Vinod Kaushik v.

Madhvika Joshi
W.P.(C) 160/2012 Delhi HC order dt 27.01.2012

HON'BLE MR. JUSTICE VIPIN SANGHI - This petition has been filed under Article
226 of the Constitution of India to assail the order passed by Sh. Rajesh Aggarwal, the
Adjudicating Officer under the Information Technology Act, 2000, Government of
Maharashtra in Complaint No. 2/2010 preferred by the petitioners before the said officer.
The reason for filing this petition before this Court is that the Cyber Appellate Tribunal,
New Delhi, to which an appeal lies against the impugned order, is bereft of the Chairman,
and the Tribunal is not in a position to function. Consequently, the jurisdiction of this Court
has been invoked.
The petitioners preferred the aforesaid complaint against, inter alia, Ms.Madhvika Joshi,
Respondent No.1. Petitioner No. 2 was married to Ms. Madhvika Joshi, whereas petitioner
No. 1 is the father-in-law of Ms. Madhvika Joshi. Ms. Madhvika Joshi accessed the e-mail
accounts of both the petitioners and printed chat sessions and e-mails from these accounts,
which she has used to pursue her case filed against the petitioners under Section 498A IPC.
The learned Adjudicating Officer in a well-reasoned order has held that respondent No. 1 is
technically guilty of breaching Section 43 of the Information Technology Act (IT Act).
However, he observes that respondent No. 1 has utilized the information retrieved by her
from the e-mail accounts of the petitioners only for the purpose of pursuing her case against
the petitioners, and for no other purpose. She has not used the said information for any
other purpose, such as to malign the petitioners or cause any loss to them, and the
information retrieved by her has been given only to the police authorities or the Court. On
this basis, the Adjudicating Officer has held that the petitioners are not entitled to claim any
damages from the respondent No. 1. The Adjudicating Officer has proceeded to impose
token fine of Rs.100/- upon respondent No. 1 under Section 66C of the Act.
Section 43 of the IT Act, inter alia, provides that ?If any person without permission of
the owner or any other person who is incharge of a computer, computer system or computer
network, ?.. ?.. ?.. downloads, copies or extracts any data, computer data base information
from such computer, computer system or computer network including information or data
held or stored in any removable storage medium;? such person shall be liable to pay
damages by way of compensation to the person so affected.
The claim for compensation would not arise merely on account of the breach of Section
43. The claim would have to be established like in Civil Court, by making requisite
averments with regard to the damage suffered, and thereafter by leading evidence in support
thereof, to show that one or the other prohibited activities enumerated in Section 43 of the
IT Act have resulted in the sufferance of damages by the person concerned.
In the present case, the petitioners evidently have not lead any evidence to show as to
what damage they have suffered on account of the retrieval of their e-mails and chat sessions
by respondent No. 1. These e-mails and chat sessions have been used by respondent No. 1 in
her case lodged against the petitioners under Section 498A IPC. Admittedly, this
information has not been made public by respondent No. 1 to malign the petitioners or to
2 Vinod Kaushik v. Madhvika Joshi

hurt their business or reputation. The information has been provided only to the police
authorities or to the Court.
The claim for damages and compensation made by the petitioners is worded in the
following manner in their written final argument before the Adjudicating Officer:
?38. In this case, accused R-1, R-2 and R-3 had put the victims to huge financial losses to
the tune of Rs. 50 lacs; (a) by dragging them into unwanted litigation by registering a false
498A Case (b) by keeping the Complainant?s son in eight days police custody by waving the
copies of these illegally hacked, fabricated and created chat sessions (c) by delaying
overseas business assignment of the complainant to Hong Kong (d) by blocking the client-
site posting of the Complainant?s son Neeraj to USA by way of unauthorized seizure of
passport through Police (e) by blocking various business opportunities of the Complainant
by way of deleting business mails of the complainant regularly and repeatedly for more
than 15 months (f) by damaging reputation in the society.
As such Neeraj and the complainant are entitled for every relief including the
iscretionary benefits under the Law inforce and hence entitled for all the due
relief/compensation legally under the IT Act 2000 as prayed for with cost of the suit as
detailed below:
A. Rs. One Lac three thousand paid towards Court Fee/application money.
B. Rs. 25,000/- towards expenses incurred on lodging and travelling to Pune and
Mumbai for pursuing the case at Cyber Crime Cell Pune, before the Hon?ble Adjucating
Officer at Mantralaya Mumbai and attending hearing dates.
C. Rs. 50,000/- towards litigation charges paid to the Counsel.
D. Rs. 5000/- towards documentation expenses.
39. Since the complaint is legally tenable and the complainant and Neeraj Kaushik are
entitled for the relief as prayed for by imposing heavy exemplary penalty and cost on the
Respondents alongwith rigorous imprisonment, so that any such economically well placed
employees and the companies could not date to repeat such mal practices and offences
which would act as a deterrent for one and for all in future.?
The aforesaid claim has been rejected by the Adjudicating Officer and, in my view,
rightly so. The right of the respondent to pursue legal remedies available to her, including
under Section 498A IPC, cannot be questioned. The invocation of a right available to a
person to ventilate his or her grievances, and to take action against perceived illegalities
and criminalities does not give a cause of action to claim damages to those against whom
action may be initiated because of such complaints/actions, unless it is eventually found that
such complaints/actions was filed maliciously.
The petitioners cannot have any grievance because the respondent No.1 has lead in
evidence of the materials collected by her in support of her case by breaching Section 43 of
the I.T. Act. All the consequences flowing on account of registration of the case under
Section 498A IPC against the petitioners are remote and indirect consequences. In any event,
Vinod Kaushik v. Madhvika Joshi 3

it is too premature to conclude that respondent No.1 is accountable for the so called
damages.
This being the position, I find no merit in this petition so far as the petitioners claim for
damages has been rejected. In case it is held by the concerned Court that the proceedings
under Section 498A have been maliciously instituted, it shall be open to the petitioners, at
that stage, to take appropriate steps to claim damages against the respondent No. 1 for loses
or damages directly arising from such conduct of respondent No.1.
So far as the submission with regard to the levy of token fine of Rs.100/- under Section
66C is concerned, I find no merit in the same either. The submission of the petitioners in this
respect is that the said fine cannot be imposed by the Adjudicating Officer, who functions
like a Civil Court, whereas the fine could be imposed by a Criminal court dealing with the
offences made out under the Act. The fine has been imposed under Section 66C against the
respondent No. 1. In case respondent No. 1 is aggrieved by the said token fine on the ground
that the adjudicating authority did not have jurisdiction to levy the same under Section 66C,
it shall be open to her to take appropriate action.
Dismissed.
*****
 Syed Asifuddin v. The State of Andhra Pradesh
2006 (1) ALD Cri 96, 2005 CriLJ 4314
decided on 29 July, 2005 (AP High Court)

1. These two petitions are filed by different persons under Section 482 of Code of Criminal
Procedure, 1973 (Cr. P. C.) seeking similar relief. Both the matters were admitted on the same
day and since then both the matters are being listed together for being disposed of as such,
this common order covers both the matters. The petitioners in both the matters seek the relief
of quashing F. I. R. No. 20 of 2003 of Criminal Investigation Department (C. I. D.) Police,
Hyderabad, registered under Sections 409, 420 and 120B of Indian Penal Code, 1860 (for
short, IPC), Section 65 of the Information Technology Act, 2000 (for short, IT Act) and
Section 63 of the Copyright Act, 1957 (for short, Copyright Act).
2. The crime was registered against the petitioners on a written complaint given by the Head
of Sales and Marketing Wing of M/s. Reliance Infocomm Ltd., Hyderabad, the second
respondent herein. In the complaint, it is alleged that certain vested elements of the trade of
mobile telephone services began to woo the subscribers of Reliance India Mobile (RIM) into
various other schemes promoted by other similar service providers, which would have the
impact on the image as well as the revenues of the second respondent. Reliance Infocomm
under Dhirubhai Ambani Pioneer Offer launched telephone services named as 'Reliance India
Mobile' with a view to make communication affordable to the masses. The same was later
modified and the scheme titled 'POBF, which is the most affordable in the market today.
Under the said scheme, the subscriber gets a digital handset worth Rs. 10.500/- as well as
service bundle for three years with an initial payment of Rs. 3.350/-and monthly outflow of
meager Rs. 600/-. The subscriber also gets one year warranty and insurance for three years.
The handset given to the subscriber is third generation digital handset with a host of features
which are of first of its kind coupled with attractive tariff options. In view of this, the market
response in twin cities has been phenomenal. This has an impact on the business of other
service providers for the reason that those service providers attempted unethical and illegal
practices for weaning away the subscribers of the second respondent.
3. In the complaint, the modus operandi adopted by other mobile service providers is
described as follows : The subscribers of the second respondent are attracted by making
phone calls impressing upon them that the tariff plans and services provided by others are
better than the services of Reliance Infocomm and also advise them that they have an option
to shift the service provider by paying an amount of Rs. 3,000/~ towards plan charges and
deposits if desired are only Rs. 540/- towards activation fee. Certain unknown persons in
Abids, Begumpet, Koti, Himayatnagar and Malak-pet are making the calls to the subscribers
of second respondent. Once the subscriber agrees that he can keep a world class handset
which is proprietary to Reliance and also enjoy the best tariff plan of the competitor, he is
asked to meet any of the business associates of rival service providers. At the rendezvous, the
customer is asked to wait for an hour and an usher carries the handset to an undisclosed
location in Secunderabad for conversion process, which takes about 45 minutes to an hour
and half. During this time, ESN number of Reliance instrument is hacked by reprogramming
Syed Asifuddin v. The State of Andhra Pradesh 5

and the subscriber is given the handset and instructed to switch off and switch on the handset
later in the day and start enjoying the new services.
4. After receiving above written complaint lodged by the second respondent through its Head
of Sales and Marketing Wing, the senior executive officer of Criminal Investigation
Department, on instructions of the Additional Director General of Police, CID, registered
crime No. 20 of 2003 under various provisions of IPC, IT Act and Copyright Act as
mentioned hereinabove and took up investigation. The crime was registered on 31-5-2003.
Investigation revealed that all the handsets of Reliance India Mobile are being migrated to
TATA Indicom network at the behest of TATA Indicome staff members and that same is
illegal as there is an agreement between the manufacturers of the Reliance handsets and
Reliance India Mobile Limited. In view of the statements given by the witnesses, the
investigating officer came to a conclusion that prima facie case is made out against the staff
members of TATA Indicom and directed two inspectors to conduct raids at the Head Office
of TATA Indicom situated in Khan Lathif Khan Estate, Hyderabad. This was ordered in view
of specific information received about tampering of Reliance handsets by the staff members
of TATA Indicom. Further on specific information about similar such practices going on at
TATA Indicom centre opposite to Harihara Kala Bhavan, Secunderabad, the investigating
officer along with two other inspectors and panch witnesses proceeded to LM counter at the
above place when one Raj Naren, Officer of TATA Indicom revealed that the General
Manager (Marketing), Madhavan and Anil Ambati, Manager (Marketing) of TATA Indicom
are accepting the handsets belonging to Reliance Infocomm Limited and re-programming
with their network with different tariff packages. At the time of conducting raid in
Secunderabad Office of TATA Indicom, the investigating officer also came across one Shaik
Mustaffa who stated that he purchased handset from Reliance Infocomm network. Therefore,
the investigating officer arrested Raj Naren and Shaik Mustaffa, and seized two mobile
telephone handsets, one each from the possession of the two arrested persons. On
examination, it was found that the handset recovered from Raj Naren is Samsung N191 co-
branded with Reliance with ESN No. 3F7AB 832. The said set was migrated to TATA
Indicom with No. 56376361 allotted by TATA Indicom. Its original Reliance India Mobile
number was 31086523. The two accused along with mobile sets were brought to the office of
C. I. D., and kept under surveillance of C. I. D., staff. The team of inspectors sent to the
Office of TATA Indicom at Khan Lathif Khan Estate also arrested Syed Asifuddin, Patlay
Navin Kumar and Khaja/Gareed Nawaj (petitioners in Criminal Petition No. 2601 of 2003)
and Manoj (petitioner No. 2 in Criminal Petition No. 2602 of 2003). Two Samsung N191 co-
branded with Reliance re-programmed handsets with distinct ESN and serial numbers were
also seized along with 63 application forms of persons who migrated from Reliance India
Limited to TATA Indicom along with the affidavits. After getting the details of the search
team, the investigating officer filed remand report before the Court of IX Metropolitan
Magistrate, Hyderabad on 3-6-2003. In the remand report, it is further stated as under :
The investigation made so far revealed that the Reliance Infocomm is offering under
Dhirubhai Ambani Pioneer Scheme a third generation digital handset costing about Rs.
10.500/- for a mere payment of Rs. 3.350/- with a condition to sail with their network for a
period of 3 years with option to exit either by surrendering the handset or paying the cost of
6 Syed Asifuddin v. The State of Andhra Pradesh

