we must address is,

whether the appellant can persuade us to decide the

question as to whether the appellant is an intermediary

and it is Google LLC which is the intermediary.

69.“Intermediary” has been defined in the Act in

Section 2(1)(ua)(w), which reads as follows:

“2(1)(ua)(w). "intermediary", with

respect to any particular electronic

55

records, means any person who on behalf of

another person receives, stores or

transmits that record or provides any

service with respect to that record and

includes telecom service providers,

network service providers, internet

service providers, web-hosting service

providers, search engines, online payment

sites, online-auction sites, online-market

places and cyber cafes;”

70.Section 2(1)(ua)(za) defines the word “originator”:

“2(1)(ua)(za) "originator" means a

person who sends, generates, stores or

transmits any electronic message; or

causes any electronic message to be sent,

generated, stored or transmitted to any

other person but does not include an

intermediary;”

71.Section 2(1)(b) defines the word ‘addressee’ and it

reads as follows:

“(b) "addressee" means a person who is

intended by the originator to receive the

electronic record but does not include any

intermediary;”

72.According to the appellant, this is a case where

the High Court erred in not considering and answering

the question as to whether the appellant is an

56

intermediary or not. It is the case of the appellant

that the appellant is only the subsidiary of Google LLC

which is its parent company. It is his further

submission that the High Court ought to have permitted

the appellant to draw support from terms of service

regarding Google Groups which convincingly establishes

that the services were provided by Google LLC and not

the appellant. In this regard, reliance is placed on

judgments of this Court in Rajiv Thapar and others v.

Madan Lal Kapoor

21

and HMT Watches Ltd. v. M.A. Abida

and another

22

. It is contended that Google Groups terms

of service is a document of sterling value being of

indisputable character. What is produced before us is

last update seen dated 10.12.2010. Under the same,

there was reference to responsibilities of the

originator under the head ‘content’ your

responsibilities. It is submitted that the originator,

not Google, which will be liable for the content that

will be uploaded, posted, disseminated, etc., which is

21

(2013) 3 SCC 330

22

(2015) 11 SCC 776

57

collectively said to be posted via the service. Under

appropriate conduct, it is stated as follows:

“5. Appropriate Conduct

You agree that you are responsible for

your own conduct and communications while

using the Service and for any consequences

thereof. You agree to use the Service only

to send and receive messages and material

that are legal, proper and related to the

particular Group. By way of example, and

not as limitation, you agree that when

using the Service, you will not:

defame, abuse, harass, stalk, threaten

or otherwise violate the legal rights

(such as rights of privacy and

publicity) of others;

post any inappropriate, defamatory,

infringing, obscene, or unlawful

Content;

post any Content that infringes any

patent, trademark, copyright, trade

secret or other proprietary right of

any party (the “Rights”), unless you

are owner of the Rights or have the

permission of the owner to Post such

Content;

post messages that promote pyramid

schemes, chain letters or disruptive

commercial messages or advertisements,

or anything else prohibited by the

Group owner;

download any file Posted by another

user of a Group that you know, or

reasonably should know, that cannot be

legally distributed in such manner;

impersonate another person or entity,

or falsify or delete any author

58

attributions, legal or other proper

notices or proprietary designations or

labels of the origin or source of

software or other material contained in

a file that is Posted;

restrict or inhibit any other user from

using and enjoying the Service;

use the Service for any illegal or

unauthorised purpose;

remove any copyright, trademark or

other proprietary rights notices

contained in or on the Service;

interfere with or disrupt the Service

or servers or networks connected to the

Service, or disobey any requirements,

procedures, policies or regulations of

networks connected to the Service;

use any robot, spider, site

search/retrieval application, or other

device to retrieve or index any portion

of the Service or collect information

about users for any unauthorised

purpose;

submit Content that falsely expresses

or implies that such Content is

sponsored or endorsed by Google;

create user accounts by automated means

or under false or fraudulent pretenses;

promote or provide instructional

information about illegal activities or

promote physical harm or injury against

any group or individual;

or

transmit any viruses, worms, defects,

Trojan horses, or any items of a

destructive nature.

International users agree to comply with

their own local rules regarding online

conduct and acceptable content, including

59

laws regulating the export of data to the

United States or your country of

residence.

While Google prohibits such conduct and

Content in connection with the Service,

you understand and agree that you

nonetheless may be exposed to such conduct

and/or Content and that you use the

Service at your own risk.”

73. We may also notice, under the head “Propriety

Rights”, “Google’s Rights”, it is mentioned as follows:

“6. Proprietary Rights

Google’s Rights

Google and its affiliates and licensors

own and retain all rights in the Service,

which contains proprietary and

confidential information that is protected

by applicable intellectual property and

other laws. Except as expressly authorised

by Google, you may not copy, modify,

publish, transmit, distribute, perform,

display or sell any of Google’s

proprietary information. “GOOGLE GROUPS”,

are trademarks of Google.”

74.We may also notice the following under head

“Advertisements”:

“9. Advertisements

Google Groups is an ad-supported service.

As such, we display advertisements and

60

promotions on the Service. The manner,

mode and extent of advertising by Google

on the Service are subject to change. You

agree that Google shall not be responsible

or liable for any loss or damage of any

sort incurred as a result of any such

dealings or as the result of the presence

of such advertisers on the Service.”

75.Also, we noticed the conditions under the heading

“Disclaimer of Warranties”:

“11. Disclaimer of Warranties

Google and its affiliates, licensors,

partners, suppliers, consultants and

agents (“Google Entities”) disclaim any

and all responsibility or liability for

the accuracy, content, completeness,

legality, reliability, or operability or

availability of information or Content

displayed on the Service. The Google

Entities disclaim any and all

responsibility and liability for your

conduct and for the conduct of others

using the Service.

THE SERVICE, AND ALL CONTENT, INFORMATION

(INCLUDING, WITHOUT LIMITATION, ANY

INFORMATION OR CONTENT OBTAINED OR

ACCESSED THROUGH THE SERVICE), PRODUCTS

AND SERVICES INCLUDED THEREIN ARE PROVIDED

“AS IS,” WITH NO WARRANTIES WHATSOEVER.

THE GOOGLE ENTITIES EXPRESSLY DISCLAIM TO

THE FULLEST EXTENT PERMITTED BY LAW AND

EXPRESS, IMPLIED AND STATUTORY WARRANTIES,

INCLUDING, WITHOUT LIMITATION, THE

WARRANTIES OF MERHCNTABILITY, FITNESS FOR

A PARTICULAR PURPOSE, AND NON-INFRINGEMENT

61

OF PROPRIETARY RIGHTS. Some states do not

allow the exclusion or limitation of

implied warranties, so the above

disclaimers and exclusions may not apply

to you.

YOU AGREE THAT YOUR USE OF THE SERVICES

ARE ENTIERLY AT YOUR OWN RISK”

76.It is further submitted that the terms of service

would constitute the entire agreement between the party

and Google. Under the “Google Groups Content Policy”,

it was brought to our notice by the learned Counsel for

the appellant that Google has a zero-tolerance policy

towards the content that exploits children. Google

retains the power to remove hate speech which is

explained as content that promotes hate or violence

towards groups based on race, ethnicity, religion,

disability, gender, age, veteran status, or sexual

orientation/gender identity. There is an exhortation

against threatening, harassing or bullying other people

using Groups. There is again the condition that groups

cannot be used to encourage any illegal activities or

to promote dangerous and illegal activities.

62

77.As far as decision in Rajiv Thapar(supra), relied

upon by appellant, is concerned, it involved the

following facts. The appellant therein was married to

the deceased. The deceased fell ill and was admitted in

the hospital. She was diagnosed with as suffering from

malaria. After she was discharged, she again fell ill.

The Echocardiography confirmed presence of a large hole

in her heart. She succumbed to a massive heart attack.

Suspecting poisoning, father of the deceased filed the

complaint. The Medical Board found death due to cardiac

decompensation. The CFSL Report also indicated no

common poison. The Metropolitan Magistrate, who was

approached by the father of the deceased, committed the

case to the Sessions Court who discharged the

appellant-accused. The High Court, however, set aside

the order. It was in these circumstances, this Court

took the following view in regard to the manner in

which the matter must be approached when a party

approaches High Court under Section 482 of the Cr.PC:

63

“28. The High Court, in exercise of

its jurisdiction under Section 482 CrPC,

must make a just and rightful choice. This

is not a stage of evaluating the

truthfulness or otherwise of the

allegations levelled by the

prosecution/complainant against the

accused. Likewise, it is not a stage for

determining how weighty the defences

raised on behalf of the accused are. Even

if the accused is successful in showing

some suspicion or doubt, in the

allegations levelled by the

prosecution/complainant, it would be

impermissible to discharge the accused

before trial. This is so because it would

result in giving finality to the

accusations levelled by the

prosecution/complainant, without allowing

the prosecution or the complainant to

adduce evidence to substantiate the same.

The converse is, however, not true,

because even if trial is proceeded with,

the accused is not subjected to any

irreparable consequences. The accused

would still be in a position to succeed by

establishing his defences by producing

evidence in accordance with law. There is

an endless list of judgments rendered by

this Court declaring the legal position

that in a case where the

prosecution/complainant has levelled

allegations bringing out all ingredients

of the charge(s) levelled, and have placed

material before the Court, prima facie

64

evidencing the truthfulness of the

allegations levelled, trial must be held.

30. Based on the factors canvassed in

the foregoing paragraphs, we would

delineate the following steps to determine

the veracity of a prayer for quashment

raised by an accused by invoking the power

vested in the High Court under Section 482

CrPC:

30.1.Step one: whether the material

relied upon by the accused is sound,

reasonable, and indubitable i.e. the

material is of sterling and impeccable

quality?

30.2.Step two: whether the material

relied upon by the accused would rule out

the assertions contained in the charges

levelled against the accused i.e. the

material is sufficient to reject and

overrule the factual assertions contained

in the complaint i.e. the material is such

as would persuade a reasonable person to

dismiss and condemn the factual basis of

the accusations as false?

30.3.Step three: whether the material

relied upon by the accused has not been

refuted by the prosecution/complainant;

and/or the material is such that it cannot

be justifiably refuted by the prosecution/

complainant?

65

30.4.Step four: whether proceeding with

the trial would result in an abuse of

process of the court, and would not serve

the ends of justice?

