S. Muralidhar, J.

Introduction

1.1 Over three and a half years ago, an internet website carried a listing which offered for sale a video clip, shot on a mobile phone, of two children of a school in Delhi indulging in an explicitly sexual act. The petitioner, who was the Managing Director (MD) of the company that owned the website at the relevant point in time, asks this Court to annul his criminal prosecution for the offences of making available for sale and causing to be published an obscene product within the meaning of Section 292 Indian Penal Code (IPC) and Section 67 of the Information Technology Act 2000 (IT Act). This petition under Section 482 of the Code of Criminal Procedure 1973 (CrPC) also raises questions concerning the criminal liability of directors for the offences attributable to a company, both under the IPC as well as the IT Act, particularly when such company is not arraigned as an accused.

1.2 Before discussing the background and the sequence of events leading to the filing of this petition, it is necessary to understand the context in which the issues arise for determination. The regulation of pornography on the internet has posed a serious challenge to governments and legislatures primarily on account of the nature of the medium. The easy availability, even to children, of pornographic material in digital form including video clips, its rapid transmission across the world wide web, and the absence of effective filters to screen out objectionable material from being accessed are factors that compound the challenge. It is said that "controlling pornography on the internet is problematic because we may not know from whom or from where the material originates, how many people are receiving the information, or if the material is crossing international boundaries." [See Robyn Forman Pollack, "Creating the Standards of a Global Community: Regulating Pornography on the Internet- an International Concern" 10 Temple International and Comparative Law Journal, (Fall, 1996) 467].

1.3 It is acknowledged that "the main concern of the legislators and parents in relation to the internet is child pornography, rather than other forms of sexually explicit content. This has been the case ever since paedophiles started to use the internet for circulating pornographic materials related to children." [See Yaman Akdeniz, "Cyber Rights, Protection and Markets: Article Governing Pornography and Child Pornography on the Internet: The UK Approach" 32 University of West Los Angeles Law Review 247 (2001)] Akdeniz points out that although in some countries there are arguments against proscription of pornography based on freedom of speech concerns, "there is general consensus that the line should be drawn with child pornography." These factors need to be borne in mind while examining the irreversible harm that can be caused by making available on the internet sexually explicit material that answers the description of child pornography.

Background facts

2.1 Baazee.com India Private Limited (BIPL), a wholly owned subsidiary of Ebay Inc. USA, and the owner of the website http://www.baazee.com, was during the relevant period in the process of being acquired by and consequently renamed as Ebay India Private Limited (EIPL). BIPL had its main office at Mumbai and another office in Delhi. During November to December 2004 the petitioner Avnish Bajaj was the MD of BIPL (which later was renamed as EIPL).

2.2 The website baazee.com provided an online platform or market where a seller and a buyer could interact. To be either a seller or buyer a person had to first register himself with baazee.com by filling out an online form giving details including the name, email id, date of birth (the age had to be 18 and above). The person registering had to choose an appropriate baazee ID and a password which would be used every time the person logged on to the website baazee.com to transact either as a seller or a buyer. While registering, the applic