the handset to the company. Investigation also reveals that there is an agreement existing
between the Samsung manufacturers and LG manufacturers With Reliance Infocomm
regarding their exclusive models Samsung N191 and LG-2030. These model handsets are to
be exclusively used by Reliance India Mobile Limited only. In contravention to the above
contract the TATA Indicom staff members who are figured as an accused are tampering with
pre-programmed CDM-A digital, handsets belonging to Reliance Infocomm and activating
with their network with all dubious means which is an offence under Section 65, I.T. Act.
Secondly, the customer is not barred from exiting from the Reliance network as such and to
quit from that network he has to fulfil the obligations laid down in the terms and conditions of
the Reliance company. Till the lock in period of 3 years is over, the handset supplied to the
customer by Reliance Infocomm is a joint property of the company and any kind of
transaction on the part of the subscriber without fulfilling the obligations laid down in the
terms and conditions is clear case of Breach of Trust since the customer has not settled the
accounts with the company. Further as the competition between the CDMA service providers
blown out of proportions, the TATA Indicom has hatched a conspiracy to hijack the
customers of Reliance Infocomm by all fraudulent means and as a part of their Infocomm by
all fraudulent means and as a part of their conspiracy trying to woo the customers of Reliance
Infocomm with different tariff packages and trying to trap gullible customers and succeeded
in their attempt to attract their customers and so far as many as 63 customers belonging to
Reliance Infocomm so far migrated to TATA Indicom by illegal means.
5. These two petitions came to be filed on 17-6-2Q03 for quashing crime No. 20 of 2003 by
the means of TATA Indicom. While admitting the petitions, this Court passed orders in
criminal miscellaneous petition No. 3951 of 2003 staying all further proceedings including
investigation of the crime pending disposal of the main petition. The Public Prosecutor filed
criminal miscellaneous petition No. 232 of 2005 for vacating the said order. The matters were
"finally heard at that stage itself and are being, disposed of finally.
6. The petitioners in both the petitions are employees of Tata Tele Services Limited (TTSL)
which provides basic telephone services including Wireless in Local Loop (WLL) services on
non-exclusive basis in the service area including State of Andhra Pradesh under the name of
Tata Indicom. All of them are alleged to have committed offences punishable under Sections
420, 409 and 120B of IPC, Section 65 of IT Act and Section 63 of Copyright Act. Learned
Senior Counsel for the petitioner, Sri C. Padmanabha Reddy, submits that it is always open
for the subscriber to change from one service provider to the other service provider and the
subscriber who wants to change from Tata Indicom always takes his handset, to BSNL or to
Reliance to get service connected and to give up services of TTSL. According to the learned
counsel, the CDMA handsets brought to TTSL by subscribers of other service providers are
capable of accommodating two separate lines and can be activated on principal assignment
mobile (NAM 1 or NAM 2). The mere activation of NAM 1 or NAM 2 by TTSL in relation
to a handset brought to it by the subscriber of other service provider does not amount to any
crime. According to learned counsel, an offence under Section 409 of IPC is not at all made
out even by going through the FIR, as well as remand report. In the absence of dishonest
appropriation or conversion to their own use, alleged criminal breach of trust by the
petitioners does not arise.
Syed Asifuddin v. The State of Andhra Pradesh 7

7. The learned Senior Counsel also submits that there was no allegation against the petitioners
that they deceived the second respondent fraudulently and dishonestly to deliver the property
or to retain the property and therefore the offence of cheating under Section 420 of IPC does
not arise: As Section 120B of IPC is relatable only to the offences under Sections 490 and 420
of IPC, the charge under Section 120B of IPC is misconceived. Insofar as the offence under
Section 65 of IT Act is concerned, the submission of the learned Senior Counsel is as follows
: A telephone handset is not a computer nor a computer system containing a computer
programme. Alternatively, in the absence of any law which is in force requiring the
maintenance of "computer source code", the allegation that the petitioners concealed,
destroyed or altered any computer source code, is devoid of any substance and therefore the
offence of hacking is absent. In the absence of any allegation by the second respondent that
they have a copyright to the source code of the computer programme in the handsets supplied
by second respondent, the infringement of copyright does not arise. He lastly submits that the
allegation that TTSL has a subscriber base of 100 thousand (one lakh) customers in Andhra
Pradesh and therefore there was no necessity for TTSL to woo the customers/subscribers of
second respondent.
8. The learned Additional Public Prosecutor, Sri H. Prahlad Reddy and the learned counsel for
the second respondent, Sri D. Seshadri Naidu, submit that when a cognizable offence under
various provisions of different statutes is registered and investigation is pending, this Court
cannot quash the F. I. R., at the stage of investigation. After conducting appropriate
preliminary investigation and examining witnesses the police have come to the conclusion
that the petitioners have committed offences involving highly technical aspects, and therefore
unless and until proper evidence is let in before the criminal Court, on mere assertions of the
accused a crime cannot be quashed. They would contend that the cell phone handsets with
CDMA technology supplied by the second respondent to its subscribers are dedicated to
Reliance Indicomm Limited and by interfering with the computer programme and converting
the handsets to be responsive to the technology adopted by TTSL is itself an offence and
therefore these petitions are not maintainable.
9. The submission of the learned Senior Counsel that even if the allegations in F. I. R., are
taken to be true, an offence under Sections 409, 420 and 120B of IPC, is not made put has
force. Admittedly, a subscriber of second respondent is given a mobile phone instrument and
connection with an understanding that the subscriber has exclusive right to use the phone. If
the accused allegedly induced the subscriber of the second respondent to opt for the services
provided by TTSL, an offence under Section 409 of IPC., cannot be said to have made out.
Section 405 of IPC, defines 'criminal breach of trust The offence of criminal breach of trust
requires entrustment with property and dishonest use or disposal of the property by the person
to whom the property is entrusted. Both these things are absent. There is no allegation that the
property in respect of which the second respondent has right was entrusted to TTSL or its
employees who are the petitioners herein. Similarly, an offence of cheating as defined under
Section 415 of IPC., is not at all made out because a subscriber of second respondent was
never induced to deliver the property to TTSL nor there was dishonest or fraudulent
inducement by the petitioners of the second respondent or its subscribers to deliver the
property. Indeed the delivery of the property as such is not present in the case. In so far as
8 Syed Asifuddin v. The State of Andhra Pradesh

offence of Section 120B of IPC, is concerned, the same is made in relation to alleged offence
under Sections 409, 420 and 120B of IPC., and therefore the petitioners cannot be prosecuted
for offences under Sections 409, 420 and 120B of IPC. Insofar as these alleged offences are
concerned, if any criminal trial is conducted, the same Would result in miscarriage of justice
for as held by the Supreme Court in State of West Bengal v. Swapan Kumar, and State of
Haryana v. Bhajan Lal, , when the F.I.R., does not disclose commission of cognizable
offence, the police have no power to investigate such offence. In such a case, this Court
would be justified in quashing investigation on the basis of information laid with the police.
10. The petitioners are also alleged to have committed offences under Section 63 of Copyright
Act and Section 65 of IT Act. In the considered opinion of this Court, it would be necessary
first to deal with the allegations separately and then deal with the case of the prosecution on
the basis of prima facie conclusions. Before doing so, it is necessary to briefly mention about
computer and computer source code.
11. The I.T. Act defines computer in clause (i) of Section 2(1) of the Act. According to the
definition, 'computer' means any electronic, magnetic, optical or other high speed data
processing device or system which performs logical, arithmetic and memory functions by
manipulations of electronic, magnetic or optical impulses, and includes all input, output,
processing, storage, computer software or communication facilities which are connected or
related to the computer in a computer system or computer network. 'Computer system' is
defined in clause (1) of Section 2(1) of I.T. Act, as to mean a device or collection of devices,
including input and Output support devices which are programmable, capable of being used
in conjunction with external files which contain computer programmes, electronic
instructions, data storage and retrieval and communication control. The I.T. Act also defines
'computer network' in clause (j) of Section 2(1) of the Act, which reads as under :
(j) computer network' means the interconnection of one or more computer through-
(i) the use of satellite, microwave, terrestrial line or other communication media; and
(ii) terminals or a complex consisting of two or more interconnected computers whether or
not the interconnection is continuously maintained;
12. A reading of clauses (i), (j) and (1) of Section 2(1) of the I.T. Act would show that any
electronic, magnetic or optical device used for storage of information received through
satellite, microwave or other communication media and the devices which are programmable
and capable of retrieving any information by manipulations of electronic, magnetic or optical
impulses is a computer which can be used as computer system in a computer network.
13. A computer has to be appropriately instructed so as to make it work as per its
specifications. The instructions issued .to the computer consists of a series of Os and is in
different permutations and combinations. This machine language can be in different form in
different manner, which is called computer language. The communicator as well as the
computer understand "a language" and mutually respond with each other. When specified or
particular instructions are given, having regard to the capacity of the computer it performs
certain specified functions. The instructions or programme given to computer in a language
known to the computer are not seen by the users of the computer/consumers of computer
Syed Asifuddin v. The State of Andhra Pradesh 9

functions. Known as source code in computer parlance, the programme written in whatever
computer language by the person who assembled the programme are not seen by the users. A
source code is thus a programme as written by the programmer. Every computer functions as
a separate programme and thus a separate source code.
14. Computer source code or source code, or just source or code may be defined as a series of
statements written in some human readable computer programming language constituting
several text files but the source code may be printed in a book or recorded on a tape without a
file system, and this source code is a piece of computer software. The same is used to produce
object code. But a programme to be run by interpreter is not carried out on object code but on
source code and then converted again. [Diane Rowland and Elizabeth Macdonald :
Information Technology Law; Canandish Publishing Limited; (1997). p. 17] Thus, source
code is always closely guarded by the computer companies, which develop different function
specific computer programmes capable of handling various types of functions depending on
the need. The law as we presently see is developing in the direction of recognizing a
copyright in the source code developed by a programmer. If source code is copied, it would
certainly violate copyright of developer. With this brief background in relation to computer
source code, we may now consider in brief the technological aspects of a cell phone and how
it works. This is necessary to understand the controversy involved in this case.
15. Alexander Graham Bell invented telephone in 1876. This enabled two persons at two
different destinations to communicate with each other through a network of wires and
transmitters. In this, the sound signals are converted into electrical impulses and again re-
converted into sound signals after reaching the destination. The radio communication was
invented by Nikolai Tesla in 1880, which was formerly presented by Guglielmo Marconi in
1894. A combination of telephone technology and radio technology resulted in radio
telephone, which became very popular as technology advanced. Two persons can
communicate with each other through radio telephone without there being any intervention of
network of wires and other infrastructure. The radio signals travel through atmosphere
medium and remain uninterrupted as long as the frequency at which radio signals travel is not
disturbed. The science realized that the radio telephone communication required heavy
equipment by way of powerful transmitter and that it can facilitate only 25 people to use the
system. The problem was solved by communication technology by dividing a large area like a
city into small cells and any two persons connected to a cell system - at a time receive 800
frequencies and crores of people can simultaneously communicate with each other at the same
time. That is the reason why the term 'cell mobile phone or cell phone'.
16. In the cell technology, a person using a phone in one cell of the division will be plugged
to the central transmitter, which will receive the signals and then divert the signals to the other
phone to which the same are intended. When the person moves from one cell to other cell in
the same city, the system i.e., Mobile Telephone Switching Office (MTSO) automatically
transfers signals from tower to tower when the telephone user moves from one division to
another. [How Cell Phones Work? See website - ttp: //electronics, howstuffworks. com. Much
of the information on technological aspects of Cell Phones is taken from this. cell phone, it
looks the database and diverts the call to that cell phone by picking up frequency pair that is
used by the receiver cell phone.] Another advantage in a cell phone compared with radio
10 Syed Asifuddin v. The State of Andhra Pradesh

phone is that when the radio phone is used, one person can talk at a time as both the persons
can communicate simultaneously and also receive sound signals simultaneously.
17. All cell phone service providers like Tata Indicom and Reliance India Mobile have special
codes dedicated to them and these are intended to identify the phone, the phone's owner and
the service provider. To understand how the cell phone works, we need to know certain terms
in cell phone parlance. System Identification Code (SID) is a unique 5-digit number that is
assigned to each carrier by the licensor. Electronic Serial Number (ESN) is a unique 32-bit
number programmed into the phone when it is manufactured by the instrument manufacturer.
Mobile Identification Number (MIN) is a 10-digit number derived from cell phone number
given to a subscriber. When the cell phone is switched on, it listens for a SID on the control
channel, which is a special frequency used by the phone and base station to talk to one
another about things like call set-up and channel changing. If the phone cannot find any
control channels to listen to, the cell phone displays "no service" message as it is out of range.
When cell phone receives SID, it compares it to the SID programmed into the phone and if
these code numbers match, cell knows that it is communicating with its home system. Along
with the SID, the phone also transmits registration request and MTSO which keeps track of
the phone's location in a database, knows which cell phone you are using and gives a ring.
When MTSO gets a call intended to one
18. The essential functions in the use of cell phone, which are performed by the MTSO, is the
central antenna/central transmitter and other transmitters in other areas well coordinated with
the cell phone functions in a fraction of a second. All this is made possible only by a
computer, which simultaneously receives, analyses and distributes data by way of sending
and receiving radio/electrical signals.
19. So as to match with the system of the cell phone provider, every cell phone contains a
circuit board, which is the brain of the phone. It is a combination of several computer chips
programmed to convert analog to digital [Analog - Anything analogous to something else.
Analog computer - A computing machine so designed and constructed as to provide
information in terms of physical quantities analogous to those in which the problems are
formulated.
Digital - 1. Of, pertaining to, or like the fingers or digits 2. Digitate. 3. Showing information,
such as numerals, by means of electronics : digital watches.
Digital computer - An electronic computing machine which receives problems and processes
the answers in numerical form, especially one using the binary system.
(See "The New International Webster's Comprehensive Dictionary of the English Language",
Encyclopedic Edition, 2003 edn., pp. 52 and 358).] and digital to analog conversion and
translation of the outgoing audio signals and incoming signals. This is a micro processor
similar to the one generally used in the compact disk of a DeskTop computer. Without the
circuit board, cell phone instrument cannot function. Therefore, it is not possible to accept the
submission that a cell phone is not a computer. Even by the very definition of the computer
and computer network as defined in IT Act, a cell phone is a computer which is programmed
Syed Asifuddin v. The State of Andhra Pradesh 11