30.5. If the answer to all the steps is

in the affirmative, the judicial

conscience of the High Court should

persuade it to quash such criminal

proceedings in exercise of power vested in

it under Section 482 CrPC. Such exercise

of power, besides doing justice to the

accused, would save precious court time,

which would otherwise be wasted in holding

such a trial (as well as proceedings

arising therefrom) specially when it is

clear that the same would not conclude in

the conviction of the accused.”

(Emphasis supplied)

78.The court also declared that the High Court must be

fully satisfied about the material and that material

produced by the accused must be such that the defence

is based on sound, reasonable and indisputable facts.

79.In HMT Watches (supra), the complaint was one under

Section 138 of the Negotiable Instruments Act, 1881. In

the said case, this Court faulted the High Court in

having expressed its view on disputed questions of fact

66

in a petition under Section 482 to conclude that an

offence was not made out. Factual matters which were

not admitted between the parties could not form the

basis for the High Court to interfere.

80.In regard to the attempt, on the part of the

appellant, to persuade us to follow the judgment of

this Court in Rajiv Thapar (supra), we felt dissuaded

from undertaking the said course on the following

reasoning. It is true that a perusal of the petition

before the High Court reveals that appellant has

purported to take up the contention that the website is

the service offered by the Google Inc, the parent

company of the appellant and that the services are

provided by the parent company directly to the users.

It is also the case of the appellant that service

provided on the website is free and the end user can

post a blog without making any payment. The terms of

service and content policy on the website is also seen

produced. Impugned order of the High Court, however,

67

reveals that the court understood the arguments

apparently of the appellant as follows:

“2)It is contended by the senior

counsel appearing for the petitioner/A-2

that actions of intermediaries such as

Google Inc., which is a service provider

providing platform for end users to upload

content, does not amount to publication in

law and consequently the question of

holding such intermediaries liable for

defamation does not arise. Senior counsel

appearing for the petitioner placed

reliance on Section 79 of the Information

Technology Act, 2000 (in short, the Act)

in support of this contention.”

81.The defence raised by the appellant, which,

according to him, consisted of documents in the form of

the conditions stipulated by the parent company in its

conditions, are disputed. To expatiate, according to

the respondent, the said contention is factual. There

is a case also that they are produced without complying

with the mandate of Section 65B of the Indian Evidence

Act, 1872. In this regard, reliance is placed on Anvar

P.V. v. P.K. Basheer and others

23

. There is also

23

(2014) 10 SCC 473

68

definite case for the respondent that appellant cannot

be allowed to disown its role in the Google Groups

being part of the common economic entity. It is

contended by the complainant that the appellant did not

clarify by way of answer to the query by the court as

to what activities they indulge in India. The

Memorandum of Association is referred to contend that

the main objects include providing network related

products or services and applications. It is the case

of the complainant further that in fact the entire

operations of Google Economic Entity, the users are

provided digital space purportedly free but are made to

part with their personal data as consideration. The

said data is used for generating advertisement

revenues. The onus would be on the appellant if it

seeks to dispel this fact to lead evidence to show that

the appellant does not have any role to plea in the

activities of Google. As to whether, it is Google INC,

which is responsible for the Google Groups and the

appellant is not, it is contended by the complainant,

69

is a matter for evidence. It cannot be determined on

the basis of photocopies of documents filed with the

paper books before this Court.

82.We have noticed that the appellant appears to have

produced the Google Groups conditions even before the

High Court. It is also appeared to have taken the

contention that it is Google Groups which is an

intermediary.

83.In this connection, it is our view that this is not

a case where the High Court could be invited

particularly in the light of the stand of the

complainant, as noticed, to decide in favour of the

appellant by holding that it is the parent company

which is the actual intermediary and not appellant. We

are not inclined in this regard to borrow any findings

from the Civil Court in proceedings under Section 482

of the Cr.PC. We must remind ourselves also that the

proceedings are at the stage where the High Court

appear to have entered a finding in favour of the

appellant in the Second Appeal filed under Section 100

70

of the Code of Civil Procedure, 1908 (hereinafter

referred to as ‘the CPC’, for short). However, it is

common case that both parties have filed Review

Petitions. In other words, the matter has not yet

attained finality.

84.In this regard, the question, however, arises

whether the complainant accepts this version of the

appellant or disputes it. We would think that the

complainant does not accepts the actual role of the

appellant. The nature of operations of the appellant,

according to the appellant, is not clear. What is the

actual relationship between the Parent Company and

appellant, is, according to the complainant, a matter

for decision on evidence being taken. In other words,

the contention of the appellant that appellant is not

an intermediary and, hence, cannot be fastened, at any

rate, with criminal liability, is subject matter of

dispute.

WHETHER “ SHARAT BABU DIGUMARTI V. GOVERNMENT (NCT OF

DELHI)” COMES TO THE RESCUE OF THE APPELLANT ?

71

85.There is need to also address an argument based on

the decision of this Court in Sharat Babu Digumarti v.

Government (NCT of Delhi)

24

.

86.Section 81 of the Act reads as follows:

“81. Act to have overriding effect.-

The provisions of this Act shall have

effect notwithstanding anything

inconsistent therewith contained in any

other law for the time being in force.”

87.This Court, in Sharat Babu (supra), was dealing

with a complaint under Sections 292 and 294 of the IPC

and Section 67 of the Act. The central issue which

arose for consideration was, whether the appellant

therein, who stood discharged under Section 67 of the

Act, could be proceeded under Section 292 of the IPC.

Section 292 of the Code makes it an offence to sell,

hire, distribute, etc., any obscene object, whatsoever.

Other offences relating to dealing in obscene objects,

also form the subject matter of the Section. The court

24

(2017) 2 SCC 18

72

referred to the definition of “electronic record” under

Section 2(1)(t) of the Act and found it was a question

relating to electronic record. Thereafter, the court

referred to Section 67 of the Act which penalises

publishing or transmitting obscene material in

electronic form. Section 67B punishes and penalises

publishing or transmitting of material depicting

children in sexually explicit act, etc., in electronic

form.

88.The argument of the appellant, thus, is seen noted

as hereunder:

“29. We have referred to the

aforesaid aspect as it has been argued by

Dr Singhvi that the appellant is protected

under the said provision, even if the

entire allegations are accepted. According

to him, once the factum of electronic

record is admitted, Section 79 of the IT

Act must apply ipso facto and ipso jure.

The learned Senior Counsel has urged

Section 79, as the language would suggest

and keeping in view the paradigm of

internet world where service providers of

platforms do not control and indeed cannot

control the acts/omissions of primary,

secondary and tertiary users of such

internet platforms, protects the

73

intermediary till he has the actual

knowledge. He would contend that the Act

has created a separate and distinct

category called “originator” in terms of

Section 2(1)(z)(a) under the IT Act to

which the protection under Section 79 of

the IT Act has been consciously not

extended. Relying on the decision

in Shreya Singhal [Shreya

Singhal v. Union of India , (2015) 5 SCC

1 : (2015) 2 SCC (Cri) 449] , he has urged

that the horizon has been expanded and the

effect of Section 79 of the IT Act

provides protection to the individual

since the provision has been read down

emphasising on the conception of actual

knowledge. Relying on the said provision,

it is further canvassed by him that

Section 79 of the IT Act gets

automatically attracted to electronic

forms of publication and transmission by

intermediaries, since it explicitly uses

the non obstante clauses and has an

overriding effect on any other law in

force. Thus, the emphasis is on the three

provisions, namely, Sections 67, 79 and

81, and the three provisions, according to

Dr Singhvi, constitute a holistic

trinity.”

89.Thereafter, the court referred to Section 81 which

we have extracted, and finally, the court held as

follows:

“32. Section 81 of the IT Act also

specifically provides that the provisions

74

of the Act shall have effect

notwithstanding anything inconsistent

therewith contained in any other law for

the time being in force. All provisions

will have their play and significance, if

the alleged offence pertains to offence of

electronic record. It has to be borne in

mind that IT Act is a special enactment.

It has special provisions. Section 292 IPC

makes offence sale of obscene books, etc.

but once the offence has a nexus or

connection with the electronic record the

protection and effect of Section 79 cannot

be ignored and negated. We are inclined to

think so as it is a special provision for

a specific purpose and the Act has to be

given effect to so as to make the

protection effective and true to the

legislative intent. This is the mandate

behind Section 81 of the IT Act. The

additional protection granted by the IT

Act would apply.”

90.We are not inclined to accept this argument based

on the dicta laid down in Sharat Babu (supra). It is

true that the offences were alleged to have been

committed at a time when Section 79 had not been

substituted, as we notice that cognizance was taken on

14.02.2006. We may notice the reasoning in paragraph

37, which reads as follows:

75

“37. The aforesaid passage clearly

shows that if legislative intendment is

discernible that a latter enactment shall

prevail, the same is to be interpreted in

accord with the said intention. We have

already referred to the scheme of the IT

Act and how obscenity pertaining to

electronic record falls under the scheme

of the Act. We have also referred to

Sections 79 and 81 of the IT Act. Once the

special provisions having the overriding

effect do cover a criminal act and the

offender, he gets out of the net of IPC

and in this case, Section 292. It is apt

to note here that electronic forms of

transmission are covered by the IT Act,

which is a special law. It is settled

position in law that a special law shall

prevail over the general and prior laws.

When the Act in various provisions deals

with obscenity in electronic form, it

covers the offence under Section 292 IPC.”

91.We, in fact, notice that this Court was persuaded

to place reliance on Section 79 of the Act which was

inserted as a result of the substitution with effect

from 27.10.2009. The provisions of Section 79 are not

seen expressly extracted or referred to by the court.

92.Section 79, even prior to its substitution, did

protect the intermediary from liability for offences

under the Act. This was a case where the appellant was

76

sought to be prosecuted under Section 292 of the IPC

even though he had been discharged under Section 67 of

the Act. The offence was one which properly fell within

the scope of Section 67 in so far as the offending

matter, was contained in an electronic record, as

defined. Therefore, it could be reasoned that it having

been found, he had not committed the offence under

Section 67 of the Act, having regard to Section 81, the

prosecution under Section 292 of the IPC, may not stand

since special provisions have overriding effect. That

explains the statement of the law contained in

paragraph 37 of the judgment, viz., “when the Act in

various provisions deals in obscenity in other forms,

it covers the offence under Section 292 of the IPC.

