An intermediary, such as the petitioner, is entitled to claim protection under Section 79 of the I.T. Act when compliance with the 'due diligence' requirement under Rule 3 of the I.T. Guidelines is evident. The higher standard of proof required for fixing criminal liability and the exclusion of liability under Section 79 of the I.T. Act from criminal prosecution when due diligence is evident.

JUDGMENT

1. This petition has been filed under Articles 226/227 of the Constitution of India, 1950 read with Section 482 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') praying for quashing of FIR No.103/2020 dated 17th August, 2020, registered at the Economic Offences Wing, New Delhi, under Section 63 of the Copyright Act, 1957 and Sections 103/104 of the Trade Marks Act, 1999 (for short, 'T.M.

Act'), and all proceedings emanating therefrom.

2. The petitioner, Flipkart, is an online e-commerce entity, which, as stated in the petition, provides its portal for sale of products to other sellers and thus is an 'intermediary' as defined under Section 2(1)(w) of the Information Technology Act, 2000 (for short, 'I.T. Act').

3. The respondent No.1 is the State of NCT of Delhi and the respondent No.2/Ashish Girdhar, is the Managing Director of "Sanash Impex Pvt. Ltd.?. The respondent No.2 had complained to the police that unauthorized persons were selling products by the name DC DERMACOL, including on the portal of the petitioner. It was stated that DC DERMACOL was the product of an international brand (Czech Brand) and DC DERMACOL had gained high repute as a brand all over the world in respect of skin makeup. DC DERMACOL had authorized the Sanash Impex Pvt. Ltd. and had granted it absolute and exclusive right to sell DC DERMACOL cosmetic products in India, both online and off-line. However, fake products were being sold through Flipkart and Amazon India. It was alleged in the complaint that this was in connivance with the fake/unauthorized re-sellers. Thus, the respondent No.2/Mr.Ashish Girdhar, on behalf of its company, accused the petitioner of cheating and illegal selling of products of DC DERMACOL cosmetics. On the basis of this complaint, FIR No.103/2020 was registered for the commission of offences under Sections 103/104 of the T.M. Act and Section 63 of the Copyright Act.

4. In the Status Report filed by the respondent No.1/State before this court, it has been recorded that pre-investigation Notice under Section 91 Cr.P.C. was sent to the petitioner as well as to the other accused Amazon for providing requisite documents/information, but instead of responding, the present petition has been filed. This petition came up for hearing on 1st September, 2020 and on subsequent dates. On 14th September, 2020, as the State informed the court that opinion was being sought from the Additional Solicitor General, apropos the applicability of the judgment of the Supreme Court in Shreya Singhal v. Union of India, 2015 (5) SCC 1, and on the statement made by the Additional DCP, present before the court, it was recorded that until the next date of hearing, the EOW will not take any further steps in the investigation of the FIR. It may be noted that this position continues till date.

5. Mr. Siddharth Luthra, learned senior counsel appearing on behalf of the petitioner, submitted that the petitioner was an ?intermediary? as defined under the I.T. Act and was thus protected under Section 79 of the I.T. Act, which provided a ?safe harbour? to ?intermediaries? from liabilities for posting of material by third parties on their platforms. It was further submitted that until and unless, a court order was served upon the petitioner, there was no obligation on the petitioner, as an intermediary, to remove any material from its portal. It was submitted that in the present case, the respondent No.2 has not initiated any civil proceedings and no court order had been served upon the petitioner. As such, the FIR against the petitioner was mis-placed and mala fide.

6. It was also the submission of the learned senior counsel for the petitioner that the obligation of the intermediary, such as the petitioner, under the Information Technology (Intermediary Guidelines) Rules, 2011 (for short, 'I.T. Guidelines') as also under the latest Guidelines, was only to post a Policy indicating that certain kinds of material were impermissible to be posted on its pla