to do among others the function of receiving digital audio signals, convert it into analog audio
signal and also send analog audio signals in a digital form externally by wireless technology.
20. The main allegation against the petitioners is that the MIN of Reliance phone is
irreversibly integrated with ESN and the petitioners hacked ESN so as to wean away RIM
customers to TATA Indicom service. The question is whether the manipulation of this
electronic 32-bit number (ESN) programmed into Samsung N191 and LG-2030 cell phone
instrument exclusively franchised to second respondent amounts to altering source code used
by these computer handsets i.e., cell phone instruments. In the background facts, a question
would also arise whether such alteration amounts to hacking with computer system? If the
query answered in the affirmative, it is always open to the police to alter the F. I. R., or it is
always open to the criminal Court to frame a charge specifically with regard to hacking with
computer system, which is an offence under Section 66 of the IT Act. At this stage, we may
read Sections 65 and 66 of the IT Act.
65. Tampering with computer source documents :- Whoever knowingly or intentionally
conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy,
or alter any computer source code used for a computer, computer programme, computer
system or computer network, when the computer source code is required to be kept or
maintained by law for the time being in force, shall be punishable with imprisonment up to
three years, or with fine which may extend up to two lakh rupees, or with both.
Explanation.- For the purposes of this, "computer source code" means the listing of
programmes, computer commands, design and layout and programme analysis of computer
resource in any form.
66. Hacking with Computer System :- (1) Whoever with the intent to cause or knowing that
he is likely to cause wrongful loss or damage to the public or any person destroys or deletes
or alters any information residing in a computer resource or diminishes its value or utility or
affects it injuriously by any means, commits hacking.
(2) Whoever commits hacking shall be punished with imprisonment up to three years, or with
fine which may extend up to two lakh rupees, or with both.
21. The offence of tampering with computer source documents under Section 65 of the IT Act
is made out when a person,
(i) intentionally conceals, destroys or alters a computer source code used for a computer,
computer programme, computer system or computer network;
(ii) intentionally or knowingly causes another to conceal, destroy or alter any computer source
code used for a computer, computer programme, computer system or computer network; and
(iii) (a) However, the offence is made out only when computer source code is required to be
kept or
(b) when computer source code is maintained by law for the time being in force.
22. The punishment prescribed by law for the above offence is imprisonment up to three years
or a fine of Rs. 2,00,000/- or both.
12 Syed Asifuddin v. The State of Andhra Pradesh

23. What is a computer source code is also defined in the Explanation to Section 65 of IT Act,
which reads as under :
Explanation : For the purposes of this, "computer source code" means the listing of
programmes, computer commands, design and layout and programme analysis of computer
resource in any form.
24. By the very definition of 'computer source code,' a) list of programmes; b) computer
commands; (c) design and layout and d) programme analysis of computer resource in any
form, is a 'computer source code' for the purpose of Section 65 of I.-T. Act. Going by the
definition, ESN of Samsung N191 model cell phone handset or ESN of LG-2030 model cell
phone handset exclusively used by the second respondent as well as SID of second
respondent come within the definition of computer source code. Every cell phone operator is
required to obtain SID from the licensor i.e., Government of India. Further, ESN is a
permanent part of the phone whereas MIN and SID are programmed into phone when one
purchases a service plan and have the phone activity. When a customer of second respondent
opts for its services, the MIN and SID are programmed into the handset. If some one
manipulates and alters ESN, as per the case of second respondent, Samsung/LG handsets
which are exclusively used by them become usable by other service providers like TATA
Indicom. Therefore, prima facie, when the ESN is altered, the offence under Section 65 of I.T.
Act is attracted because every service provider like second respondent has to maintain its own
SID code and also gives a customer specific number to each instrument used to avail the
services provided. The submission that as there is no law which requires a computer source
code to be maintained, an offence cannot be made out, is devoid of any merit. The disjunctive
word "or" is used by the Legislature between the phrases "when the computer source code is
required to be kept" and the other phrase "maintained by law for the time being in force" and,
therefore, both the situations are different. This Court, however, hastens to add that whether a
cell phone operator is maintaining computer source code, is a matter of evidence. So far as
this question is concerned, going by the allegations in the complaint, it becomes clear that the
second respondent is in fact maintaining the computer source code. If there is allegation
against any person including the petitioners, certainly an offence under Section 65 of I.-T. Act
is made out. Therefore, the crime registered against the petitioners cannot be quashed with
regard to Section 65 of the I.-T. Act.
25. That takes me to the allegation that the petitioners violated Section 63 of Copyright Act,
1957. So as to keep pace with the advancement in science and technology especially in the
field of communication and data processing, Parliament has amended Copyright Act, 1957 in
1995 bringing within its fold computer programme also as literary work to be protected by
Copyright Act.
26. Section 2(ffb), (fie) and 2(o) of Copy-right Act read as under.
2(ffb) "computer" includes any electronic or similar device having information processing
capabilities;
Syed Asifuddin v. The State of Andhra Pradesh 13

2(ffc) "computer programme" means a set of instructions expressed in words, codes, schemes
or in any other form, including a machine readable medium, capable of causing a computer to
perform a particular task or achieve a particular result;
2(o) "literary work" includes computer programmes, tables and compilations including
computer databases;
27. Section 14 defines the copyright as exclusive right subject to provisions of the Copyright
Act, to do or authorise the doing of any of the Acts enumerated in respect of the work or
substantial part thereof. Section 14(b) of the Copyright Act reads as under :
14. Meaning of copyright.- For the purposes of this Act, "copyright" means the exclusive
right subject to the provisions of this Act, to do or authorise the doing of any of the following
acts in respect of a work or any substantial part thereof, namely :-
(a) omitted.
(b) in the case of a computer programme,-
(i) to do any of the acts specified in Clause (a); (ii) to sell or give on commercial rental or
offer for sale or for commercial rental any copy of the computer programme :
Provided that such commercial rental does not apply in respect of computer programmes
where the programme itself is not the essential object of the rental;
(c) and (d) omitted.
28. Therefore, reading Section 2(o), (ffc) and Sections 13 and 14 together, it becomes clear
that a computer programme is by very definition original literary work and, therefore, the law
protects such copyright. Under Section 63 of the Copyright Act, any infringement of the
copyright in a computer programme/source code is punishable. Therefore, prima facie, if a
person alters computer programme of another person or another computer company, the same
would be infringement of the copyright. Again the entire issue in this regard is subject to the
evidence that may be led by the complainant at the time of trial. This Court, however,
examined the submission of the learned senior counsel for the petitioners in the background
of the provisions of the Copyright Act and observations made herein are not intended to
decide the question one way or the other. The trial Court has to deal with these aspects.
29. As noticed hereinabove, unless and until investigation by the Police into a complaint is
shown to be illegal or would result in miscarriage of justice, ordinarily the criminal
investigation cannot be quashed. This principle is well settled and is not necessary to burden
this judgment with the precedents except making a reference to R.P. Kapoor v. State of
Punjab, ; State of Haryana v. Bhajan Lal, 1992 Cri LJ 527 (SC) (supra) and State of Tamil
Nadu v. Thirukkural Permal, .
30. In the result, for the above reasons, Crime No. 20 of 2003 insofar as it is under Sections
409, 420 and 120-B of Indian Penal Code, 1860 is quashed and insofar as the crimes under
Section 65 of the Information Technology Act, 2000 and Section 63 of the Copyright Act,
1957, the criminal petitions are dismissed. The C.I.D. Police, which registered Crime No. 20
of 2003, is directed to complete investigation and file a final report before the Metropolitan
14 Syed Asifuddin v. The State of Andhra Pradesh

Magistrate competent to take cognizance of the case within a period of three months from the
date of receipt of this order.
31. The criminal petitions are accordingly dismissed.

*****
 Sanjay Kumar v. State of Haryana
P & H High Court decided on 10/01/2013
CRM No.1353 of 2013 ;CRR No.66 of 2013 (O&M)

Paramjeet Singh, J. -CRM No.1353 of 2013 For the reasons recorded in the
Criminal Misc. Application, the same is allowed. Delay of 50 days in filing the
criminal revision is condoned.
CRR No. 66 of 2013 Present criminal revision has been preferred by the petitioner
against judgment dated 21.08.2012 passed by the learned Sessions Judge, Faridabad,
whereby an appeal preferred by the petitioner has been dismissed and judgment of
conviction dated 01.09.2011 and order of sentence dated 03.09.2011 passed by
learned Judicial Magistrate First Class, Faridabad, has been upheld, vide which the
petitioner has been convicted for offences punishable under Sections 420, 467, 468,
471 of the Indian Penal Code and Sections 65 and 66 of the Information &
Technology Act, 2000 and sentenced to undergo rigorous imprisonment as follows:-
Under Section Period Fine
420 IPC Two years Rs.1,000/-
467 IPC Three years Rs.2,000/-
468 IPC Two years Rs.1,000/-
471 IPC Two years Rs.1,000/-
65 I.T. Act Two years Rs.1,000/-
66 I.T. Act Two years Rs.1000/-

In default of payment of fine, the petitioner shall further undergo simple

imprisonment for a period of two months. All the sentences were ordered to run
concurrently.
Brief facts of the prosecution case are that the Senior Branch Manager, Vijay Bank,
NIT, Faridabad moved a complaint dated 11.02.2003 before the Police stating that the
petitioner was deputed by M/s Virmati Software and Telecommunication Ltd. to
maintain the Software System supplied by them to the bank. He was also looking
Software System of certain other banks. In connection with rendering such services,
the petitioner was having access to their accounting system which was computerized
and was also in a position to enter into ledgers and various other accounts. While
reconciling the accounts, certain discrepancies were pointed out by the officials of the
bank and in that process, it was revealed that the accused-petitioner, who was having
SB Account No. 21499 in his personal name in their bank, manipulated the entries by
forging and fabricating certain entries from one account to another, from the computer
system by handling the software and got the entries pertaining to the amount of the
the bank and withdrew the amounts from the bank on various dates by issuing
cheques in his own favour and withdrew the amount from the cash counter of the
16 Sanjay Kumar v. State of Haryana

bank as well as through transfer/clearing transactions. As per enquiry, it has been

revealed that the accused by carrying out forgery, fabricating the entries in the
computer system of the bank, illegally and wrongfully, withdrew Rs.17,67,409/- from
the bank and thus, caused wrongful gain to himself and wrongful loss to the bank. The
said Bank came to know regarding the fraud committed by the accused on
07.02.2003. thereafter, the accused was called to the bank and he was confronted with
the details of the fraud but he gave evasive replies as only admitted having embezzled
a sum of Rs. 17 lacs without giving further information or revealing the exact amount
of fruad or the modus operandi of the same and also assured to pay back the amount
to the bank. On receipt of the complaint, a case bearing FIR No. 165 dated
11.02.2003, under Sections 406, 420, 467, 468, 469, 471 of the Indian Penal Code and
Sections 65, 66 and 72 of the Information and Technology Act, 2000 was registered
against the petitioner. After completion of investigation, challan against the accused-
petitioner was presented in the Court. Thereafter, charge was framed against the
accused- petitioner to which he pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, examined PW1 A. Siridhar, PW2 Girish
Kumar Verma, PW3 Maheshwar Rath, PW4 Ramesh Kumar Malik and PW5 Dalip
Singh, DSP.
Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. All the
incriminating circumstances were put to the accused. He denied the same and pleaded
innocence.
The learned trial Court, after appreciation of the evidence, convicted and sentenced
the petitioner as aforesaid vide judgment and order dated 01.09.2011 and 03.09.2011
respectively. Thereafter, the petitioner preferred an appeal, which was dismissed by
the learned Sessions Judge, Faridabad vide judgment dated 21.08.2012. Hence, this
criminal revision.
I have heard learned counsel for the petitioner and perused the record.
Learned counsel for the petitioner contends that the petitioner has been falsely
implicated in this case as the complainant and eye witness were inimical to the
petitioner as they were having a dispute about 15/16 years prior to the occurrence.
Learned counsel further contends that there is no direct evidence to connect the
petitioner with the alleged offence in question, therefore, no prima facie case has been
made out against the petitioner I have considered the contentions of the learned
counsel for the petitioner.
From perusal of the judgments of both the Courts below, it transpires that the
allegations against the petitioner are that the petitioner has manipulated the
computerized Bank account i.e. the interest entries and thereby cheated the
complainant bank by forging electronic record in order to cause wrongful loss to the
bank and wrongful gain to himself to the tune of Rs.17,67,409/-. It has come in the
Sanjay Kumar v. State of Haryana 17