93.The premise of the judgment of this Court in Sharat

Babu (supra) was that what was involved was an

electronic record within the meaning of the Act. The

appellant in the said case stood discharged under

Section 67 of the Act. The reasoning, which has been

upheld by the Court, was that the special provisions

77

contained in the Act would override and cover a

criminal act and he would get out of the net of the IPC

which in the said case was Section 292. To repeat, the

appellant stood discharged under Section 67 of the Act,

and therefore, could not be prosecuted under Section

292 of the IPC.

94.In this context, we must examine whether there is

any provision in the Act which deals with the offence

of defamation committed in the electronic form. In

fact, in this regard, it is relevant to notice the

judgment of this Court in Shreya Singhal (supra).

95.Incidentally, the learned Senior Counsel who

appeared for the appellant also appeared in the said

case for some of the parties and in the summary of

arguments raised by him wherein, inter alia, he

contended that the existing provisions of the IPC and

of the Act, i.e., Section 67, 66B, 66C, 66D, 66E and

66F adequately covers various offences. In regard to

sending defamatory messages by e-mail, the provision

under the Act was shown as Section 66A and it was

78

contended that the provision in the IPC corresponding

to Section 66A was Section 500 of the IPC. This Court

dealt with the matter and held, inter alia, as follows:

“45. “Defamation” is defined in Section

499 of the Penal Code as follows:

“499. Defamation.—Whoever, by words

either spoken or intended to be read,

or by signs or by visible

representations, makes or publishes any

imputation concerning any person

intending to harm, or knowing or having

reason to believe that such imputation

will harm, the reputation of such

person, is said, except in the cases

hereinafter excepted, to defame that

person.

Explanation 1 .—It may amount to

defamation to impute anything to a

deceased person, if the imputation

would harm the reputation of that

person if living, and is intended to be

hurtful to the feelings of his family

or other near relatives.

Explanation 2 .—It may amount to

defamation to make an imputation

concerning a company or an association

or collection of persons as such.

Explanation 3.—An imputation in the

form of an alternative or expressed

ironically, may amount to defamation.

Explanation 4.—No imputation is said

to harm a person's reputation, unless

79

that imputation directly or indirectly,

in the estimation of others, lowers the

moral or intellectual character of that

person, or lowers the character of that

person in respect of his caste or of

his calling, or lowers the credit of

that person, or causes it to be

believed that the body of that person

is in a loathsome state, or in a state

generally considered as disgraceful.”

46. It will be noticed that for

something to be defamatory, injury to

reputation is a basic ingredient. Section

66-A does not concern itself with injury

to reputation. Something may be grossly

offensive and may annoy or be inconvenient

to somebody without at all affecting his

reputation. It is clear, therefore, that

the section is not aimed at defamatory

statements at all.”

(Emphasis supplied)

96.At any rate, Section 66A has been declared

unconstitutional by this Court. Apart from Section 66A,

there is obviously no other provision in the Act which

deals with defamation in the electronic form. In that

way, the subject of defamation would be governed by

Section 500 of the IPC. Therefore, the reliance placed

80

on Shreya Singhal (supra) is without

any basis.

ASSUMING APPELLANT IS AN INTERMEDIARY: A BRIEF OVERVIEW

OF THE LAW OF DEFAMATION

97.The next question is proceeding on the basis that

it is the appellant which is the intermediary within

the meaning of the Act whether the appellant could be

foisted with liability in a case where appellant is

being proceeded against in a criminal case for having

committed the offence under Section 500 read with

Section 120B of the IPC. In this regard, let us

consider the contentions of the complainant. It is

first contended that the appellant’s role in the

control of Google Groups as publisher is a question of

fact. It is pointed out that Google has control on the

content being uploaded by the authors. It has full

freedom to remove any content without reference to

anyone much less court orders. Google itself recognizes

that defamation is not an accepted conduct and takes an

undertaking from its users. Google cannot claim to be

81

mere passive technology service provider which is

promoting free speech. It provides various tools to

create/edit/modify the content apart from uploading the

content. It is contended that for the purpose of

defamation, Google may have some defence till such time

till they are not aware of the defamatory content.

However, once they are made aware of the defamatory

content, then, by allowing the same to continue,

refusing to exercise control as platform provider, it

becomes fully liable for the consequences of publishing

defamatory material. Being a technology giant, is not a

license to break laws. It does not provide immunity

from the liability under the IPC.

98.There is an attempt by the appellant before us to

contend that even taking the averments in the posts

which have been uploaded by the first accused, it would

not amount to defamation. The essence of the offence of

defamation, as defined in Section 499, would consist of

words either spoken or intended to be read or by signs

or by visible representations making or publishing any

82

imputation concerning any person with the intention to

harm or knowing or having reason to believe that such

imputation will harm the reputation of that person

subject to the Exceptions and Explanations which follow

the main provision. Explanation II declares that it may

amount to defamation to make an imputation concerning a

company or an association or collection of persons as

such. Explanation IV reads as follows:

“Explanation 4.—No imputation is said

to harm a person’s reputa tion, unless that

imputation directly or indirectly, in the

estimation of others, lowers the moral or

intellectual character of that person, or

lowers the character of that person in

respect of his caste or of his calling, or

lowers the credit of that person, or

causes it to be believed that the body of

that person is in a loathsome state, or in

a state generally considered as disgrace -

ful.”

99.It is undoubtedly true that the first Exception

exempts from criminal liability, statements which are

true and which are required for public good. It reads

as follows:

“First Exception.—Imputation of truth

which public good requires to be made or

published.—It is not defamation to impute

83

anything which is true concerning any

person, if it be for the public good that

the imputation should be made or

published. Whether or not it is for the

public good is a question of fact.”

100.The 9

th

Exception may be relevant. It reads as

follows:

“Ninth Exception.—Imputation made in

good faith by person for protection of his

or other’s interests.—It is not defamation

to make an imputation on the character of

another provided that the imputation be

made in good faith for the protection of

the interests of the person making it, or

of any other person, or for the public

good. Illustrations

(a) A, a shopkeeper, says to B, who

manages his business—“Sell nothing to Z

unless he pays you ready money, for I have

no opinion of his honesty”. A is within

the exception, if he has made this

imputation on Z in good faith for the

protection of his own interests.

(b) A, a Magistrate, in making a report of

his own superior offi cer, casts an

imputation on the character of Z. Here, if

the imputation is made in good faith, and

for the public good, A is within the

exception. Tenth Exception.—Caution

intended for good of person to whom

conveyed or for public good.—It is not

defamation to convey a caution, in good

faith, to one person against another,

provided that such caution be intended for

84

the good of the person to whom it is

conveyed, or of some person in whom that

person is inter ested, or for the public

good. COMMENTS Imputation without

publication In section 499 the words

“makes or publishes any imputation” should

be interpreted as words supple menting to

each other. A maker of imputation without

publication is not liable to be punished

under that section; Bilal Ahmed Kaloo v.

State of Andhra Pradesh, (1997) 7 Supreme

Today 127.”

101.We would not think that it would be appropriate,

proper or legal for the court to accept the submission

of the appellant that the post in question do not

constitute defamation. This is for the reason that such

an exercise would be out of bounds in the facts of this

case, in particular, in a petition filed under Section

482 of the Cr.PC. As to whether it constitute

defamation and as to whether it falls in any of the

Explanations/Exceptions, would be all matters to be

decided by the court.

102.The question which remains is everything being

assumed in favour of the complainant, viz., that the

first accused has posted defamatory material by

85

uploading it on the platform and the appellant is an

intermediary providing the said platform, the argument

of the appellant is that even then, the appellant is

not liable. We have noticed the stand of the Government

of India also. An intermediary provides a platform.

Millions of posts are uploaded every day. We have

noticed the definition of words “originator” and

“addressee”. The case of the appellant is that the

originator in this case, the first accused, is the

author of the alleged defamatory material. Unlike an

article which is written by person ‘A’ and which is got

published in a newspaper or publication which is

brought out by a person ‘B’, the case of the appellant

is that the first accused is both the originator, and

therefore, the author and he is also the publisher.

Assuming everything against the appellant as aforesaid,

the offence if at all has been committed, may have been

committed by the first accused. The appellant seeks to

wash its hands off the contents of the article as also

the publication. The responsibility for authoring the

86

material and publishing(uploading) lies at the doorstep

of the fist accused. The appellant has no role at all

in this matter. In such circumstances, it is the case

of the appellant that having regard to the role played

by the appellant, again assuming that it is the

intermediary, involved in this case, it cannot be made

liable. It is the further case of the appellant that at

the most, liability may arise, if a party aggrieved by

material, which can be understood as electronic record

under the Act, approaches the appellant armed with a

court order or an authority directing it to remove the

offending posts. Till then, the appellant is not

liable, in law, to take steps against the material.

This is apart from pointing out that it is incumbent

upon the complaining party to assist the intermediary

by providing it with the URL so that the matter could

be located and action taken. In fact, in this case, it

is pointed out that the appellant, as a good gesture,

upon receipt of complaint, written to parent company,

which, in fact, is the intermediary and the parent

87

company wrote back seeking URL. The actions of the

appellant have been bonafide. It has no role to play in

the commission of the alleged offence. It is in this

context that appellant would contend that in law an

intermediary cannot and should not be designated as the

Competent Authority to decide upon the question as to

whether any material falls foul of the law of

defamation leading to the unilateral interference with

the free exchange of ideas though the internet.

Internet, it is pointed out, is universal, and in the

words of the Government of India, which supports the

appellant in this Court, a democratic medium for the

free exchange of ideas. Any conferment of unilateral

power upon the intermediary would introduce what is

called the chilling effect.

SECTION 499 OF THE IPC: “MAKES OR PUBLISHES”:

DISTINCTION

88

103.It is important that we notice the indispensable

ingredients of the offence under Section 499 of the

IPC. Section 499 reads as follows:

“499. Defamation.—Whoever, by words either

spoken or intended to be read, or by signs

or by visible representations, makes or

publishes any imputation concerning any

person intending to harm, or knowing or

having reason to believe that such

imputation will harm, the reputation of

such person, is said, except in the cases

hereinafter expected, to defame that

person.”

104.Under the said provision, the Law Giver has made

the making or publishing of any imputation with a

requisite intention or knowledge or reason to believe,

as provided therein, that the imputation will harm the

reputation of any person, the essential ingredients of

the offence of defamation. What is the meaning to be

attached to the words “making of an imputation” and

“publishing of an imputation”? This question has been

set out with clarity in a recent judgment which is

89

reported in Mohd. Abdulla Khan v. Prakash K.

