The petitioner/A-2 is accused of offences punishable under Sections 120-B, 500, 501/34

I.P.C in C.C. No.679 of 2009 on the file of XI Additional Chief Metropolitan Magistrate,

Secunderabad along with another. The petitioner/A-2 is Google India Private Limited 1st

represented by its Managing Director (Sales and Operations). The respondent/complainant is Visaka Industries Limited, Secunderabad represented by its authorised signatory who is its Deputy Manager-Legal. The complainant is engaged in business of manufacturing and selling of Asbestos cement sheets and allied products. It is alleged that A-1 viz., Gopala Krishna is a Co-ordinator “Ban Asbestos India” a group which is hosted by A-2 and publishes regular articles in the said group and that on 21.11.2008 an article was published in the said group and it was captioned as “poisoning the system; Hindustan Times” aiming at a single manufacturer of Asbestos cement products viz., the complainant and names of renowned politicians of the country G.Venkata Swamy and Sonia Gandhi who have nothing to do with the ownership or management of the complainant-company were named in that article. It is further alleged that on 31.07.2008 another article captioned as “Visaka Asbestos Industries making gains” and that both the above articles contained defamatory statements against the complainant and they are available in Cyber space in the form of articles for world wide audience. In the complaint, details of defamatory remarks made in several other articles published by A-1 in A-2 group are given in detail, which details may not be necessary for the purpose of disposal of this criminal petition.

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.

3. Section 79 which occurs in Chapter XII of the Act originally as it stood enacted in the year 2000 reads as follows:

“CHAPTER XII

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, rules 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 purposes 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.”

The said provision exempts network service providers from liability under the Act, rules or regulations made thereunder for any third party information or data made available by him. It did not exempt a network service provider from liability muchless criminal liability for the offences under other laws or more particularly under the Indian Penal Code. Further, the above provision exempts network service provider from liability, only on proof 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. Proof in that regard can be let in by way of leading evidence by the accused. Therefore, the said question is a question of fact which this Court may not go into in this petition filed under Section 482 Cr.P.C.

4. Chapter XII of the Act including Section 79 was amended by the