documentary evidence on record that the petitioner has forged the entries in the bank
record and had thereby withdrawn a sum of Rs.17,67,409/-.
The learned Trial Court, after appreciating the evidence on record, observed as
under:-
"9. All the prosecution witnesses have supported the prosecution case. The
complainant PW-1 A. Siridhar and PW-2 Girraj Parshad Sharma have stated that the
accused Sanjay Kumar Bhatia was the employee of M/s Virmati Software and
Telecommunication Ltd. and have been appointed in their branch for the purpose of
maintenance of Software Sytem supplied by them to the bank. This fact stand
corroborated by document Ex.P36 wherein in Team No. 7 the name of Sanjay has
been mentioned along with his residence number and Pager number. Sanjay Kumar
Bhatia has also opened an A/c No. 21499 in their bank as evident from the account
opening form of the accused Sanjay Bhatia placed on record as Ex.P37 along with
specimen signature Card Ex.P38 and the cheque book issued register Ex.P39. Further,
from the bank statement of account no. 21499, Ex.P8, on 1.8.2001, Rs.2,00,000/- was
deposited by clearing and Rs.1/- as interest. However, nothing is mentioned as to what
is the basis of clearing. In this regard, PW-3 Maheshwar Rath stated that during his
inquiry he could not find any supporting document or voucher. The accused has also
not produced any evidence in this regard. Rather, Ex.PW1/D shows that even the
amount of Rs.2,00,000/- has been transferred from interest account on 1.8.2001. This
fact stand corroborated by the report Ex.P34 wherein it is mentioned that the accused
has increased interest portion in his own account through first time creation to the
extent of Rs.2,00,000/- and then applied interest along with other SB accounts and to
mislead the Branch employees, the accused has splitted the transaction into 2 parts,
one entry is shown as "by interest credit" as Rs.1.00 and the other by clearing as
Rs.2,00,000/- and, therefore, the amount of Rs.2,00,000/- is reflected in account
statement as `by clearing'.
10. Similarly, using the same modus operandi, accused forged the interest entries on
1.8.2002 and 2.8.2000 and got deposited Rs.3,00,000/- and Rs.4,20,000/- respectively
in his account.
11. Further, the accused used the fixed deposit account of Sardar Jeet Singh. The
account of Jeet Singh was opened on 8.3.2002 in which Rs.1,05,00,000/- was
deposited on that day as evidence from Ex.P3. The statement of account of Sardar Jeet
Singh Ex.P3 shows that an interest of Rs.8,46,489/- was deposited on 29.4.2002.
However, the said interest calculated was an inflated one, calculated by forging
entries to the effect as it the account of Jeet Singh was opened on a prior date.
Thereafter, on 30.4.2002, accused transferred the amount of Rs.8,46,489/- to the
account of Anil Kumar Sharma having A/c No. 22618 which had already been closed
on 1.9.2001,as evident from Ex.P5, by forging the entries to the effect that it was
changed in bank records form closed to o pen and on 8.5.2002, 13.5.2002 and
18 Sanjay Kumar v. State of Haryana

18.5.2002, accused transferred the amount of Rs.2,50,000/-, Rs. 2,50,000/- and

Rs.3,47,409/- respectively from the account of Sh. Anil Kumar to his account as
evident from Ex.P5 and Ex.P8 to Ex.P12. Further, PW-3 Sh. Maheshwar Rath has
stated as also evident from his report Ex.P34 that the transaction rooted through the
account of Jeet Singh and Anil Kumar has been deleted by accused using SRF files
which were later recovered during Audit.
12. Moreover, Ex.P15 to Ex.P24 show that accused has withdrawn the said amount
through cheques.
13. In this manner, the accused was dishonestly forged the bank records to cause
wrongful loss to the bank and thereby cheated the concerned bank by depositing
Rs.17,67,409/- in his account and thereafter withdrawing the same. Further, the
accused has admitted his guilt vide letter Ex.P44. The signature of accused on the
letter Ex.P44 are similar to the specimen signatures of accused on bank opening
account card Ex.P38 as well as on the bank opening Account form Ex.P37.
Furthermore, form the bare perusal of the confessional statement Ex.P44, it clearly
emanates that the manner in which the word `Sanjay' has been written is similar to the
manner word `Sanjay' has been written by accused below his signatures by accused as
he even returned in his statement under Section 313 Cr.P.C. Moreover, Ex.P47 and
Ex.P48 show that accused has tendered Rs.3,50,000/- to the bank in respect of the
amount fraudulently withdrawn by him which shows the admission of guilt as
evident from Ex.P47 and Ex.P48.
14. On the other hand, the learned counsel for the accused during the course of
arguments has argued that no specific password was allotted to Sanjay. However, no
doubt password is givne to an employee but it has surfaced in the testimonies of the
prosecution witnesses that for the purpose of maintaining the software and in this
manner had assess to all those files to which only the employee of the bank could
have. Moreover, as the amount was deposited in the account of accused and he has
withdrawn it, there is no force in said argument.
15. In this manner, the accused had cheated the bank and forged the electronic record
to cause wrongful loss to bank and wrongful gain to himself. The prosecution has
been able to prove beyond reasonable doubts, the ingredients of Sections 420, 467,
468 and 471 IPC.
16. Furthermore, clearly the accused has tampered with the computer source
document and he has also altered in the information which resided in the computer
resource and by doing so he committed the offences under Sections 65 and 66 of the
Information & Technology Act, 2000. At the same time, it is pertinent to mention that
although accused was having secured assess to electrical record of the bank and he
forged the entries and cheated to cause wrongful gain to himself but there is no such
breach of confidentiality by disclosing the information to any other person and as
Sanjay Kumar v. State of Haryana 19

such he is acquitted of offence under Section 72 of the Information & Technology

Act, 2000."
The learned Trial Court was wholly justified in convicting the accused-petitioner and
the learned Appellate court, as can be clearly seen, had not committed any error in
upholding the conviction of the accused petitioner. Learned counsel for the petitioner
failed to point out any misreading or non-reading of any evidence and could not point
out any infirmity in the judgments of the Courts below. The findings of guilt, reached
against the accused-petitioner does not, thus, suffer from any infirmity, legal or
factual and does not therefore, warrant interference by this Court in exercise of this
Court's revisional jurisdiction.
In view of the above, there is no merit in the contentions raised by the learned counsel
for the petitioner.
Dismissed in limine.
 State of A.P. v.. Prabhakar Sampath
VI Addl.Chief Metropolitan Magistrate, Hyderabad.
CC. 489 of 2010
31st day of March, 2015
Available at:http://www.prashantmali.com/cyber-law-cases

Sri P. BHASKARA RAO, Addl. CMM -

The Inspector of Police, Cyber Crimes Police Station, C.I.D., Hyderabad laid charge
sheet against accused in Cr.No.18/2008 to prosecute the accused for the offence under
Sections 66 of Information
Technology Act, 2000.
1. Case of the prosecution in brief is that, PW.1 Arcot K. Balraj, Chief Manager,
Administrative affairs of M/s. SIS Infotech Private Limited situated in Lakshmi Cyber
Centre, Road No.12, Banjara Hills, Hyderabad lodged Ex.P1 complaint on 23-12-
2008 in Cyber Crimes P.S. CID, Hyderabad stating that the complainant company by
name M/s. SIS Infotech Pvt. Ltd., is one of the largest market research firms head
quartered in USA with substantial operations at Hyderabad having 300 employees in
the office has been carrying in the business of research station and support to its
parent company in the USA viz., M/s. Global Industry Analysts Inc., Made available
by Advocate Prashant Mali,Cyber Law
(GIA). In the process of their day to day operations, the company did research for its
various clients of GIA and in the process, the company created substantial huge data
and content which is hosted on its Adobe Content Server of M/s. Global Industry
Analysts Inc., (GIA) and can be accessed only by registered users who have access
with permissions. The data is in the form analysed documents called as "Research
Reports" which carries high pecuniary value of which complainant company holds
proprietary Copy Right.
2. It is alleged that the content, i.e. Research reports was hacked by somebody
successfully by hacking their server www.strategyR.com and downloaded several e-
Reports through some free public sites. PW.1 furnished possible information of the
hacker having worked out from their server as [email protected] and IP
address is 61.95.152.145 and requested the police to take necessary action. Basing on
the report, LW.11 M. Ganapathi Rao, Dy Superintendent of Police, Cyber Crimes P.S.
Hyderabad registered the complaint as a case in Cr.18/2008 u/Sec.66 of Information
Technology Act, 2000 and took up investigation. He secured PW.1, PW.2 examined
them and recorded their detailed statements and came to know that accused hacked
State of A.P. v.. Prabhakar Sampath 21

the content web server of complainants company through IP address 61.95.152.145

provided by Bharathi Airtel Ltd., on that LW.11 DSP addressed a letter to its Manager
to furnish the end user details of IP address i.e. 61.95.152.145, who on verification
gave the information that the said IP address was allotted to M/s. Frost & Sullivan
Private Limited 101, Santhome High Road, Foreshore Estate, Chennai, Tamilnadu
State and gave the contact details of Mr. M. Kirbakaram email ID
[email protected] Mobile No.978993031 on the information given by Bharthi
Airtel, LW.11 DSP obtained search warrant from the court and conducted search at
the residence of accused situated at house bearing No.35A, Magazine Road, St.
Thomos Mount, Chennai in the presence of mediators PW.7 and LW.9 Jakhir Hussain
and seized one pen drive which contains six files in .pdf format viz.,
1) Anticoagulatns.pdf,
2) Bulk_Paclitaxel.pdf,
3) CNS_Therapeutics.pdf,
4) Human_Vaccines.pdf,
5) Microplate_instrumentation_Supplies.pdf,
6) Therapeutic_Aphersis.pdf which are downloaded by accused from the website
i.e. WWW.StrategyR.com of the complainant company by using the computer
system installed at his office i.e. M/s. Frost & Sullivan Pvt. Ltd., Chennai.
Later, LW.11 DSP arrested the accused on 29-12-2008 at 2.00 PM and
recorded his confessional statement and on his information he seized one
computer system S605 which was allotted to the accused in his company
which contains the said six downloaded documents in the system. Later,
LW.11 DSP examined PW.3 to PW.5, Lw.6 Kirthi Thimmanagoudar who are
working in M/s. Frost & Sullivan Pvt. Ltd., LW.11 DSP forwarded material
objects i.e. Pen drive and CPU to APFSL, Hyderabad for analysis and report.
PW.9 Inspector of Police, Cyber Crimes P.S. CID, Hyderabad collected the
FSL report from PW.8 Computer Forensic Expert, APFSL, Hyderabad who
analysed the material objects and issued opinion stating that pen drive contains
six files viz.,
1. Anticoagulants.pdf,
2. Bulk_Paclitaxel.pdf,
3. CNS_therapeutics.pdf,
4. Human_Vaccines.pdf,
5. Micrplate_Instrumentation_supplies.pdf,
22 State of A.P. v.. Prabhakar Sampath

