JUDGMENT

Rajiv Sharma, ACJ (Oral)

This Court has taken cognizance of the three news items, which appeared in the daily edition of Amar Ujala (vernacular Hindi), Hindustan Times and Times of India.

2. A startling revelation has been made that a minor student was raped in the School premises by four students. The Management, instead of taking prompt action against the culprits, has tried to hush up the matter. It is with great difficulty that an FIR was registered against the four students and the School Management under Sections 376 and 201 of I.P.C. and Sections 5/6/19/21 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO"). The matter is under investigation. Since all the four students were minor, they were produced before the appropriate forum.

3. We can take judicial notice of the fact that sexual assault against the minors is increasing. The children are not safe even in educational institutions. The young children are being sexually abused, exploited and assaulted. We have also taken cognizance of an incident, in WPPIL No.156 of 2018, which happened in a School Van at Haldwani.

4. We are also told at the bar that as per the news items, these boys had seen porn movies and, thereafter, called the minor girl to the store-room, where she was sexually assaulted. Unlimited access to these pornographic sites is required to be blocked/curbed to avoid adverse influence on the impressionable mind of the children.

5. We had appointed Mr. Arvind Vashisth, learned Senior Counsel as Amicus Curiae to assist the Court. He has drawn the attention of this Court to the Information Technology Act, 2000 (hereinafter referred to as “the Act").

6. Section 2(o) of the Act defines ‘Data'.

7. Section 2(w) of the Act defines ‘intermediary'.

8. Section 25 of the Act provides for ‘suspension of licence by the Controller'.

9. Section 67 of the Act provides for punishment for publishing or transmitting obscene material in electronic form.

10. Section 67-A of the Act, which came into force with effect from 27th October, 2009, provides for punishment for publishing or transmitting of material containing sexually explicit act, etc, in electronic form.

11. Section 67-B of the Act provides for punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.

12. Section 79 of the Act reads as under:

“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-section (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or 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 hosted; 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. (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; (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 or connected to a computer resource controlled by the interme-diary 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."

13. The validity of Sect