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SUPREME COURT OF INDIA
ASHOK BHUSHAN, K.M. JOSEPH, JJ.
Google India Private Limited – Appellant
Versus
M/s. Visakha Industries And Another- Respondent
Criminal Appeal No. 1987 of 2014
Decided on : 10-12-2019
(a) Code of Criminal Procedure, 1973 - Section 482 - Contours of jurisdiction of High Court u/s 482 are well settled - Should be exercised very sparingly and with circumspection and that too in the “rarest of rare cases” - Only means that power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, and only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice - 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. (Para 41, 42)
(b) Code of Criminal Procedure, 1973 - Section 482 - Instantly proceeding not mala fide nor maliciously instituted - Not covered by grounds for exercising the power as in (1992) Supp (1) SCC 335. (Para 43)
(c) Information Technology Act, 2000 - Section 79 - Pre amendment and post amendment 2008 -
Pre amendment, the exemption provision u/s 79 did not exist - An intermediary would have been liable for any third-party information or data made available by him - Post amendment, intermediary is not liable under any Act if it satisfied certain requirements as detailed in Section 79. (Para 52)
(d) Information Technology Act, 2000 - Section 79 and 69A - Blocking u/s 69A and takedown u/s 79 - Grounds for blocking information are limited and confined to matters relating to national security, public order and the like - Does not expand to blocking any case of defamation, contempt of court, etc. - A blocking order cannot be passed for criminal defamation - 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 removed or access disabled under Section 79(3) - Aggrieved party may seek an interim order before a competent court. (Para 55, 56)
(e) Information Technology Act, 2000 - Section 79 (pre Amendment) - Conditional exemption from liability - Not a bar to the complaint under Section 500, IPC being launched or prosecuted. (Para 62, 64)
(f) Information Technology Act, 2000 - Section 81 - Any offence under the Act has to be dealt with under it - Instantly complaint about defamation, covered u/s 500 IPC - Section 66A of the Act having been struck down and there being no other provision in the Act to cover offence of defamation - Therefore subject of defamation, even though in electronic form, would be governed by section 500 IPC. (Para 96)
(g) Code of Criminal Procedure, 1973 - Section 482 r/w section 499 IPC - Whether a content amounts to defamation - A matter to be decided by court. (Para 101)
(h) Indian Penal Code, 1860 - Section 499 - Defamation - Making of imputation and publishing it - Distinction. (Para 104, 107)
(i) Information Technology Act, 2000 - Section 79 - Complaint filed before substitution of section 79 by amendment - Original section 79 would govern the case - Question of exemption from liability to appellant may fall to be decided under pre substituted section 79. (Para 135)
(j) Code of Criminal Procedure, 1973 - Section 482 r/w section 79, Information Technology Act, 2000 - Appellant claiming to be an independent body being subsidiary of Google LLC - Question as to whether it can be exempted from liability - Cannot be gone into u/s 482. (Para 136)
(k) Information Technology Act, 2000 - Section 79 (substituted) - Complainant seeking removal of objectionable post - No court order to the effect - High Court denying appellant benefit of exemption on basis of complainant’s notice - not sustainable. (Para 137, 138)
(l) Code of Criminal Procedure, 1973 - Section 482 - Complainant alleging connivance and conspiracy between the accused persons - Could not have been gone into u/s 482. (Para 139)
(m) Indian Penal Code, 1860 - Section 499 - Defamatory material - Publication of - Not removing the defamatory matter - Whether publication - A question of fact. (Para 141)
(n) Code of Criminal Procedure, 1973 - Section 482 - Complaint of defamation post - Post not taken down - Appellant stating it is not the intermediary - Question cannot be gone into u/s 482 - court cannot interfere u/s 482 on this aspect. (Para 148)
Facts of the case:
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 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 appellant came to be summoned to answer to Charge of U/s.500, 501 of I.P.C. r/w 34.
Petition challenging the summoning order has been dismissed by the High Court.
Finding of the Court:
Question whether appellant is not an intermediary is a matter for trial.
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.
Result: Appeal disposed of.
JUDGMENT :
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 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 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 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 “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
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