6. Therapeutic_Aphersis.pdf and hard disk of CPU contains six files and data
pertaining to IP address and after completion of entire investigation, PW.9
Inspector of Police, Cyber Crimes, CID filed Charge sheet against the accused
u/Sec.66 of Information Technology Act, 2000 for hacking content server of
complainants company.
4. The case was taken on file for the offences punishable u/Sec.66 of Information
Technology Act, 2000 against accused.
5. After appearance of the accused, copies of all the documents on which the
prosecution proposed to place reliance were furnished to him under Section 207
Cr.P.C. Accused was examined under Section 239 Cr.P.C. He denied the accusations.
Charges u/Sec.66 of Information and Technology Act were framed, read over and
explained to the accused. He pleaded not guilty and claimed to be tried.
 National Association of Software v. Ajay Sood and ors.
119 (2005) DLT 596, 2005 (30) PTC 437 Del
Pradeep Nandrajog, J. 1. Plaintiff has filed the present suit inter alia praying for a decree of
permanent injunction restraining the defendants or any person acting under their authority
from circulating fraudulent E-mails purportedly originating from the plaintiff of using the
trade mark 'NASSCOM' or any other mark confusingly similar in relation to goods or
services. Prayer for rendition of accounts as well as damages has been made in the plaintiff.
2. Application being IA. 2351/2005 has been filed by the parties under Order 23 Rule 3 CPC.
Application is signed on behalf of defendant No. 1 in person. On behalf of defendant No. 4,
Mr. Shiv Agrawal a Director of defendant No. 4 has appended his signatures. Application is
supported with the affidavits of Mr. Ajay Sood and Mr. Shiv Agrawal. On behalf of plaintiff
application has been signed by Mr. Mohan Khanna. His affidavit has been enclosed Along
with the application. There are 4 defendants to the suit. Defendants 2 and 3 being Ms. Shweta
Ganguli and Mr. Preeti Malotra. As per averments made in the plaint said two defendants
were the authors of the offending E-mails which came to the notice of the plaintiff.
As per the application filed under Order 23 Rule 3 CPC it is stated that defendants 1 and 4,
through the medium of the present suit learnt about the offending acts and identified one Ms.
Tithpoorna Ganguli as the person who was responsible for the offending acts. It is stated that
defendants 2 and 3 were fictitious identities created by said Ms. Tithypoorna Ganguli.
3. As per the compromise application, defendants 1 and 4 have agreed to suffer a decree in
terms of paras 35 'a', 'b' and 'g' of the plaint. Defendants have further agreed that the hard disc
seized from the office of the defendants by the local Commissioner appointed by this Court
could be delivered up to the plaintiff. Needless to state application records that since
defendants 2 and 3 are fictitious identities created by Titypoorna Ganguli said defendants be
deleted from the array of parties.
4. Mr. Ajay Sood and Mr. Shiv Agrawal are present in court. They affirmed the Settlement.
Their statements have been recorded.
5. IA. 2351/2005 brings on record a settlement which in the opinion of the court is a bona-fide
settlement and does not suffer from any illegality. Settlement is taken on record and is
accepted.
6. IA stands disposed of. CS (OS) No. 285/2005
1. Normally where a suit is compromised and terms of compromise are brought on record, a
short cryptic order is required to be passed decreeing the suit in terms of the compromise, but
the fact as have emanated in the present case require this Court to pass a reasoned order.
2. The plaint sets out the following case:--
(i) NASSCOM is India's premiere software association representing 850 members of which
nearly 150 are global companies. NASSCOM is a well known name in India and has a wide
range of activities detailed in paras 13 and 15 of the plaint.
24 National Association of Software v. Ajay Sood and ors.

(ii) Masquerading as NASSCOM, defendants, in order to obtain personal data from various
addresses, which they could then use for head-hunting, went on the website as if they were a
premiere selection and recruitment firm.
3. That from the office of defendants No. 1 and 4, offending e-mails were transmitted is not in
dispute as defendants 1 and 4 have suffered a consent decree. On 2nd March, 2005, I have
granted an ex-parte ad-interim injunction against the defendants restraining them from using
the trade name NASSCOM or any other name deceptively similar thereto. Defendants were
further restrained from holding themselves out as being associates or a part of NASSCOM. I
had also directed execution of a commission to visit the premises of the defendants and take
into custody the hard disc as it was reasonably to be expected that the fraudulent e-mails sent
by the defendants to various parties would be located on the hard-disc. Commission was
executed on 2.3.2005 itself. Two hard discs were recovered on which offending e-mails were
found. One e-mail dated 10.1.2003 written by defendant No. 3 (a fictitious person), another e-
mail dated 11.1.2005 (another fictitious person) were down-loaded from the hard-disc.
4. As per the compromise application filed, it transpired that a lady, Tithypoorna Ganguli, an
employee of defendant No. 4 created fictitious e-mail, Ids in the name of defendants No. 2
and 3 and sent the e-mails in the name of NASSCOM to third parties with a view to extract
personal data. In other words, head hunting was on. May be, head hunting was on behalf of
defendant No. 4 but the truth would never surface in the present case for the reason parties
have entered into a compromise.
5. Internet has spawned novel and interesting methods to defraud individuals and companies,
'Phishing' is a form of internet fraud. In a case of 'Phishing', a person pretending to be a
legitimate association such as a bank or an insurance company in order to extract personal
data from a user such as access codes, passwords etc. which are then used to his own
advantage, misrepresents on the identity of the legitimate party. Typically 'Phishing' scams
involve persons who pretend to represent online banks and siphon cash from e-banking
accounts after conning consumers into handing over confidential banking details.
6. The internet these days is full of scams. E-mail that form the basis of phishing attacks and
pose as a security cheek. These messages trick users into handing over their account details
and passwords. The quoted details are subsequently used for fraudulent transfers. It was only
towards the end of 2003 that phishing e-mails were spotted. Unfortunately, these are
becoming increasingly sophisticated. It appears that the expression 'phishing' comes from the
word fishing whereby a bate is set in the hope that someone will bite. Article titled "Plugging
the Phishing Hole": Legislation v. Technology by Robert Louis B Stevenson dated 17th
March, 2005 talks about the Act in the following terms:
"The Act, if passed will add two crimes to the current federal law; It would criminalize the act
of sending a phishing email regardless of whether any recipients of the email suffered any
actual damages. It would criminalize the act of creating a phishing website regardless of
whether any visitors to the website suffered any actual damages. Senator Leahy described the
effects of the Act in this way; The Act protects the integrity of the Internet in two ways. First,
it criminalize the bait. It makes it illegal to knowingly send out spoofed email that links to
sham websites, with the intention of committing a crime, Second, it criminalize the sham
National Association of Software v. Ajay Sood and ors. 25

websites that are the true scene of the crime. The Act is also notable for what it does not
contain. The bail provides no guidance or allocation of additional resources for its
enforcement. This is in contrast with a recently proposed bill in the House of Representatives
aimed primarily at "spyware," While the House bill adds no law related to phishing, it does
provide for the appropriation of "the sum of $ 10,000,000 to the Attorney General for
prosecuting needed to discourage the use of spyware and... phishing." Because the House bill
adds no new law directed at phishing, this Brief does not further discuss or analyze. It is noted
here only for the purpose of pointing out a possible deficiency in the Act."
7. I find no legislation in India on 'phishing'. An act which amounts to phishing, under the
Indian law would be a mis-representation made in the course of trade leading to confusion as
to the source and origin of the e-mail causing immense harm not only to the consumer but
even the person whose name, identity or password is misused. It would also be an act of
passing off as is affecting or tarnishing the image of the plaintiff, if an action is brought by the
aggrieved party.
8. Whether law should develop on the lines suggested by Robert Louis B Stevenson in his
article noted above is left by this Court for future development in an appropriate case.
9. As far as the present case is concerned, defendants 1 and 4 have acknowledged their
employees' illegal action as being violative of plaintiffs right and have recognized the
plaintiffs in sum of Rs. 16,00,000. They have also consented to suffer a decree as recorded in
the application under Order 23 Rule 3 CPC.
10. Suit would stand decreed in terms of the compromise effected between the parties and as
contained in IA No. 2351/2005. Said application shall form part of the decree to be drawn.
11. Hard-discs seized for the defendant's premises by the Local Commissioner on 2.3.2005
are hereby ordered to be turned over to the plaintiff who would be the owner of the hard-
discs. Defendants 1 and 4, their servants and agents would be injuncted from circulating
fraudulent e-mails purportedly originating from the plaintiff or using the trade name
NASSCOM or any other name/mark and address of the plaintiff amounting to passing off and
tarnishment.
12. No costs.
*****
 Aveek Sarkar v. State Of West Bengal (SC)
CRIMINAL APPEAL NO.902 OF 2004 decided on 3 February, 2014
K. S. RADHAKRISHNAN, J. -
1. A German magazine by name STERN having worldwide circulation published an
article with a picture of Boris Becker, a world renowned Tennis player, posing nude
with his dark-skinned fiance by name Barbara Feltus, a film actress, which was
photographed by none other than her father. The article states that, in an interview,
both Boris Becker and Barbaba Feltus spoke freely about their engagement, their lives
and future plans and the message they wanted to convey to the people at large, for
posing to such a photograph. Article picturises Boris Becker as a strident protester of
the pernicious practice of Apartheid. Further, it was stated that the purpose of the
photograph was also to signify that love champions over hatred.
2. Sports World, a widely circulated magazine published in India reproduced the
article and the photograph as cover story in its Issue 15 dated 05.05.1993 with the
caption Posing nude dropping out of tournaments, battling Racism in Germany.
Boris Becker explains his recent approach to life Boris Becker Unmasked.
3. Anandabazar Patrika, a newspaper having wide circulation in Kolkata, also
published in the second page of the newspaper the above-mentioned photograph as
well as the article on 06.05.1993, as appeared in the Sports World.
4. A lawyer practicing at Alipore Judges Court, Kolkata, claimed to be a regular
reader of Sports World as well as Anandabazar Patrika filed a complaint under
Section 292 of the Indian Penal Code against the Appellants herein, the Editor and the
Publisher and Printer of the newspaper as well as against the Editor of the Sports
World, former Captain of Indian Cricket Team, late Mansoor Ali Khan of Pataudi,
before the Sub-Divisional Magistrate at Alipore. Complaint stated that as an
experienced Advocate and an elderly person, he could vouchsafe that the nude
photograph appeared in the Anandabazar Patrika, as well as in the Sports World,
would corrupt young minds, both children and youth of this country, and is against the
cultural and moral values of our society. The complainant stated that unless such
types of obscene photographs are censured and banned and accused persons are
punished, the dignity and honour of our womanhood would be in jeopardy. The
complainant also deposed before the Court on 10.5.1993, inter alia, as follows :
That the Accused No.1 and the Accused No.2 both the editors of Ananda
Bazar Patrika and Sports World respectively intentionally and deliberately with the
help of the Accused No.3 for the purpose of their business, particularly for sale of
their papers and magazines published, printed and publicly exhibited and circulated
and also sold their papers and magazines namely, Anand Bazar Patrika and Sports
World dated 6.5.1993 wherein the photograph of world class Lawn Tennis player
Aveek Sarkar v. State Of West Bengal (SC) 27

namely, Boris Becker and his girl friend German Film Actress Miss Barbara have
been published in a manner in an inter-twined manner wherein Boris Becker placed
the hand upon the breast of Miss Barbara which have annexed in my petition with a
caption Boris Backer Un- masked which is absolutely obscene and lascivious in
nature and which is a criminal offence. The obscene and about nude photographs
show published by the accused persons in the mind of myself as well as society of
different age group have a very bad impact..
5. The learned Magistrate on 10.5.1993 passed the following order in Criminal Case
Ref. Case No.C.796 of 1993 :
Complainant is present. He is examined and discharged. No other PWs are present. It
appears that a prima facie case is made out against the accused persons under Section
292 IPC. Issue summons against all the accused persons fixing 17.6.1993 for S.P. and
appearance. Requisite at one.
6. Complainant also urged that the accused persons should not only be prosecuted
under Section 292 IPC, but also be prosecuted under Section 4 of the Indecent
Representation of Women (Prohibition) Act, 1986, since the photograph prima facie
gives a sexual titillation and its impact is moral degradation and would also encourage
the people to commit sexual offences. The accused persons on 5.3.1993 filed an
application before the Court for dropping the proceedings stating that there was no
illegality in reproducing in the Sports World as well as in the Anandabazar Patrika of
the news item and photograph appeared in a magazine STERN published in
Germany. Further, it was pointed out that the said magazine was never banned entry
into India and was never considered as obscene, especially when Section 79 of
Indian Penal Code states that nothing is an offence which is done by any person who
is justified by law, or who by reason of a mistake of fact and not reason of a mistake
of law in good faith, believes himself to be justified by law, in doing it.
7. The Court after seeing the photographs and hearing the arguments on either side,
held as follows :-
Moreover, until evidence comes in it will not be proper to give any opinion as to the
responsibility of the accused persons. But I feel it pertinent to mention that though the
Section 292 does not define word obscene, but my rids of precedents have clustered
round on this point and being satisfied with the materials on record, pernicious effect
of picture in depraving and debauching the mind of the persons into whose hands it
may come and also for other sufficient reasons to proceed further this Court was
pleased to issue process against the accused persons under Section 292 I.P.C. At
present having regard to the facts of the case, I find the matter merits interference by
not dropping the proceedings as prayed for. It is too early to say that the accused
persons are entitled to get benefit of Section 79 I.P.C.
28 Aveek Sarkar v. State Of West Bengal (SC)