25

. It was

held as follows:

“10. An analysis of the above reveals

that to constitute an offence of

defamation it requires a person to make

some imputation concerning any other

person;

(i) Such imputation must be made

either

(a) With intention, or

(b) Knowledge, or

(c) Having a reason to believe

that such an imputation will harm the

reputation of the person against whom

the imputation is made.

(ii) Imputation could be, by

(a) Words, either spoken or

written, or

(b) By making signs, or

(c) Visible representations

(iii) Imputation could be either made

or published.

The difference between making of an

imputation and publishing the same

is:

If ‘X’ tells ‘Y’ that ‘Y’ is a

criminal — ‘X’ makes an imputation.

If ‘X’ tells ‘ Z’ that ‘ Y’ is a

criminal — ‘ X’ publishes the

imputation.

25

(2018) 1 SCC 615

90

The essence of publication in the

context of Section 499 is the

communication of defamatory imputation

to persons other than the persons

against whom the imputation is made.

[Khima Nand v. Emperor, 1936 SCC OnLine

All 307 : 1937 Cri LJ 806; Amar

Singh v. K.S. Badalia, 1964 SCC OnLine

Pat 186 : (1965) 2 Cri LJ 693]”

WHETHER SECTION 499 OF THE IPC EXHAUSTIVE OF CRIMINAL

LIBEL?

105.We may incidentally also notice an earlier judgment

of this Court in this context reported in M.C. Verghese

v. T.J. Poonan and another

26

. The daughter of the

appellant therein, who was married to the respondent

(T.J. Poonan), received certain letters from her

husband which the appellant-father-in-law complained as

containing defamatory statements against him. The

Magistrate took the view that being a communication

between husband and wife, it did not amount to

defamation as there was no publication since in the eye

of law, as the husband and wife are one. He also took

the view that the communication between the spouses was

26

(1969) 1 SCC 37

91

privileged under Section 122 of the Indian Evidence

Act, 1872. This Court reversed the view taken by the

High Court which had upheld the view of the Magistrate

though in the interregnum the Magistrate’s view did not

find favour with the learned Sessions Judge. This Court

took the view that the principle, the husband and wife

are one in the eye of law, has not been adopted in its

full force under our system and certainly not in our

criminal jurisprudence (see paragraph 7). It is,

thereafter, that the Court made following observations:

“10. It must be remembered that the

Penal Code, 1860 exhaustively codifies the

law relating to offences with which it

deals and the rules of the common law

cannot be resorted to for inventing

exemptions which are not expressly

enacted.

11. In Tiruvengadda Mudali v.

Tripurasundari Ammal [ILR 49 Mad

728] a Full Bench of the Madras High

Court observed that the exceptions to

Section 499 IPC, must be regarded as

exhaustive as to the cases which they

purport to cover and recourse can be had

to the English common law to add new

grounds of exception to those contained

92

in the statute. A person making libellous

statements in his complaint filed in

Court is not absolutely protected in a

criminal proceeding for defamation, for

under the Eighth Exception and the

illustration to Section 499 the

statements are privileged only when they

are made in good faith. There is

therefore authority for the proposition

that in determining the criminality of an

act under the Penal Code, 1860 the Courts

will not extend the scope of special

exceptions by resorting to the rule

peculiar to English common law that the

husband and wife are regarded as one.”

106.No doubt, the Court did not express a final

opinion.

107.In the light of this discussion, we may only

reiterate that the criminal offence of defamation under

Section 499 of the IPC is committed when a person makes

a defamatory imputation which, as explained in Mohd.

Abdulla Khan (supra), would consist of the imputation

being conveyed to the person about whom the imputation

is made. A publication, on the other hand, is made when

the imputation is communicated to persons other than

the persons about whom the defamatory imputation is

93

conveyed. A person, who makes the defamatory

imputation, could also publish the imputation and thus

could be the maker and the publisher of a defamatory

imputation. On the other hand, a person may be liable

though he may not have made the statement but he

publishes it.

108.In this case, the case of the appellant appears to

be that it is indisputable that it is the first

defendant who has not only authored the statements

containing imputations which are allegedly defamatory

but it is he who has also published it. In this regard,

the parties before us have drawn our attention to case

law emanating from courts other than in India.

THE DEFAMATION ACTS IN ENGLAND: A LOOK AT SOME

DECISIONS UNDER THE SAME

109.Before we proceed to consider the case law, a

bird’s overview of the law of defamation, as contained

in United Kingdom, may be appreciated. The Defamation

Act of 1952, as contained in Sections 4,7,8,9(2) and

9(3) and Sections 16(2) and 16(3) came to be repealed

94

by the Defamation Act of 1996. The Defamation Act of

2013 further amended the law by declaring that a

statement is not defamatory unless its publication has

caused or is likely to cause serious harm to the

reputation of the claimant which, in the case of body

that trades for profit, it was made clear that the

serious harm would not arise unless there is caused

serious financial loss or likelihood of such loss.

Truth was declared as a defence. Certain defences were

introduced. Considerations of public interest was

introduced in regard to operators of website. Section 5

was enacted, which reads as follows:

“5. Operators of websites

(1)This section applies where an action

for defamation is brought against the

operator of a website in respect of a

statement posted on the website.

(2)It is a defence for the operator to

show that it was not the operator who

posted the statement on the website.

(3)The defence is defeated if the

claimant shows that—

95

(a)it was not possible for the

claimant to identify the person

who posted the statement,

(b)the claimant gave the operator a

notice of complaint in relation

to the statement, and

(c)the operator failed to respond to

the notice of complaint in

accordance with any provision

contained in regulations.

(4)For the purposes of subsection (3)

(a), it is possible for a claimant to

“identify” a person only if the

claimant has sufficient information

to bring proceedings against the

person.

(5)Regulations may—

(a)make provision as to the action

required to be taken by an

operator of a website in response

to a notice of complaint (which

may in particular include action

relating to the identity or

contact details of the person who

posted the statement and action

relating to its removal);

(b)make provision specifying a time

limit for the taking of any such

action;

(c)make provision conferring on the

court a discretion to treat

action taken after the expiry of

96

a time limit as having been taken

before the expiry;

(d)make any other provision for the

purposes of this section.

(6)Subject to any provision made by

virtue of subsection (7), a notice of

complaint is a notic e which—

(a)specifies the complainant’s name,

(b)sets out the statement concerned

and explains why it is defamatory

of the complainant,

(c)specifies where on the website

the statement was posted, and

(d)contains such other information

as may be specified in

regulations.

(7)Regulations may make provision about

the circumstances in which a notice

which is not a notice of complaint is

to be treated as a notice of

complaint for the purposes of this

section or any provision made under

it.

(8)Regulations under this section—

(a)may make different provision for

different circumstances;

(b)are to be made by statutory

instrument.

(9)A statutory instrument containing

regulations under this section may

not be made unless a draft of the

instrument has been laid before, and

97

approved by a resolution of, each

House of Parliament.

(10)In this section “regulations” means

regulations made by the Secretary of

State.

(11)The defence under this section is

defeated if the claimant shows that

the operator of the website has acted

with malice in relation to the

posting of the statement concerned.

(12)The defence under this section is not

defeated by reason only of the fact

that the operator of the website

moderates the statements posted on it

by others.”

110.There are other provisions which need not detain

us. We may, no doubt, also notice the meaning of the

word “publish”, inter alia, as contained in Section 15

of the Defamation Act, 2013:

“15. … “publish” and “ publication”, in

relation to a statement, have the meaning they

have for the purposes of the law of defamation

generally;”

111.The Act was to apply only to England and Wales.

Certain provisions were to apply to Scotland also.

98

112.It may be noticed, however, that the Defamation

Act, 1996, as indeed the Defamation Act, 1952, provided

as follows:

113.In Section 20(2) of the Defamation Act, 1996, it is

stated that nothing in the said Act affected the law

relating to criminal libel. There is a similar

provision in the Defamation Act, 1952. Section 17(2) of

the Defamation Act, 1952 also declared that nothing in

the Act affected the law relating to criminal libel.

114.Criminal libel, however, came to be repealed by the

Coroners and Justice Act, 2009.

115.The complainant would refer to judgment in Byrne v.

Deane

27

as also Payam Tamiz v. Google Inc.

28

. The

appellant, on the other hand, relied upon the judgment

of the Queens Bench in Bunt v. Tilley

29

. There is also

reference by the respondent to the judgment in Godfrey

v. Demon Internet Limited

30

. Let us now take these cases

27

(1937) 1 KB 818

28

(2013) EWCA CB 68

29

(2006) EWHC 407

30

(2001) QB 201

99

in the chronological order and the context in which the

matter arose and was decided.

116. In Byrne (supra), the facts may be noticed. The

complainant was a member of a Golf Club. The defendants

were the proprietors and the female defendant was also

the Secretary. The rules of the Club, inter alia,

prohibited posting of any notice or placard in the Club

premises without the consent of the Secretary. There

were certain automatic gambling machines kept by the

defendants for the use of the members of the Club. On a

complaint, the machines were removed from the Club

premises. Alleging that a defamatory verse was put up

on the wall of the Club, the plaintiff brought an

action in libel alleging publication by the defendants

of matter defamatory to him. In short, it was his case

that the words were meant to convey that it was the

plaintiff who reported the matter to the Police which

undermined his loyalty to the members of the Club. The

learned Judge, who heard the civil action for damages,

gave judgement to the plaintiff. He came to the

100

conclusion that the matter complained of was

defamatory. He further found that since the defendants

allowed the notice to remain on the walls of the Club,

over which the defendants have complete control, the

publication of it was made with their approval and they

had, therefore, published that libel. As regards the

question whether there was publication by the

defendants, the Court, by a majority, took the view

that there was publication. Greer L.J. held as follows:

“… It was a proprietary club. The

difference between a proprietary club and

an ordinary club is that in a proprietary

club the proprietor or proprietors remain

in possession of the club. The two

defendants are the lessees of the club and

they are the occupiers of the club

premises, and the walls are their walls,

and in my judgment they allowed a

defamatory statement to be put up on their

walls and to remain on their walls in a

position in which it could be read by

anybody who came into the club.

Undoubtedly it must have been so read not

only by people who were members of the

club but by people who were not members of

the club, and who only came in possibly

for a drink with a member or to play a

game of some sort or another.

