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

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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

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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

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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  31st 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  21st 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

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“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., 3rd Floor, Prestige Sigma, No.3, Vittal Mallya Road, Bangalore 560001.

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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

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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

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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

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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.

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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

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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

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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.

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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 Kapoor1 and HMT Watches

Limited v. M.A. Abida and another2. 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

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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 India4, 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

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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

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

Magistrate.  The  decision  in  Abhijit  Pawar v.  Hemant

Madhukar Nimbalkar and another5, 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

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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 others6.

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 others7.  

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

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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

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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.  

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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 India8, 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

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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 others9, 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

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the  decision  in  Gambhirsinh  R.  Dekare v.  Falgunbhai

Chimabhai Patel and another10:

“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 Delhi11 in Criminal Appeal No. 1222 of 2016.

11  (2017) 2 SCC 18

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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

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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 Gonzalez13, 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.  Facebook14. 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 others15 and  State of U.P. and others v.

Renusagar Power Company and others16.

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 others17. 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

another18 wherein the law laid down by a Bench of three

Judges in  Som Mittal v. Govt. of Karnataka19 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 1st 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

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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 follows, 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

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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 Kapoor21 and  HMT Watches Ltd. v.  M.A. Abida

and another22. 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

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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

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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

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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

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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  others23.  There  is  also

23  (2014) 10 SCC 473

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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,

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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

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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

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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

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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

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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

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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 reputation, 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  9th 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  officer,  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 interested, or for the public good.  COMMENTS  Imputation  without publication  In  section  499  the  words “makes or publishes any imputation” should be interpreted as words supplementing 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

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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

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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

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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

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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  another26.  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

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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

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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

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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

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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—

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(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

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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 notice 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

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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.

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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.

Deane27 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. Tilley29. There is also

reference by the respondent to the judgment in Godfrey

v. Demon Internet Limited30. Let us now take these cases

27  (1937) 1 KB 818

28  (2013) EWCA CB 68

29  (2006) EWHC 407

30  (2001) QB 201

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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

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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.

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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:

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“…  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:

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“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

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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  13th of

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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

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“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

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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.”

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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)

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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

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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

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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

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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

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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:

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“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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

Pindwal31:

“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  21st

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

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where as these people have nothing to do with the complainant company and again on 31st 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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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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