8. The Magistrate after holding so, held the accused persons to be examined under
Section 251 Cr.P.C. and ordered that they would be put to face the trial for the offence
punishable under Section 292 IPC alternatively under Section 4 of the Indecent
Representation of Women (Prohibition) Act, 1986.
9. The Appellants herein preferred Criminal Revision No.1591 of 1994 before the
High Court of Calcutta under Section 482 Cr.P.C. for quashing the proceedings in
Case No.C.796 of 1993 (corresponding to T.R. No.35 of 1994) pending before the
learned Judicial Magistrate Court, Alipore. Before the High Court, it was pointed out
that the Magistrate had not properly appreciated the fact that there was no ban in
importing the German sports magazine STERN into India. Consequently,
reproduction of any picture would fall within the general exception contained in
Section 79 IPC. Reference was also made to letter dated 20th July, 1993 addressed by
the Assistant Editor, Sports World to the Collector, Calcutta Customs and a copy of
the letter dated 4.10.1993 sent by the Deputy Collector, Calcutta Customs to the
Assistant Editor, Sports World. Referring to the picture, it was pointed out that the
picture only demonstrates the protest lodged by Boris Becker as well as his fiance
against apartheid and those facts were not properly appreciated by the learned
Magistrate. Further, it was also pointed out that the offending picture could not be
termed as obscene inasmuch as nudity per se was not obscene and the picture was
neither suggestive nor provocative in any manner and would have no affect on the
minds of the youth or the public in general. Further, it was also pointed out that the
learned Magistrate should not have issued summons without application of mind. The
High Court, however, did not appreciate all those contentions and declined to quash
the proceedings under Section 483 Cr.P.C., against which this appeal has been
preferred.
10. Shri Pradeep Ghosh, learned senior counsel, appearing for the Appellants,
submitted that the publication in question as well as the photograph taken, as a whole
and in the background of facts and circumstances, cannot be said to be per se
obscene within the meaning of Section 291(1) IPC so as to remand a trial of the
Appellants in respect of the alleged offence under Section 292(1) IPC. The learned
counsel pointed out that obscenity has to be judged in the context of contemporary
social mores, current socio-moral attitude of the community and the prevalent norms
of acceptability/ susceptibility of the community, in relation to matters in issue. In
support of this contention, reliance was placed on the Constitution Bench judgment of
this Court in Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881. Reference
was also made to the judgment of this Court in Chandrakant Kalyandas Kakodar v.
State of Maharashtra 1969 (2) SCC 687. Few other judgments were also referred to in
support of his contention. Learned senior counsel also pointed out that the learned
Magistrate as well as the High Court have completely overlooked the context in
Aveek Sarkar v. State Of West Bengal (SC) 29

which the photograph was published and the message it had given to the public at
large. Learned senior counsel also pointed out that the photograph is in no way vulgar
or lascivious. Learned senior counsel also pointed out that the Courts below have not
properly appreciated the scope of Section 79 IPC and that the Appellants are justified
in law in publishing the photograph and the article which was borrowed from the
German magazine. Learned senior counsel also pointed out that such a publication
was never found to be obscene even by the State authorities and no FIR was ever
lodged against the Appellants and a private complaint of such a nature should not
have been entertained by the learned Magistrate without appreciating the facts as well
as the law on the point. Learned senior counsel pointed out that the High Court ought
to have exercised jurisdiction under Section 482 Cr.P.C.
11. Shri Mohit Paul, learned counsel, appearing for the Respondents, submitted that
the Courts below were justified in holding that it would not be proper to give an
opinion as to the culpability of the accused persons unless they are put to trial and the
evidence is adduced. Learned counsel pointed out that the question whether the
publication of the photograph is justified or not and was made in good faith requires
to be proved by the Appellants since good faith and public good are questions of fact
and matters for evidence. Learned counsel pointed out that the learned Magistrate as
well as the High Court was justified in not quashing the complaint and ordering the
Appellants to face the trial.
TEST OF OBSCENITY AND COMMUNITY STANDARDS
12. Constitution Bench of this Court in the year 1965 in Ranjit D. Udeshi (supra)
indicated that the concept of obscenity would change with the passage of time and
what might have been obscene at one point of time would not be considered as
obscene at a later period. Judgment refers to several examples of changing notion of
obscenity and ultimately the Court observed as follows :-
. The world, is now able to tolerate much more than formerly, having coming
indurate by literature of different sorts. The attitude is not yet settled.. This is what
this Court has said in the year 1965.
13. Again in the year 1969, in Chandrakant Kalyandas Kakodar (supra), this Court
reiterated the principle as follows:-
The standards of contemporary society in India are also fast changing.
14. Above mentioned principle has been reiterated in Samaresh Bose v. Amal Mitra
(1985) 4 SCC 289 by laying emphasis on contemporary social values and general
attitude of ordinary reader. Again in 2010, the principle of contemporary community
standards and social values have been reiterated in S. Khushboo V. Kanniammal
(2010) 5 SCC 600.
30 Aveek Sarkar v. State Of West Bengal (SC)

15. This Court in Ranjit D. Udeshi (supra) highlighted the delicate task to be
discharged by the Courts in judging whether the word, picture, painting, etc. would
pass the test of obscenity under Section 292 of the Code and the Court held as follows
:
The Penal Code does not define the word obscene and this delicate task of how to
distinguish between that which is artistic and that which is obscene has to be
performed by courts, and in the last resort by the Supreme Court. The test must
obviously be of a general character but it must admit of a just application from case to
case by indicating a line of demarcation not necessarily sharp but sufficiently distinct
to distinguish between that which is obscene and that which is not. None has so far
attempted a definition of obscenity because the meaning can be laid bare without
attempting a definition by describing what must be looked for. It may, however, be
said at once that treating with sex and nudity in art and literature cannot be regarded
as evidence of obscenity without something more. The test of obscenity must square
with the freedom of speech and expression guaranteed under our Constitution. This
invites the court to reach a decision on a constitutional issue of a most far reaching
character and it must beware that it may not lean too far away from the guaranteed
freedom.
16. Applying the above test, to the book Lady Chatterleys Lover, this Court in
Ranjit D. Udeshi (supra) held that in treating with sex the impugned portions viewed
separately and also in the setting of the whole book passed the permissible limits
judged of from our community standards and there was no social gain to the public
which could be said to preponderate the book must be held to satisfy the test of
obscenity.
17. The novel Lady Chatterleys Lover which came to be condemned as obscene by
this Court was held to be not obscene in England by Central Criminal Court. In
England, the question of obscenity is left to the Jury. Byrne, J., learned Judge who
presided over the Central Criminal Court in R. v. Penguin Books Ltd. (1961 Crl. Law
Review 176) observed as follows :-
In summing up his lordship instructed the jury that: They must consider the book as
a whole, not selecting passages here and there and, keeping their feet on the ground,
not exercising questions of taste or the functions of a censor. The first question, after
publication was: was the book obscene? Was its effect taken as a whole to tend to
deprave and corrupt persons who were likely, having regard to all the circumstances,
to read it? To deprave meant to make morally bad, to pervert, to debase or corrupt
morally. To corrupt meant to render morally unsound or rotten, to destroy the moral
purity or chastity, to pervert or ruin a good quality, to debase, to defile. No intent to
deprave or corrupt was necessary. The mere fact that the jury might be shocked and
disgusted by the book would not solve the question. Authors had a right to express
Aveek Sarkar v. State Of West Bengal (SC) 31

themselves but people with strong views were still members of the community and
under an obligation to others not to harm them morally, physically or spiritually. The
jury as men and women of the world, not prudish but with liberal minds, should ask
themselves was the tendency of the book to deprave and corrupt those likely to read it,
not only those reading under guidance in the rarefied atmosphere of some educational
institution, but also those who could buy the book for three shillings and six pence or
get it from the public library, possibly without any knowledge of Lawrence and with
little knowledge of literature. If the jury were satisfied beyond reasonable doubt that
the book was obscene, they must then consider the question of its being justified for
public good in the interest of science, literature, art or learning or other subjects of
general concern. Literary merits were not sufficient to save the book, it must be
justified as being for the public good. The book was not to be judged by comparison
with other books. If it was obscene then if the defendant has established the
probability that the merits of the book as a novel were so high that they outbalanced
the obscenity so that the publication was the public good, the jury should acquit.
18. Later, this Court in Samaresh Bose (supra), referring to the Bengali novel
Prajapati written by Samaresh Bose, observed as follows :-
35. .................. We are not satisfied on reading the book that it could be considered
to be obscene. Reference to kissing, description of the body and the figures of the
female characters in the book and suggestions of acts of sex by themselves may not
have the effect of depraving, debasing and encouraging the readers of any age to
lasciviousness and the novel on these counts, may not be considered to be obscene. It
is true that slang and various unconventional words have been used in the book.
Though there is no description of any overt act of sex, there can be no doubt that there
are suggestions of sex acts and that a great deal of emphasis on the aspect of sex in the
lives of persons in various spheres of society and amongst various classes of people,
is to be found in the novel. Because of the language used, the episodes in relation to
sex life narrated in the novel, appear vulgar and may create a feeling of disgust and
revulsion. The mere fact that the various affairs and episodes with emphasis on sex
have been narrated in slang and vulgar language may shock a reader who may feel
disgusted by the book does not resolve the question of obscenity............... We have
already indicated, this was the contemporary standard in the year 1985.
19. We are, in this case, concerned with a situation of the year 1994, but we are in
2014 and while judging as to whether a particular photograph, an article or book is
obscene, regard must be had to the contemporary mores and national standards and
not the standard of a group of susceptible or sensitive persons.
HICKLIN TEST:
32 Aveek Sarkar v. State Of West Bengal (SC)

20. In the United Kingdom, way back in 1868, the Court laid down the Hicklin test in
Regina v. Hicklin (1868 L.R. 2 Q.B.
360), and held as follows :-
The test of obscenity is whether the tendency of the matter charged as obscenity is to
deprave and corrupt those whose minds are open to such immoral influences and into
whose hands a publication of this sort may fall.
21. Hicklin test postulated that a publication has to be judged for obscenity based on
isolated passages of a work considered out of context and judged by their apparent
influence on most susceptible readers, such as children or weak-minded adults. United
States, however, made a marked departure. Of late, it felt that the Hicklin test is not
correct test to apply to judge what is obscenity. In Roth v. United States 354 U.S. 476
(1957), the Supreme Court of United States directly dealt with the issue of obscenity
as an exception to freedom of speech and expression. The Court held that the rejection
of obscenity was implicit in the First Amendment. Noticing that sex and obscenity
were held not to be synonymous with each other, the Court held that only those sex-
related materials which had the tendency of exciting lustful thoughts were found to
be obscene and the same has to be judged from the point of view of an average person
by applying contemporary community standards.
22. In Canada also, the majority held in Brodie v. The Queen (1962 SCR
681) that D.H. Lawrences novel Lady Chatterleys Lover was not obscene within
the meaning of the Canadian Criminal Code
23. The Supreme Court of Canada in Regina v. Butler (1992) 1 SCR 452, held that the
dominant test is the community standards problems test. The Court held that
explicit sex that is not violent and neither degrading nor dehumanizing is generally
tolerated in the Canadian society and will not qualify as the undue exploitation of sex
unless it employs children in its production. The Court held, in order for the work or
material to qualify as obscene, the exploitation of sex must not only be a dominant
characteristic, but such exploitation must be undue. Earlier in Towne Cinema
Theatres Ltd. v. The Queen (1985) 1 SCR 494, the Canadian Court applied the
community standard test and not Hicklin test.
COMMUNITY STANDARD TEST:
24. We are also of the view that Hicklin test is not the correct test to be applied to
determine what is obscenity. Section 292 of the Indian Penal Code, of course, uses
the expression lascivious and prurient interests or its effect. Later, it has also been
indicated in the said Section of the applicability of the effect and the necessity of
taking the items as a whole and on that foundation where such items would tend to
deprave and corrupt persons who are likely, having regard to all the relevant
Aveek Sarkar v. State Of West Bengal (SC) 33

circumstances, to read, see or hear the matter contained or embodied in it. We have,
therefore, to apply the community standard test rather than Hicklin test to
determine what is obscenity. A bare reading of Sub-section (1) of Section 292 ,
makes clear that a picture or article shall be deemed to be obscene (i) if it is
lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and
corrupt persons who are likely to read, see or hear the matter, alleged to be obscene.
Once the matter is found to be obscene, the question may arise as to whether the
impugned matter falls within any of the exceptions contained in Section. A picture of
a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the
tendency to arouse feeling or revealing an overt sexual desire. The picture should be
suggestive of deprave mind and designed to excite sexual passion in persons who are
likely to see it, which will depend on the particular posture and the background in
which the nude/semi-nude woman is depicted. Only those sex-related materials which
have a tendency of exciting lustful thoughts can be held to be obscene, but the
obscenity has to be judged from the point of view of an average person, by applying
contemporary community standards.
MESSAGE AND CONTEXT
25. We have to examine the question of obscenity in the context in which the
photograph appears and the message it wants to convey. In Bobby Art International &
Ors. v. Om Pal Singh Hoon (1996) 4 SCC 1, this Court while dealing with the
question of obscenity in the context of film called Bandit Queen pointed out that the
so-called objectionable scenes in the film have to be considered in the context of the
message that the film was seeking to transmit in respect of social menace of torture
and violence against a helpless female child which transformed her into a dreaded
dacoit. The Court expressed the following view :-
First, the scene where she is humiliated, stripped naked, paraded, made to draw
water from the well, within the circle of a hundred men. The exposure of her breasts
and genitalia to those men is intended by those who strip her to demean her. The
effect of so doing upon her could hardly have been better conveyed than by explicitly
showing the scene. The object of doing so was not to titillate the cinemagoers lust but
to arouse in him sympathy for the victim and disgust for the perpetrators. The
revulsion that the Tribunal referred to was not at Phoolan Devis nudity but at the
sadism and heartlessness of those who had stripped her naked to rob her of every
shred of dignity. Nakedness does not always arouse the baser instinct. The reference
by the Tribunal to the film Schindlers List was apt. There is a scene in it of rows of
naked men and women, shown frontally, being led into the gas chambers of a Nazi
concentration camp. Not only are they about to die but they have been stripped in
their last moments of the basic dignity of human beings. Tears are a likely reaction;
pity, horror and a fellow- feeling of shame are certain, except in the pervert who
34 Aveek Sarkar v. State Of West Bengal (SC)