101

Quite a number of illustrations have

been put forward as illustrations which

give rise to similar questions to the

question that arises in this case. In my

judgment the nearest case put forward is

this: assume that a defamatory poster was

hung upon the garden rail of Mr. Smith's

house which adjoins the street so that the

defamatory statement can be read by every

one who passes the house. Could it not be

said that by allowing that poster to

remain hanging upon the garden rail of his

house the occupier of the house was taking

part in the publication of that poster to

people passing his house, when the

simplest operation in the world, namely,

cutting the rope by which the poster was

hung upon the rail and taking the poster

away, would have made the poster from that

time innocuous? In my judgment the two

proprietors of this establishment by

allowing the defamatory statement, if it

be defamatory, to rest upon their wall and

not to remove it, with the knowledge that

they must have had that by not removing it

it would be read by people to whom it

would convey such meaning as it had, were

taking part in the publication of it. …”

117.Slesser L.J. wrote a separate opinion wherein he

took the view that complainant had failed to show

publication against the male defendant. With regard to

the female defendant, it was held as follows:

102

“… With regard to the female

defendant I think it may be said —

although it is perhaps extending the

evidence of publication rather further

than has ever been done in the past in any

case which I have been able to discover —

that there was some evidence of

publication on the part of the female

defendant. ...”

118.Greer L.J., further held as follows:

“No notice or placard, written or

printed, shall be posted in the club

premises without the consent of the

secretary,” and her evidence is to this

effect, that she knew that this alleged

libel had been placed on the wall of the

club. Her view was that she could see no

harm in it. She said: “I read it. It

seemed to me somebody was rather annoyed

with somebody.” I think having read it,

and having dominion over the walls of the

club as far as the posting of notices was

concerned, it could properly be said that

there was some evidence that she did

promote and associate herself with the

continuance of the publication in the

circumstances after the date when she knew

that the publication had been made.”

119.Greene L.J., took the view that there was evidence

of publication by both the defendants. It was held as

follows:

103

“Now, on the substantial question of

publication, publication, of course, is a

question of fact, and it must depend on

the circumstances in each case whether or

not publication has taken place. It is

said that as a general proposition where

the act of the person alleged to have

published a libel has not been any

positive act, but has merely been the

refraining from doing some act, he cannot

be guilty of publication. I am quite

unable to accept any such general

proposition. It may very well be that in

some circumstances a person, by refraining

from removing or obliterating the

defamatory matter, is not committing any

publication at all. In other circumstances

he may be doing so. The test it appears to

me is this: having regard to all the facts

of the case is the proper inference that

by not removing the defamatory matter the

defendant really made himself responsible

for its continued presence in the place

where it had been put ?

I may give as an example of a case

which would fall on one side of the line:

suppose somebody with a mallet and a

chisel carved on the stonework of

somebody's house something defamatory, and

carved it very deeply so that the removal

of it could only be effected by taking

down the stonework and replacing it with

new stonework. In a case of that kind it

appears to me that it would be very

difficult, if not indeed impossible, to

104

draw the inference that the volition of

the owner of the house had anything to do

with the continued presence of that

inscription on his stonework. The

circumstance that to remove it would

require very great trouble and expense

would be sufficient to answer any such

aspersion.

On the other hand you have a case

such as the present where the removal of

this particular notice was a perfectly

simple and easy thing to do involving no

trouble whatsoever. The defendants, having

the power of removing it and the right to

remove it, and being able to do it without

any difficulty at all, and knowing that

members of the club when they came into

the room would see it, I think must be

taken to have elected deliberately to

leave it there . The proper inference,

therefore, in those circumstances it seems

to me is that they were consenting parties

to its continued presence on the spot

where it had been put up. That being so it

seems to me that they must be taken to

have consented to its publication to each

member who saw it. …”

(Emphasis supplied)

120.In Godfrey (supra), the case was a civil action.

The complainant was a Lecturer in Physics, Mathematics

and Computer Science resident in England. The defendant

was an internet service provider. On the 13

th

of

105

January, 1997, some unknown person made a post in the

U.S.A. in news group soc.culture.thai and stores which

was carried on by the defendant. For about a fortnight,

the posting was available to be read by its customers.

According to the complainant, it was defamatory, inter

alia, to him. It purported to emanate from the

complainant though his name was misspelt. Complainant

claimed it to be a forgery. He sent a letter to the

Managing Director of the defendant-company about the

posting being a forgery and disowning responsibility of

the same, he requested removal of the same from the

server. It was not disputed by the defendant that it

could have obliterated the post after receiving the

request. The court examined the matter thereafter, on

the basis of the governing law, viz., Defamation Act,

1996. The following discussion is relevant:

“The law

The governing statute is the Defamation

Act 1996. Section 1, which is headed

106

“Responsibility for publication”,

provides:

(1) In defamation proceedings a

person has a defence if he shows that—

(a) he was not the author, editor or

publisher of the statement complained

of, (b) he took reasonable care in

relation to its publication, and (c) he

did not know, and had no reason to

believe, that what he did caused or

contributed to the publication of a

defamatory statement.”

It should be noted that for the defence

to succeed (a) and (b) and (c) have to be

established by the defendant. Section 1

continues:

“(2) For this purpose … ‘publisher’

[has] the following meanings, which are

further explained in subsection (3) …

‘publisher’ means a commercial

publisher, that is, a person whose

business is issuing material to the

public, or a section of the public, who

issues material containing the

statement in the course of that

business.

“(3) A person shall not be considered

the author, editor or publisher of a

statement if he is only involved—(a) in

printing, producing, distributing or

selling printed material containing the

107

statement … (c) in processing, making

copies of, distributing or selling any

electronic medium in or on which the

statement is recorded, or in operating

or providing any equipment, system or

service by means of which the statement

is retrieved, copied, distributed or

made available in electronic form … (e)

as the operator of or provider of

access to a communications system by

means of which the statement is

transmitted, or made available, by a

person over whom he has no effective

control. In a case not within

paragraphs (a) to (e) the court may

have regard to those provisions by way

of analogy in deciding whether a person

is to be considered the author, editor

or publisher of a statement …

“(5) In determining for the purposes

of this section whether a person took

reasonable care, or had reason to

believe that what he did caused or

contributed to the publication of a

defamatory statement, regard shall be

had to—(a) the extent of his

responsibility for the content of the

statement or the decision to publish

it, (b) the nature or circumstances of

the publication, and (c) the previous

conduct or character of the author,

editor or publisher.”

108

In my judgment the defendants were

clearly not the publisher of the posting

defamatory of the plaintiff within the

meaning of section 1(2) and (3) and

incontrovertibly can avail themselves of

section 1(1)(a). However the difficulty

facing the defendants is section 1(1)(b)

and (c). After 17 January 1997, after

receipt of the plaintiff's fax, the

defendants knew of the defamatory posting

but chose not to remove it from their

Usenet news servers. In my judgment this

places the defendants in an insuperable

difficulty so that they cannot avail

themselves of the defence provided by

section 1.”

(Emphasis supplied)

121.The court purported to follow the judgment in Byrne

(supra) and held as follows:

“… The defendants chose to store

soc.culture.thai postings within their

computers. Such postings could be accessed

on that newsgroup. The defendants could

obliterate and indeed did so about a

fortnight after receipt .”

(Emphasis supplied)

109

122.The court finally concluded that the plaintiffs

summons to strike out parts of the defence as

disclosing no sustainable defence which was to the

effect that in common law, they were not publishers of

the internet posting. The plaintiff’s summons was

allowed to strike out the defence.

123.Now, we may turn to Bunt (supra) decided on

10.03.2006 by the Queen’s Bench Division of the High

Court. Defendants 4 to 6 in the civil proceeding were

internet service providers. The service providers

applied under Civil Procedure Rules (CPR) 3.4(2) and

(CPR) 24 for an order to the High Court. The claim of

the plaintiff was based on the allegation that the

individual defendants published the offending words

through the services provided by the internet service

providers. In paragraph 7, the Court considered it

necessary to consider the defence relied upon by the

parties which, in fact, was admissible for the purpose

of CPR Part 24. The court referred to the decision in

110

Godfrey (supra). The court also held, inter alia, as

follows:

“15. Publication is a question of fact,

and it must depend on the circumstances of

each case whether or not publication has

taken place: see e g Byrne v Deane [1937]

1 KB 818, 837–838, per Greene LJ. The

analogies that were held to be

inappropriate in Godfrey v Demon Internet

Ltd might yet be upheld where the facts do

not disclose onward transmission with

knowledge of the defamatory content. As Dr

Collins observes in The Law of Defamation

and the Internet, para 15.43:

“Mere conduit intermediaries who

carry particular Internet

communications from one computer to

another … are analogous to postal

services and telephone carriers in

the sense that they facilitate

communications, without playing any

part in the creation or preparation

of their content, and almost always

without actual knowledge of the

content.”

Such an approach would tend to

suggest that at common law such

intermediaries should not be regarded as

responsible for publication. Indeed, that

is consistent with the approach

in Lunney where the New York Court of

Appeals drew an analogy between an ISP and

a telephone company “which one neither

wants nor expects to superintend the

111

content of his subscriber's

conversations”.

xxx xxx xxx

22. I have little doubt, however, that

to impose legal responsibility upon anyone

under the common law for the publication

of words it is essential to demonstrate a

degree of awareness or at least an

assumption of general responsibility, such

as has long been recognised in the context

of editorial responsibility. As Lord

Morris commented in McLeod v St

Aubyn [1899] AC 549, 562: “A printer and

publisher intends to publish, and so

intending cannot plead as a justification

that he did not know the contents. The

appellant in this case never intended to

publish.” In that case the relevant

publication consisted in handing over an

unread copy of a newspaper for return the

following day. It was held that there was

no sufficient degree of awareness or

intention to impose legal responsibility

for that “publication”.

23. Of course, to be liable for a

defamatory publication it is not always

necessary to be aware of the defamatory

content, still less of its legal

significance. Editors and publishers are

often fixed with responsibility

notwithstanding such lack of knowledge. On

the other hand, for a person to be held

responsible there must be knowing

involvement in the process of publication

of the relevant words . It is not enough

112

that a person merely plays a passive

instrumental role in the process. (See

also in this context Emmens v

Pottle (1885) 16 QBD 354, 357, per Lord

Esher MR.)

xxx xxx xxx

30. In so far as the claimant seeks

support in Godfrey Demon Internet

Ltd [2001] QB 201, there are plainly

significant distinctions. Morland J

deprived the ISP in that case from

protection under section 1 of the 1996 Act

because it had continued publication of

the same defamatory statements after Mr

Godfrey's letter had been received, asking

for them to be removed from the Usenet

news server. Here, by contrast, the

claimant is relying upon separate

postings. In these there is no reference

to batteries, but rather to suggestions of

fraud and “kiddie porn”. There are no

pleaded facts to suggest any knowing

participation by AOL in the publication

of these words.