might be aroused. We do not censor to protect the pervert or to assuage the

susceptibilities of the over-sensitive. Bandit Queen tells a powerful human story
and to that story the scene of Phoolan Devis enforced naked parade is central. It helps
to explain why Phoolan Devi became what she did: her rage and vendetta against the
society that had heaped indignities upon her. [Emphasis Supplied]
26. In Ajay Goswami v. Union of India (2007) 1 SCC 143, while examining the scope
of Section 292 IPC and Sections 3, 4 and 6 of the Indecent Representation of Women
(Prohibition) Act, 1986, this Court held that the commitment to freedom of expression
demands that it cannot be suppressed, unless the situations created by it allowing the
freedom are pressing and the community interest is endangered.
27. We have to examine whether the photograph of Boris Becker with his fiance
Barbara Fultus, a dark-skinned lady standing close to each other bare bodied but
covering the breast of his fiance with his hands can be stated to be objectionable in
the sense it violates Section 292 IPC. Applying the community tolerance test, we are
not prepared to say such a photograph is suggestive of deprave minds and designed to
excite sexual passion in persons who are likely to look at them and see them, which
would depend upon the particular posture and background in which the woman is
depicted or shown. Breast of Barbara Fultus has been fully covered with the arm of
Boris Becker, a photograph, of course, semi-nude, but taken by none other than the
father of Barbara. Further, the photograph, in our view, has no tendency to deprave or
corrupt the minds of people in whose hands the magazine Sports World or
Anandabazar Patrika would fall.
28. We may also indicate that the said picture has to be viewed in the background in
which it was shown, and the message it has to convey to the public and the world at
large. The cover story of the Magazine carries the title, posing nude, dropping of
harassment, battling racism in Germany. Boris Becker himself in the article published
in the German magazine, speaks of the racial discrimination prevalent in Germany
and the article highlights Boris Beckers protests against racism in Germany. Boris
Becker himself puts it, as quoted in the said article:
the nude photos were supposed to shock, no doubt about it....... What I am saying
with these photos is that an inter-racial relationship is okay.
29. The message, the photograph wants to convey is that the colour of skin matters
little and love champions over colour. Picture promotes love affair, leading to a
marriage, between a white-skinned man and a black skinned woman.
30. We should, therefore, appreciate the photograph and the article in the light of the
message it wants to convey, that is to eradicate the evil of racism and apartheid in the
society and to promote love and marriage between white skinned man and a black
skinned woman. When viewed in that angle, we are not prepared to say that the
Aveek Sarkar v. State Of West Bengal (SC) 35

picture or the article which was reproduced by Sports World and the Anandabazar
Patrika be said to be objectionable so as to initiate proceedings under Section 292 IPC
or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
31. We have found that no offence has been committed under Section 292 IPC and
then the question whether it falls in the first part of Section 79 IPC has become
academic. We are sorry to note that the learned Magistrate, without proper application
of mind or appreciation of background in which the photograph has been shown,
proposed to initiate prosecution proceedings against the Appellants. Learned
Magistrate should have exercised his wisdom on the basis of judicial precedents in the
event of which he would not have ordered the Appellants to face the trial. The High
Court, in our view, should have exercised powers under Section 482 Cr.P.C. to secure
the ends of justice.
32. We are, therefore, inclined to allow this appeal and set aside the criminal
proceedings initiated against the Appellants. The Appeal is allowed as above.
*****
 State of Tamil Nadu v. Suhas Katti
( decided on 5-11-2004)
ADDL. CMM EGMORE, , C.C.NO.4680/2004
Source :http://www.prashantmali.com/cyber-law-cases
SHRI ARUL RAJ, ADDL CMM -
Assistant Commissioner of Police, Cyber Crime Cell, C.C.B.Egmore, Chennai.8 has
filed Final Report against the accused, that on 7.2.04, evening at Cyber Caf Hello World
Centre, Sion, Mumbai having an I.P.61.11.10.99, the accused with intention of harming
the reputation of the Complainant Ms. R, created user id in the name of her and composed
an obscene message intending that such document shall be used for posting in different
obscene Yahoo Group, with the intention to make others to believe that the document was
made by her, so that the persons seeing the obscene message would send offending calls
to her,in harming her reputation and by insulting her modesty by the words exhibited in
the email and in the course of same transaction, on 7.2.04, evening at Cyber Caf Hello
World Centre, Sion, Mumbai, having an IP 61.11.10.99 the Accused posted obscene
message which are lascivious and also have the effect to corrupt persons who are likely to
read and see such obscene messages and caused to the published in different obscene
Yahoo goups and in the course of same transaction, that on 9.2.04, morning, at Cyber
Caf Heighten Advertising, Mahim, Mumbai, having an IP 202.88.165.53 the accused
with intention of harming the reputation of the complainant Ms. R entered user id. which
was created by him in the name of the complainant and composed an obscene message
intending that such document shall be used for posting in different obscene Yahoo
groups, with the intention to make others to believe that the document was made by her,
so that the persons seeing the obscene message would send offending calls to her, in
harming her reputation and by insulting her modesty by the words exhibited in the email
and that in the course of same transaction, that on 9.2.04, morning at cyber caf Heighten
Advertising, Mahim, Mumbai, having an IP 202.88.165.53, the accused posted obscene
messages which are lascivious and also have the effect to corrupt person who are likely to
read and see such obscene messages and caused to be published in different obscene
Yahoo goups and thereby the accused have committed offences u/s 469 IPC, 67 I.T Act.
469 &509 IPC, and 67 of I.T. Act.
P.W. 1 is the only daughter of P.W.2 and P.W.3.P.W.2 is the father, P.W.3 is the mother.
Presently, P.W.1 is working as a senior Executive (H.R.) in a multinational Company at
Chennai. She studied her MBA Course in Mumbai in the year 1997, the accused studied
with P.W.1 and she was his classmate is Mumbai. Accused belongs to Mumbai. On
9.2.04, She opened her Rediff e-mail and noticed the receipt of two obscene messages
which were posted on 7.2.04 and 9.2.04. She took computer output of the obscene
message posted on 7.2.04, Ex P.1 is the obscene message. The obscene message carried
her Office phone numbers and her e-mail I.D. The house Phone number was wrongly
State of Tamil Nadu v. Suhas Katti 37

given. The said obscene messages have been sent through Yahoo website to 5 sex groups.
The computer printout obscene message posted in @ Radha lovers group is EX.P.2. On
seeing the said messages, several persons sent the responsive message and many persons
tried to contact her over phone. Ex P3 series is the responsive messages. Several Phone
calls came to her office. P.W.1 informed the said matter to her parents. The messages
were likely to harm the reputation and morale of P.W.1.
P.W. 1 had married Jaichand Prajapathi of Uttar Pradesh in the year 2001. The family
life was not happy and she obtained divorce through court in the year 2003. The Accused
was citied as witness in the divorce petition. P.W.1 recollected one incident and suspected
in the involvement of the Accused. During college days in the year 1997, the accused
used to travel with P.W.1 in train at Mumbai. On one such occasion, Accused pointed out
an obscene scribbling with phone number in the train and told P.W.1 that on seeing the
phone number, many persons would try to contact the phone number and this is the best
way to spoil the reputation of a woman. The Accused even expressed his desire to marry
P.W.1, after the engagement of P.W.1 with Jaichand Prajapati was over. P.W.1 turned
down his proposal. In the year 2003, the Accused stayed in the house of the P.W.1 for
about 10 days stating that he has to attend an interview at Banglalore. At that time also,
Accused offered to marry P.W.1 for which P.W.1 and her parents refused the alliance.
Thereafter, P.W.1 after his return to Mumbai was in the habit of making Phone calls,
sending S.M.S. Messages and sending E-mail to P.W.1 frequently. Hence P.W.1 blocked
the e-mail I.D. of the Accused. Ex.P5 is the Computer output for blocking the e-mail I.D.
of the Accused.
On seeing the obscene message, P.W.1 discussed the matter with P.W.2 and P.W.3 and
sought the help of the Accused over phone. P.W.1 and her parents issued a warning
message in the name of PW 2 and PW 3 by creating an email ID viz,
[email protected] and transmitted same to the yahoo groups. She sent warning
messages to the persons, who sent responsive message in ExP.6 series. A copy of
warning message was also sent to the Accused.
P.W.1 lodged a complaint on 14/2/2004 along with Ex.P1 at Cyber Crime Police. The
complaint is Ex. P.4 P.W.12 who received the complaint directed P.W.4 to obtain header
details and other particulars to find out the origination of the messages. P.W.4 went to
Cyber Caf at Kennath Lane, Egmore along with P.W. 1 she down loaded the message
took print out by using the e-mail I.D. [email protected] Ex.P.9-Ex.P.12. She
extracted and stored the messages in Mo.2 floppies. Thereafter P.W.12 gave a requisition
to the Hathway Cable and Data Com. Pvt. Ltd; under Ex.P.13, for which it gave a reply in
Ex. P.14. P.W.12 also gave a requisition to Dishnet D.S.L. in Ex.P.13 and the reply given
by Dishnet D.S.L is Ex.P.15. P.W.5 speaks about Ex.P.13 and Ex.P.14. P.W.6 speaks
about Ex.P.15.P.W.12 also examined P.W.11 and obtained particulars in Ex. P.29 series
38 State of Tamil Nadu v. Suhas Katti

and confirmed that the messages were originated from Mumbai. P.W.12- Investigation
Officer registered F.I.R. Ex.P.34 on 20.2.04.
Thereafter, P.W.12 proceeded to Mumbai on 24.2.04, and arrested the Accused at
Mumbai on 25.2.04. He seized Mo.1 Cell Phone from the Accused under Mahazar Ex.P.8
P.W.8 and P.W.9 who are running browsing Centre at Mumbai, identified the Accused in
the presence of P.W.12. He seized Ex.P.23, 24 registers from them. P.W.8 speaks about
the Accused and the seizure of Ex.P.22 and the remarks made by P.W.12 in Ex.P.23,
P.W. 9 speaks about the Accused that he came to the browsing centre and signed in the
Register Ex.P24 as R. Ex.P.25 is the word written by the Accused.
P. W. 12, brought the Accused to Chennai on 28.2.04, after producing the Accused before
a Mumbai Court. The Accused gave a confession statement in the presence of P.W. 10
and he gave the password an rose. The said word is Ex.P.27.
The particulars stored in the SIM Card were taken print out in Ex.P. 28 series through
S.M.S. Reader. P.W.12 went to the office of P.W.7 and took computer print out by using
the password an rose. He issued the certificate in Ex.P.21. The computer print outs are
Ex. P 16-P.20. P.W.12 completed investigation and laid charge sheet against the Accused
of offences u/s 67 of I T Act and u/s 469,509 of IPC.
Final Order
this court is not inclined to accept the theory projected by the Accused that the obscene
messages would have been created by P.W.1, P.W.2 and P.W.3 or by Jaichand Prajapathi.
It is clear that the Accused himself has composed and posted the obscene messages from
the browsing centre of P.W.8 and P.W.9. This Court holds that the prosecution has
proved its charges against the accused beyond all reasonable doubt and hence the
Accused is liable to be punished.
The Accused was heard regarding the question of sentence u/s 248 (2) Cr.P.C. The
Accused pleaded for admonition. The Accused is not a lay man. He is educated and
studied upto M.B.A. P.W.1 is holding a responsible post in a multinational Company at
Chennai. The Accused has chosen to post the obscene message for the simple reason that
she refused to marry him. He did not behave like an educated man. Only a family woman
can realise the mental sufferings and pain if unknown persons contacted her through
phone and e-mail and invited her to bed. The mental sufferings and humiliation
undergone by the P.W.1 cannot be compensated in terms of money or by solacial words.
It cannot be stated that the Accused had acted in a heat of passion. Two days repeatedly
he had sent the obscene messageComputer system and browsing centre are meant for
learning things and updating knowledge in various fields. The Accused has misused the
same to take revenge on a sophisticated lady. Therefore, the Accused does not deserve
leniency and is liable to be punished.
State of Tamil Nadu v. Suhas Katti 39

In the result, the Accused is found guilty of offences u/s 469,509 IPC, and u/s 67 of
I.T. Act. and the Accused is convicted and is sentenced to undergo Rigorous
imprisonment for 2 years u/s 469 IPC, and to pay a fine Rs.500/- i/d, to undergo simple
imprisonment for 1 month and for the offence u/s 509 IPC, sentenced to undergo 1 year
simple Imprisonment and to pay a fine of Rs.500/- i/d to undergo simple imprisonment
for 1 month and for the offence u/s 67 of Information Technology Act 2000 to undergo
Rigorous Imprisonment for 2 years and to pay a fine of Rs.4,000/- i/d to undergo S.I. for
6 months. All sentences to run concurrently. The period undergone by the Accused will
be set off u/s 428 Cr.P.C.
*****
 The State (Cyber Cell v. Yogisha @ Yogesh Pandurang Prabhu
ADDL. CHIEF METROPOLITAN MAGISTRATE, 37TH COURT, ESPLANADE,
MUMBAI
C.C. NO. 3700686/PS/2009
(Delivered on 3rd July, 2015)