31. Ms Phillips accordingly submits

that an ISP should not become liable as a

publisher (especially for postings on a

site which it does not host) simply

because it has been previously told of

wholly unrelated allegedly defamatory

statements, not necessarily even by the

same author. That is a powerful argument

which is relevant, as I have said, both to

the fundamental issue of publication at

113

common law and to statutory defences which

I shall have to consider later.

xxx xxx xxx

36. In all the circumstances I am

quite prepared to hold that there is no

realistic prospect of the claimant being

able to establish that any of the

corporate defendants, in any meaningful

sense, knowingly participated in the

relevant publications. His own pleaded

case is defective in this respect in any

event. More generally, I am also prepared

to hold as a matter of law that an ISP

which performs no more than a passive role

in facilitating postings on the Internet

cannot be deemed to be a publisher at

common law. I would not accept the

claimant's proposition that this issue

“can only be settled by a trial”, since it

is a question of law which can be

determined without resolving contested

issues of fact.”

(Emphasis supplied)

124.Thereafter, the Court also referred to the

Electronic Commerce Directive (Regulations), 2002.

Still further, the Court referred in detail to the

witness statement of the Director (Technical and

Operations) in AOL:

114

“53. There is no expert challenge to

that evidence, and I have no reason to

doubt that it represents the true

position. How then does the claimant

propose to overcome the protection claimed

by the fourth and fifth defendants under

these Regulations? As I have said, he

relies on “simple logic”. He does not rely

on any expert report. I turn therefore to

his case as clarified in the light of the

order of Gray J.

54. It is necessary to consider para

19 of the amended particulars of claim

which advances a proposition to the effect

that there is an obligation to “gatekeep”

its conduit. The nub of this submission

appears to be contained in sub-paras (i)

and (j):

“(i) An ISP providing a leased line

connection to a customer has an

extremely good argument under both the

Defamation Act 1996 and also the

Electronic Commerce Directive 2002 that

it is no more than a ‘conduit’, that it

has no knowledge or control over what

passes through that ‘conduit’, and that

the entire responsibility for what does

pass through that ‘conduit’ rests with

the customer who has purchased it, as

it is the customer and not the ISP who

acts as a ‘gatekeeper’ for that

‘conduit’. An ISP providing a standard

115

domestic consumer or SOHO Internet

access package to a customer has no

possible hope of successfully arguing

that it is a mere ‘conduit’ and

therefore immune from that law, as all

content originates from within their

own network, instead of merely passing

through it in ‘Via’ fashion from one

network to another.

“(j) In these circumstances not only

is the ISP most definitely acting as

sole ‘gatekeeper’ between the source of

the defamatory material and the

Internet, they also provide a bundle of

other services … each of which clearly

falls foul of the other provisions of

the Electronic Commerce Directive 2002

which, for example, only allows the

minimum level of cacheing technically

necessary for the underlying technology

of message transmission to function.”

The notion of a “gatekeeper”

appears to derive from the claimant

himself; it is nowhere to be found in

the regulations.”

xxx xxx xxx

77. In conclusion, I am quite

satisfied that the claims against

these applicants should be struck out

in accordance with CPR Pt 3, and

indeed that there would be no

realistic prospect of success on any

116

of the causes of action. Thus the

criteria under CPR Pt 24 would also

be fulfilled.”

125.At this juncture, it is necessary also to refer to

CPR 3.4(2):

“Power to strike out a statement of case

3.4.(2) The court may strike out(GL) a

statement of case if it appears to the

court—

(a)that the statement of case discloses

no reasonable grounds for bringing or

defending the claim;

(b)that the statement of case is an

abuse of the court’s process or is

otherwise likely to obstruct the just

disposal of the proceedings; or

(c) that there has been a failure to

comply with a rule, practice

direction or court order.”

126.In Richardson (supra), decided on 02.11.2015, the

claimant sought damages in respect of publication on a

Facebook profile and a blog post on the Google blogger

service. The profile and the blog post were purportedly

created by that claimant but the claimant complained

that they were fake being created by an imposter. She

claimed that both were defamatory and violated her

117

right to respect for her private life under Article 8

of the European Convention on Human Rights. Proceedings

were commenced against Facebook U.K. in respect of the

profile they described as the Facebook action and

against Google U.K. Limited in respect of the blog

post, shown as the Google action. The action came to be

dismissed. The principle ground was that the suit was

against the company which was not responsible for the

publication which meant that she had prosecuted the

case against the wrong defendant. In appeal, she cited

certain issues to be referred to the Court of Justice

of the European Union. The Court referred to Bunt

(supra), Godfrey (supra) and Byrne (supra). The Court

held as follows:

“32. The underlying rationale of the

decision in Byrne v Deane, that the

defendants were responsible for

publication, was that they were in control

of the notice board and had the power to

act so as to remove a posting by a third

party which was unauthorised and wrongful;

by failing to exercise that power in the

knowledge of the posting they became

liable for its continued publication. This

rationale is plainly capable of applying

118

to some of those involved in the provision

of internet services and social media

platforms.”

(Emphasis supplied)

127.Thereafter, the Court went on to notice that the

Defamation Act, 1996, mitigated the rigor of the common

law principles by providing a defence for those who by

application of those principles were publishers of

common law. Court further went on to hold that internet

service providers and others are not responsible for

publication according to the common law principles

discussed, that is to say, who were not publishers at

common law, had no need to take resort under the

Defamation Act. The court went on to refer to

Defamation Act, 2013 which came into force on

01.01.2014. Further, the court held as follows:

“39. The pleading acknowledges on its

face that Facebook Inc "owns" the Facebook

Service and the associated website. It

appears to adopt the statement in the

terms of service that Facebook Ireland Ltd

is, according to the terms of service,

responsible for processing data outside

the US and Canada. So far as FBUK is

concerned, there is an allegation that it

119

was notified of the offending postings.

However, the pleading wholly fails to

advance against FBUK any clear or coherent

case that it has or had any form of

control over any aspect of the content of

the Facebook Service, let alone the

Profile. The allegation that FBUK was

notified of the claimant's complaint goes

beyond what is alleged earlier in the

pleading, where notification is said to

have been given to "the Facebook Service"

and "Facebook". It also appears to be

factually untenable. But even if it were

true it could not, in the absence of an

allegation that FBUK had the power or

ability to control content, form a proper

basis for the attribution of

responsibility for publication on the

basis of Byrne v Deane principles.”

128.The court further observed that on the evidence,

the claimant had known Byrne (supra) without any

prospect of success. In this regard, the court relied

on the evidence led which was to the effect that the

claim was fundamentally defective because Facebook U.K.

Limited had no involvement or responsibility for the

Facebook service. The material further was to the

effect that the Facebook service was operated by

Facebook Inc., a corporation existing under the laws of

the United States. Facebook Ireland Limited, a company

120

organized and existing under the laws of the Republic

of Ireland has explained in its terms of service that

users outside of the United States of America and

Canada contracted with the Facebook Ireland Limited ….”

129.The material was to the effect that Facebook U.K.

Limited was a separate and distinct entity. Facebook

U.K. Limited’s sole corporate purpose is public

relation, consultancy, and communications in the United

Kingdom. There was also reference to decisions of

English Courts previously finding that Facebook U.K.

Limited do not control or operate the Facebook

services.

130.The court took the view that Facebook U.K. Limited

persuaded it that if there were a trial, it would

inevitably demonstrate that it was not responsible. An

attempt was made by the claimant to draw support from

Google Spain SL (supra) decision. The argument appears

to have been that on the basis of the said decision,

Facebook Inc. and its subsidiaries were to be treated

as a single economic unit and Facebook U.K. Limited

121

should also be responsible for the publication of the

profile. The court rejected the contention. One of the

reasons given was that Google Spain SL

(supra) was a decision which was based on the scope and

application of the data protection directions. The

court took the view that the decision in Google

Spain SL (supra) had nothing to say about the domestic

law of responsibility of publication in defamation. It

was a matter to be determined by the common law and the

Defamation Acts. It was further found that claimant had

misunderstood the relevant aspect of the Google Spain

SL (supra) decision. It was found that the Court of

Justice of European Union (CJEU) did not hold

that parent and subsidiary companies are to be treated

as a single unit. Google Spain SL (supra)

revolved around the interpretation and application of

Article 4(1) of the Directive. The court went on to

hold that the controller within the meaning of the

directives was Google Inc.. In Google Spain SL (supra),

court held that Google Spain was not a data controller.

122

131.On the one hand, the appellant sought to draw

support from Richardson (supra) whereas, on the other

hand, the complainant laid store by Google Spain SL

(supra). We have noticed the context in which the

questions arose. As far as English decision is

concerned, it was a civil action. The material before

the learned Judge who allowed the application by

Facebook U.K. Limited and Google U.K. was apparently in

terms of the procedural laws, perhaps akin to Order VII

Rule 11 of the Code of Civil Procedure, 1908. More

importantly, there was material before the court even

in dismissing the claims on the application of the

defendants.

132.We are, in this case, concerned with the ambit of

jurisdiction under Section 482 of the Cr.PC. We also

notice that the decision rendered in Google Spain SL

(supra) appears to have turned on the scope of the

directive as noticed in Richardson (supra).

EFFECT OF SUBSTITUTION OF SECTION 79 OF THE ACT

123

133.Section 79 of the Act came to be substituted with

effect from 27.10.2009. In fact, the effect of

substitution of a provision has been dealt with by this

Court in the decision in State of Rajasthan v. Mangilal

Pindwal

31

:

“10. Similarly in Crawford's

Interpretation of Laws it has been said:

“Effect of Repeal, Generally .— In the

first place, an outright repeal will

destroy the effectiveness of the

repealed act in futuro and operate to

destroy inchoate rights dependent on

it, as a general rule. In many cases,

however, where statutes are repealed,

they continue to be the law of the

period during which they were in force

with reference to numerous matters.”

(pp. 640-641)

11. The observations of Lord

Tenterden and Tindal, C.J. referred in the

above-mentioned passages in Craies on

Statute Law also indicate that the

principle that on repeal a statute is

obliterated is subject to the exception

that it exists in respect of transactions

past and closed. To the same effect is the

law laid down by this Court. (See: Qudrat

31

(1996)5 SCC 60/AIR 1996 SC 2181

124

Ullah v. Municipal Board [(1974) 1 SCC

202:(1974) 2 SCR 530], SCR at p. 539)

12. This means that as a result of

repeal of a statute the statute as

repealed ceases to exist with effect from

the date of such repeal but the repeal

does not affect the previous operation of

the law which has been repealed during the

period it was operative prior to the date

of such repeal. …”

134.In this case, the complaint itself is dated

21.01.2009. The sworn statement of Deputy Manager

(Legal) of the complainant is recorded on 27.02.2009.

The sworn statement reads as follows:

“I am the complainant herein. I am

working a1s Deputy Manager-legal in the

complainant company. Complainant company

manufactures Asbestos Cement sheets and it

is having various manufacture units throw

out India. Accused No.1 is a coordinator

of Ban Asbestos India a Group hosted by

Accused No.2 and publishes articles in the

group regarding various issues on 21

st

November, 2008 an article was published in

A2 group as Poisoning the system:

Hindustan times. Complainant was surprised

to note that article is aimed at

complainant company and also against

renowned politicians of the country i.e.

Mr. G. Venkat Swamy and Smt. Sonia Gandhi

125

where as these people have nothing to do

with the complainant company and again on

31

st

July, 2008 an article was captioned

A2 Group as Visaka Asbestos Industries

making gains both articles contains

defamatory statements against the

complainant which is available in the

cyber space in the form of an article for

world wide audience. The complainant

submits acts and deeds of the accused not

only harm the complainant company but also

integrity of the working people.

Complainant humbly submits that there are

other groups like Everest Group, Ramco

Group and Birla Group which are also

engaged in the same group. But the accused

No.1 unnecessarily dragged the complainant

and the politicians of the country with

malicious intention. The complainant

further submits that A1 trying to bring

down the complainant image by running hate

campaign against the complainant through

the above said articles. After seeing this

article the complainant has sent notice

dated 10.12.2008 through Registered Post

which A1 returned unserved and the Fax was

received by both the accused. The above

article caused damage to the reputation of

the complainant. A1 with malafide

intention to cause damage to the

reputation to complainant has published

such articles. I further submit that the

acts and deeds of the accused being

committed in violation of the fundamental

rights and the action on the part of the

accused in making such defamatory

statements are premeditated and intended

to lower the image cause defamation in the

eyes of public knowing fully well that the

statements made there in are false and the

126

complainant company and others are being

targeted by the accused with an hidden

agenda. It is therefore pay the Hon’ble

Court to punish the accused according to

law. …”

135.It is seen that the Magistrate has issued summons

to the appellant vide Annexure P5 calling upon him to

appear before the Court on 09.09.2009. If that be so,

not only was the complaint filed at the time when

Section 79, in its erstwhile avtar, was in force before

the present provision was enforced, cognizance

thereunder was also taken. If that be so, the question

of exemption from liability may fall to be decided

under Section 79 of the Act as it stood and not under

the substituted provision.

WHETHER APPELLANT NOT LIABLE AS IT IS ONLY A SUBSIDIARY

136. As far as the question whether being a subsidiary

of Google LLC, the appellant is an independent body

which is not to be mulcted with liability, we would

think it is not a matter to be gone into in Section 482

127

of the Cr.PC. We have noticed the stand of the

Government of India also as also of the complainant.

FINDINGS OF HIGH COURT REGARDING COMPLAINANT’S NOTICE

AND CONDUCT OF THE APPELLANT

137.In the impugned judgment, the learned Judge has

proceeded to refer to the notices, which was, according

to the complaint, issued, calling upon the appellant to

remove the objectionable post. It is found that the

appellant did not move its little finger to stop

dissemination of the unlawful and objectionable

material. Therefore, the appellant cannot claim

exemption under either Section 79 of the Act, as it

stood originally, or Section 79 of the Act, after the

amendment which took effect from 27.10.2009. It was

further found that as per Section 79(3), as amended,

the exemption cannot be applied by any court and

claimed by an intermediary in case an intermediary

entered into any conspiracy in respect thereof. It is

in this regard that we may notice that there is a

definite case for the complainant that there was a

conspiracy between the appellant and the first accused

128

as it is alleged in the complaint that the accused, in

connivance with each other, have disseminated the

information with malafide intention. There is also

reference to Section 120B of the IPC besides Sections

500, 501 read with Section 34 of the IPC. As far as the

view expressed in the impugned order that the appellant

cannot claim any exemption under Section 79 of the Act

after the amendment, is concerned, we are of the view

that it appears to be in the teeth of the pronouncement

of this Court in Shreya Singhal (supra). Section 79, as

substituted, came to be read down to mean that it is

not sufficient if a notice is given to delete a post to

the intermediary. The applicant, who seeks a removal,

must be armed with a court order. In this case, there

is no case for the complainant that when the removal

was sought of the objectionable post, there was any

decision of any competent court or that there was any

directive of a competent authority to remove the post.

Therefore, in the light of Shreya Singhal (supra), the

129

finding, clearly of the High Court, in this regard,

appears to be unsustainable and we hold so.

138.The finding by the High Court that in the case on

hand, in spite of the complainant issuing notice,

bringing it to the notice of the appellant about the

dissemination of defamatory matter on the part of the

first accused through the medium of appellant,

appellant did not move its little finger to block the

said material to stop dissemination and, therefore,

cannot claim exemption under Section 79 of the Act, as

it originally stood, is afflicted with two flaws. In

the first place, the High Court itself has found that

Section 79, as it originally was enacted, had nothing

to do with offences with laws other than the Act. We

have also found that Section 79, as originally enacted,

did not deal with the effect of other laws. In short,

since defamation is an offence under Section 499 of the

IPC, Section 79, as it stood before substitution, had

nothing to do with freeing of the appellant from

liability under the said provision. Secondly, there is

130

a case for the appellant that on receipt of notice, the

appellant, as a gesture, forwarded its complaint to its

Parent Company Google LLC which called for the details

by its letter dated 06.01.2009. The complaint came to

be filed on 21.01.2009. We do not think that the High

Court was justified, therefore, in entering findings in

the manner it was done. Further, the High Court has not

taken into consideration the distinction between

blocking and a takedown.

139.Even Section 79, as substituted with effect from

27.10.2009, denies the benefit of the exemption in a

case where there is a conspiracy between the

intermediary or abetting or aiding or inducing or

otherwise in the commission of the unlawful act. Again,

we notice that the case in the complaint is that there

was connivance between the accused. This is not a

matter which we feel could be considered to be

proceeded under Section 482 of the Cr.PC.

140.We may also notice that in the Civil Suit also, the

complainant maintains that the appellant is the service

131

provider and it has abused the services provided by it

(see paragraph 11 of the plaint). Appellant is,

undoubtedly, the second defendant whereas Google Inc.

has also been made a party as third defendant. We say

this as appellant has a case that in the Civil Suit,

the complainant has set up a case that it is Google LLC

which was the actual service provider.

PUBLICATION

141.If defamatory matter is published as to who

published it, is a question of fact. As already noted,

publication involves bringing defamatory matter to the

knowledge of a person or persons other than the one who

is defamed. We would approve of the principles laid

down by Greene L.J. in Byrne (supra) that “in some

circumstances, a person by refraining from removing or

obliterating the defamatory matter, is not committing

any publication at all. In other circumstances, he may

be doing so. The test, it appears to me is this: having

regard to all the facts of the case, is the proper

inference that by not removing the defamatory matter,

132

the defendant really made himself responsible for its

continued presence in the place where it has been put?”

Whether there is publication, indeed involves asking

the question also as noted by the learned Judge, as to

whether there was power and the right to remove any

such matter. If despite such power, and also, ability

to remove the matter, if the person does not respond,

it would amount to publication. The said principle, in

our view, would hold good even to determine whether

there is publication under Section 499 of the IPC. The

further requirement, no doubt, is indispensable, i.e.,

it must contain imputations with the intention to harm

or with knowledge or having reasons to believe that it

will harm the reputation of the person concerned.

142.In this case, the substantial complaint of the

complainant appears to be based on the refusal by the

appellant to remove the matter after being notified.

Publication would be the result even in the context of

a medium like the internet by the intermediary if it

defies a court order and refuses to takedown the

133

matter. This, undoubtedly, is the position even under

the decision in Shreya Singhal (supra) which has read

down Section 79(3)(b) and the Intermediary Rules

already noted.

143.In this regard, we may notice the following

statement in the complaint: -

“Complainant most humbly and respectfully

submits that a notice to withdraw such

articles was issued by the Complainant

through it counsel on 09/12/2008,

requesting Accused No. 1 & 2 to withdraw

the above said articles and to render

unconditional apology and to pay a

compensation of Rs.20.00 Cr. (Rupees Twenty

Crores only) jointly and severally for the

damage cause to Complainant’s reputation,

within 15 days from the date of the receipt

of the notice. In the said notice the

Complainant also invited Accused No. 1 to

visit the plants of the Complainant and

requested to observe the way in which the

products are manufactured and then come to

a conclusion based on facts and science,

office copy of the notice is filed herewith

for kind perusal of this Hon’ble Court. The

Notice was sent under Registered Post with

Acknowledgment Due (R.P.A.) on 10/12/2008,

the receipt of R.P.A.D. is filed herewith

for kind perusal of this Hon’ble Court.

Complainant most humbly and respectfully

submits that through the said notice, the

accused were reminded that their acts

134

tantamount to the offence punishable under

Section 1208, 500 & 501 of Indian Penal

Code. The R.P.A.D. Notice sent to Accused

No. 1 returned un-served as the Accused

managed to return the same as “left without

address” and the same is filed herewith for

the kind perusal of this Hon’ble Court. As

a precaution, the complainant on 29.12.2008

faxed the said notice to the accused No.

1’s Office at Delhi, receipt of Fax is

filed herewith for kind perusal of this

Hon’ble Court and complainant on 17.12.2008

faxed the said notice to the accused No.

2’s Office at Bangalore, receipt of the fax

is filed herewith for kind perusal of this

Hon’ble Court. Notice sent to the Bangalore

Office of the Accused No. 2 was duly served

and the acknowledgment card is filed

herewith as a proof of the same for the

kind perusal of this Hon’ble Court.”

We have also noticed that in the statement given by

the Officer of the complaint before the Magistrate,

there is reference to the dispatch of the notice.

144.As noted by us, in answering the question whether

there has been publication for the purpose of criminal

libel also on the basis that despite the defamatory

matter being notified, it is not removed, the analogy

of the wall of a club or notice board of a club may not

be as such available when it comes to medium like the

135

internet. We have noticed that in Byrne (supra), the

test would also be whether the party having the power

to remove the allegedly defamatory matter and also the

right to remove it and being able to do it without any

difficulty defies and rejects the request. The example

of the notice board or a wall of a club, as was the

case in Byrne (supra), is not strictly available when

we are asked to apply it as such in the case of medium

like internet.

145.As was noted in Bunt (supra), in Godfrey (supra),

the receipt of the letter requesting for obliterating

the post was not in dispute and more importantly that

it could have obliterated the post, was again not in

controversy. For deciding whether there is publication,

we see merit in the exposition of law made by the

English Courts as aforesaid.

146.We have noticed that what is declared a crime in

Section 499 of the IPC is the making or publishing of

matter which defames, as described in the Section. The

making or publication must be also accompanied with the

136

intention or knowledge requisite as mentioned in the

Section to constitute that act a crime.

147.There was a notice, admittedly received from the

complainant by the appellant, dated 09.12.2008, calling

upon the appellant to, inter alia, remove the

controversial post (See paragraph 9 of the Petition

under Section 482 of the Cr.PC). It is the appellant’s

case that since it did not control the services and as

the notice did not concern its activities, the

appellant forwarded the legal notice to its Parent

Company for its response. Appellant further contended

before the High Court that the Parent Company, in turn,

responded to the complainant on 06.01.2009. Since, the

notice issued by the complainant did not denote the

space and services which allegedly host the defamatory

articles, the complainant was asked to provide the

exact details.

148.It is again the appellant’s case that the

complainant, however, proceeded to file the complaint

on 21.01.2009. We will take the appellant’s case as it

137

is projected. Thereafter, we will test it with

reference to the jurisdiction under Section 482 of the

Cr.PC as to whether this is a matter which can be gone

into under Section 482. To elaborate, we hold:

As noticed by us, it can be safely concluded

that the argument of the appellant appears to be

acting on the basis of the notice sent by the

complainant to the appellant, appellant did not

proceed to remove the objectionable material from

the internet. The reason for doing this is that

according to the appellant, appellant is not the

intermediary and the intermediary is the Parent

Company and, accordingly, it forwarded the

complaint of the complainant in the notice dated

09.12.2008 to its Parent Company. It may not be

possible for this Court to find that the High Court

was wrong in not proceeding on the basis that the

appellant is not the intermediary. The defence set

up by the appellant in this case, is not a matter

which can be gone into in proceedings under Section

138

482 of the Cr.PC. As things stand, in other words,

consequent upon the notice sent to the appellant by

the complainant on 09.12.2008, the appellant had

refused to or has not complied with the request on

the part of the complainant. As to whether the

appellant was justified in not complying with the

request, involves answering the question as to

whether the appellant was the intermediary, which

again, in turn, as we have already held, may not be

permissible in proceedings under Section 482 of the

Cr.PC. Therefore, this is not an aspect which can

form the basis for the court interfering in Section

482 of the Cr.PC.

149.As to whether there is justification for the Parent

Company in requiring the complainant to provide the URL

so that the offending post could be identified and

dealt with and dehors it whether it could remove the

post, is again a matter, which in our view, it may not

be possible for the appellant to persuade us to hold,

could be gone into the proceedings under Section 482 of

139

the Cr.PC. This also is on the basis that the Parent

Company is the intermediary. To make matters even more

clear, even proceeding on the basis that the first

accused is the originator, as defined in the Act, of

the allegedly defamatory matter, and the first accused

is not only the author but is also the publisher of

allegedly defamatory matter, and again proceeding on

the basis that it is the appellant, who is the

intermediary and not its Parent Company, the refusal on

the part of the appellant to remove the post, may

amount to publication on the basis of the principle

enunciated in Bryne (supra) and as applied to medium of

internet in Godfrey (supra), as later explained,

however, in Bunt (supra). In other words, there may be

publication within the meaning of Section 499 of the

IPC even in the case of an internet operator, if having

the power and the right and the ability to remove a

matter, upon being called upon to do so, there is a

refusal to do so. This is, no doubt, subject to Shreya

Singhal (supra)where it applies. It is also clear that

140

to constitute the offence under Section 500 of the IPC,

mere publication would not suffice. As we have noted,

we cannot go into that aspect on the basis of the

notice sent on 09.12.2008 by the complainant on account

of the obstacles which we have pointed out earlier. In

other words, the disowning of the liability to remove

the post is inextricably intertwined with the

appellant’s denial of it being the intermediary. Also,

the question as to whether the demand for the URL and

justification for not removing, based on the same being

questions essentially relating to the facts, cannot be

gone into in Section 482 proceedings.

150.The only aspect, which really remains, is the

aspect that even accepting that the appellant is an

intermediary and it had the power otherwise to accede

to the request of the appellant to remove the offending

material, the so-called right or power of the appellant

is really not a power and the right, but is nothing but

a mere illusion as assuming such powers or exercising

such a right would involve conferring of unilateral and

141

impermissible adjudicatory power, contrary to the

regime of fundamental right of free expression so

indispensable to the continued efficacy of the internet

as an open democratic medium. In other words,

proceeding on the basis of the assumption that the

appellant is the intermediary and that it stood alerted

by the complainant by letter dated 09.12.2008, the

appellant has not removed the offensive posts though it

could technically remove it, therefore, it amounted to

publication and this publication attracts Section 499

of the IPC. The argument, however, is even in Section

482 of the Cr.PC, the court must qualify the right and

the power of the appellant even assuming to be the

intermediary to act freely as it would opposed to the

principles which have been evolved in regard to the

internet service provider that it is not open to it to

unilaterally decide as to what matter should be removed

and it can act so as to remove on the basis of the

request only if there is a court order. Any other view

142

would make it a despot strangling the free flow of

ideas which is what the internet is all about.

151.The problem arises in this way however. It is while

considering a challenge to Section 79 of the Act, after

it was substituted with effect from 27.10.2009 and

considering the Rules made in the year 2011 also, and a

challenge to the same also, that in Shreya Singhal

(supra), the provisions were read down to mean that

Section 79(3)(b) of the Act and Rule 3(4) of the Rules,

would require an internet service operator to takedown

third-party information not on mere knowledge of

objection to its continuance but after there has been

an impartial adjudication as it were by a court. To

focus more on the problem, it must be pointed out that

in the facts of this case, the acts constituting the

alleged offence under Section 499 of the IPC, were done

not when Section 79, after its substitution, was in

place. The Rules were enacted in the year 2011. In such

circumstances, what we are asked to do is to import in

the principles into the factual matrix when Section 79

143

was differently worded and in proceedings under Section

482 of the Cr.PC. It is, undoubtedly, true that Article

19(1)(a) and Article 19(2) of the Constitution of India

were very much available in 2008 and 2009 though

Section 79 was in its erstwhile avtar. In other words,

will it not be open to the appellant, assuming it to be

the intermediary, to contend that it cannot be called

upon to remove, defamatory matter comprised in any

third-party information without there being a court

order?

152.It is here that we would remind ourselves that we

are called upon in this case to decide the correctness

and legality of the order of the High Court passed in

the proceedings under Section 482 of the Cr.PC. This

contention, as such, has not been raised. We notice, in

fact, that in the very first ground, however, before

the High Court, it is contended that the appellant has

no role. It has no control over the services provided

on the website. Thereafter, it is contended that even

the employees of the Parent Company do not have the

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ability to remove the content posted on the blog

without an order from a court of competent

jurisdiction. It is the further case before the High

Court that under the law of United States of America

which governed the functioning of the Parent Company,

it is not obliged or required to remove any allegedly

defamatory content without the court order. There was

no contention taken that on the basis that even if

appellant is assumed to be the intermediary, the

continuance of the articles after a request by the

complainant to remove it, would not constitute

publication at the hands of the appellant for the

reason that it will not constitute publication as there

is no court order in India. It was also, no doubt, true

that the decision of this Court in Shreya Singhal

(supra) was rendered nearly five years after the

impugned judgment of the High Court. As already

noticed, what was laid down in Shreya Singhal (supra)

was premised upon the challenge to Section 79(3)(b)

which replaced the erstwhile avtar of Section 79 and

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also a challenge to the Intermediary Rules of 2011,

both of which provisions came to be read down by the

court.

153.What appellant is asking this Court to do is to

decide the point which is not even raised as such

before the High Court. Having noticed the exact ground

taken before the High Court, it relates to the

inability of the Parent Company to remove the post

without the court order. However, we feel that this is

a question which can be, independent of the non-

availability of the protection under Section 79 of the

Act in its erstwhile avtar, pursued by the appellant.

This is a matter which we leave it open to the

appellant to urge before the Court.

154.There is a complaint by the appellant that the

Magistrate did not have territorial jurisdiction over

the appellant and the procedure under Section 203 of

the Cr.PC should have been followed. We noticed that

this contention was not raised before the High Court.

We further noticed that on this ground alone, in the

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facts of this case, after nearly a decade of the matter

pending in this Court, it would be unjust to remand the

matter back to the Magistrate, which we must indeed

note, was one of the submissions of the appellant.

155.The upshot of the above discussion is as follows:

1.We reject the contention of the appellant that the

High Court should have acted on the Google LLC

conditions and found that the appellant is not the

intermediary. We hold that this is a matter for

trial.

2.We hold that Section 79 of the Act, prior to its

substitution, did not protect an intermediary in

regard to the offence under Section 499/500 of the

IPC.

3.We set aside the findings by the High Court regarding

the alleged refusal of the appellant to respond to

the notice to remove. We make it clear, however, that

it is for the Court to decide the matter on the basis

of the materials placed before it, and taking into

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consideration, the observations contained in this

judgment.

156.We leave open the contentions of the parties except

those which we have finally pronounced upon. Subject to

the above, the Magistrate shall proceed with the

complaint. The appeal stands disposed of as aforesaid.

……………………………… .J.

(Ashok Bhushan)

…………………………………J.

(K.M. Joseph)

New Delhi;

December 10, 2019.

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