JUDGMENT - Shri M. R. Natu (Add. CMM)

Prosecution case in brief is as under:
1. One Sonali Asoka Sawai lodged a report in Cyber Cell, Mumbai. Reporter was working in
the Debold Systems Private Limited, since February 2009. Company provided her laptop,
data cards. Prior to 2009, she was working in Mahindra and Mahindra Company. She is
having email id [email protected]. She is also having profile orkut. She come in
contact of accused Yogesha Prabhu through this site, they become friend. Then they meet
facetoface, but later period, reporter did not like nature of this Yogesha and she unfriend him.
2. On 03/03/2009 she opened her email account referred above, and found that she received
one mail from email id [email protected], which was unknown. When she opened this
email, which was received about 00:00:18 a.m., she found flimsy and vulgar comment on
her, but she neglected to the same. When she come back and opened her email account as
usual at about 11 p.m. found same style email. She received such emails having vulgar
comment on her on 5/03/2009, 06/03/2009, 08/03/2009. The emails were displaying nude
photographs, pornographic postures, So she took out prints of all these emails and reported
this fact to cyber cell on 9/4/09. She further reported that when enquiry of her application was
made, it was found that the emails were received from 15 IP addresses of Airtel and Reliance
company. Physical address of first 12 IP addresses was M/s. Wam Bombay Bulk Handling
Equipment Industry Private Limited, Plot No. C 39, B and C, TTC MIDC Turbhe Mahape
Road, New Mumbai and House No. 397, sector 40 Gurgaon , Haryana 122001. She reported
that accused works in above referred company and also visits at Haryana for company work.
She complained that this accused Yogesha outrage her modesty.
3. On this formed report, crime number 110/2009 was registered in Shivaji Park P.S. for
offence under section 509 of Indian Penal Code and 67 and 67A of Information Technology
Act.
4. From perusal of papers, it reveals that investigating officer made enquiry about the IP
address then got physical address from the service provider and reached to the accused. He
seized laptop provided to accused, got it examined through the expert and obtained its report.
He also recorded disclosure statement of accused, wherein he agreed it to open disputed email
id wherefrom offending emails were sent accordingly, he opened the email id by using
password known to him and offending material was found in outbox of the email id so
opened. Printouts of these emails were obtained by IO, and accordingly panchnama was
carried out. He also recorded statements of witnesses and come on conclusion that accused
Yogesh is author of crime, and accordingly submitted chargesheet in court.
The State (Cyber Cell v. Yogisha @ Yogesh Pandurang Prabhu 41

5. My learned predecessor vide Exhibit3 pleased to frame charge for offence punishable
under section 509 of Indian Penal Code and 67 and 67(a) of Information Technology Act.
Plea of accused is placed at exhibit4. Accused denied charge and claimed innocence and trial.
6. From the charge following point arise for determination. My finding thereon follows for
the reasons discussed below.
Sr No POINTS
1 Does prosecution prove that between 3/3/09 to 9/3/09 at about 22.5, five hours from
101/5, second floor tulips house, road number three Shivaji Park Dadar West,
Mumbai. Accused intending to insult the modesty of complainant's end of scene
emails containing obscene message and photographs of pornic postures on email ID
of reporter Sonali, intending that she shall see it and thereby committed an offence
punishable under section 509 of Indian penal code?
Findings Affirmative.
2 Does prosecution prove that in between above period accused sent obscene and
pornographic emails on reporter email id sawaisonali @gmail.com by preparing
bogus email id [email protected] through web and thereby committed an
offence punishable under sections 67 and 67A of information technology act?
Findings - Charge under section 67 & 67A not established for want of proof of
publishing but offence under section 66E is established.
3 Whether any other offence is established?
Findings - As per final order.

REASONS
7. To establish its case prosecution examined, Sonali Sawai (P.W.1) at Exhibit4.She brought
printouts of offending emails which are placed at Articles A to H. She also brought her
reports on record vide Exhibits 5, 6 and 7. Second witness is panch, Krishna Purohit (Exhibit
8). He turned hostile. Third witness is Amit popatwala (Exhibit 9). He brought panchnama
Exhibit10 on record. Kundan Raut (P.W.4) at Exhibit 10. He also turned hostile. Anil Vishnu
Mandoskar (P.W.5) at Exhibhit11 is employer of accused. So as Ashutosh Singh (P.W.6) at
Exhibit12 was though, is colleague of accused. Sonali Mistry (P.W.7) at Exhibit 14, is a
Scientific officer of Forensic Lab. She brought her report Exhibit15 on record. She also
identified laptop, hard disk and allied material vide Articles I and J. Mukund Gopal Pawar
(P.W.8) at Exhibit19, is police officer who investigated this matter. Statement of accused is
recorded separately at Exhibit27.
8. Heard both sides at length. Gone through the case laws referred by defence.
9. At the outset it is required to be noted that this is not offence which took place in face to
face presence. It took place through web, in that way there is no eye witness of the offence,
but, it entirely dependent on circumstantial evidence as rightly pointed out both the parties.
While touching to the evidence on record here it will not to out of place to see ratio relied by
defence reported in 1991EQ(SC)O210; Jaharlaldas v/s. State of Orissa. In this case
42 The State (Cyber Cell v. Yogisha @ Yogesh Pandurang Prabhu

Hon'ble Supreme Court spelled on circumstantial evidence and it's appreciation following in
quote:
It is well settled that circumstantial evidence in order to sustain the conviction must satisfy
three conditions:
1) the circumstances from which an inference of guilt is sought to be drawn must be cogently
and firmly established; 2) those circumstances should be of a definite tendency unerringly
pointed out towards the guilt of accused; 3) the circumstances taken cumulatively should firm
a chain so complete that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and none else and it should be also to
incapable of explanation on any other hypothesis than that of the the guilt of the accused.
10. The judgment also quoted caution as given in Hanumant v/s. State of Madhya Pradesh,
1952 SCR 1091, quoted in dealing with circumstantial evidence there is always the danger
that conjecture or suspicion may take place of legal proof. It is therefore, right to remember
that in cases where the evidence is of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should in the first instance be fully established and all
the facts so established should be consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a conclusive nature and tendency...............
Same is the observation in State of Uttar Pradesh v/s. Ashokkumar Srivastava, 1992 SCR
(1) 37, so needs no reiteration.
11. In light of above law position as to circumstantial evidence, now I will turn to the
evidence available on record. From evidence of Kum Sonali Sawai (P.W.1) and defence as
well, it come in admitted category that Kum. Sonali Sawai, the reporter and accused were
well acquainted with each other. They come across through face book. They become friend
on orkut and the relation reached upto the stage,the accused proposed her for marriage
knowing that reporter is elder than him i.e. at that time accused was of 31 years aged so as
reporter was of 34 years. So here on face identity of accused at personal level of this reporter
and accused is not disputed.
12. Further, if we see the evidence of reporter Sonali Sawai (P.W.1), it reveals that since
03/03/2009 she started receiving obscene emails. The further dates are 05/03/2009,
06/03/2009, 08/03/2009 and 09/03/2009 of the emails were sent from email id so198021@
gmail.com. The emails which are placed at Articles A to H. If these emails, on face are seen
there is no need of giving any special reason to say that these are vulgar contents wherein
alleged sexy look of the reporter is displayed by referring organs, I do not find it necessary to
quote the contents of this emails. ...........
13. The points which are required to be noted from these emails are that who is the sender
appearing on these emails and it described as Su jaz <[email protected]> and these are
sent to email id [email protected]. As far as receiver email is concerned, it is of
reporter Sonali Sawai. She brought it on record through her oral evidence and it is also not
disputed by defence. By the way here, how the sender described himself is relevant to this
matter Article A described
The State (Cyber Cell v. Yogisha @ Yogesh Pandurang Prabhu 43

name Sooraj and who is residing near house of reporter since last one year. Admittedly, it is
not case of reporter that accused Yogeesha, is known as Sooraj or like alias name.
14. According to evidence of Sonali Sawai as she started receiving vulgar messages, she took
out prints of these emails and lodged report/application in Cyber Cell. She deposed that she
also found that her profile is created by accused and messages like Articles A to H were
spread over net and she started receiving calls from Taxi Drivers, Rickshaw Drivers on her
mobile number and they were asking for sex in view of emails received by them. She deposed
that accused created profile by giving name Sana Jazz and put her mobile number on said
profile and all these facts relied in investigation made by Cyber Cell. According to her, police
detected the fact that accused himself created obscene profile and executed offending acts. In
her turn, she claims that
obscene emails and pictures were sent from same IP address through the laptop of accused
which was provided to him by company. She brings on record Exh.5 and Exh.6. On face of
reading of this Exh.5, it reveals that this Sonali has lodged these report after the facts were
detected by Cyber Cell.
15. As already stated the articles which are placed on record i.e. A to H are nothing but vulgar
and can be definitely termed as insulting the modesty of woman. The fact that the reporter
received these emails, the sender sent these emails with intention to open it and seen by
receiver, the aspect like showing words which are of in vulgar nature to intrudes upon the
privacy of such woman are complying.
16. Now vital question in this matter is whether the evidence brought on record connect the
accused as author of crime and for that purpose scrutiny of relevant evidence needs to be
made. Let us do this, effort in up coming discussion.
17. In series, the evidence of police Mukund Gopal Pawar (P.W.8), Investigating Officer
comes first. According to him he is having training in Cyber Law, Computer Forensic and in
Ethical hacker. He attended various seminar in India as well as in America. These facts are
brought on record by way of cross examination and by this facet of cross examination it can
be safely stated that the Investigating Officer is having ample knowledge in respect of cases
and its investigation.
18. According to his evidence, he carried out all technical investigation and it revealed that
the offending emails are generated from email id [email protected] and forwarded to
email i.d. [email protected] and this fact has been already pointed out at the time of
discussing the contents of Articles A to H, so needs no more discussion. Mukund Pawar
(P.W.8) deposed that he issued request email to gmail Server in USA and asked details of
disputed email id [email protected] (herein after mentioned as disputed emails for the
purpose of brevity and email id [email protected] is referred as reporter's email). He
brings on record Exh.20 and 21 in respect of this communication made with gmail Server
which is made from the official email id [email protected] to lisapac@
google.com wherein it is clear that such email was sent by this Investigating Officer and he
received letter from server which is placed at Exh.21. This being a extract of computer and as
received by Investigating Officer can be very well read in discussion. Further, if we see the
cross examination in respect of communication with gmail server, this aspect defence is silent
44 The State (Cyber Cell v. Yogisha @ Yogesh Pandurang Prabhu

and so I have no hesitation to accept the fact that Investigating Officer made effort to collect
information from google search/engine and Exh. 20 and Exh.21 can be very well relied.
19. Investigating Officer Mukund Pawar further deposed that the google search forwarded
details of the disputed emails wherein IP addresses were mentioned. 12 IP addresses were
belonging to Airtel and 2 IP addresses were belonging to TATA Communication. The data
provided by google search is from February, 2009 to March 2009 of various dates and
described 12 IP addresses and 2 IP addresses of different service providers i.e. Airtel and
TATA Communication. He deposed that after receiving communication, he found 12 IP
addresses and then he took search of these IP addresses of google search engine, those are
Airtel and TATA Communication. He deposed that after finding out these two service
providers he issued email to both these service providers vide Exh. 22 and Exh.23. There is
also no dispute about issuance of these letters/emails in entire cross examination. Exh, 22 and
Exh,. 23 shows that this Investigating Officer by using official email id of Cyber Cell issued
email to M. [email protected] and the service provider, provided physical address of this IP
addresses. Exh. 24 and Exh. 25 are also same communication with service provider and in
reply the service provider gave 2 physical IP addresses 1) Wam Bombay Bulk Handling
Equipment Industry Pvt. Ltd., Plot No. C39, B & C, TTC MIDC, Turbhe Mhape Road,
Pawane, Navi Mumbai given by TATA Communication and 2) physical address is house no.
397, sector 40, Gurgaon, Haryana provided by Airtel. 20. He deposed that after
getting/collecting this information, he called reporter Sonali Sawai and asked whether she
know any person working on above addresses more particularly Wam Bombay and she
disclosed that accused Yogesh @ Yogisha Prabhu is working in Wam Bombay and he travel
through out India in relation to company's work, and that all other fact of reaching upto the
proposal of marriage and then breakup between them. He deposed that he disclosed to Sonali
Sawai, reporter about the finding of offender and asked her whether she want to proceed
further and on consent given by this reporter, the report Exh. 5 and Exh.6 was lodged and
crime was registered at Shivaji Park Police Station on her report.
21. He deposed that after registration of crime, he himself carried out further investigation, he
visited office of Wam Bombay, made inquiry with Anil Manduskar, called Yogesh Prabhu
there, and in inquiry accused confessed his guilt. Technically, though his confession is not
admissible on
record as it is made to police, it clears the line of investigation of crime. The witness brings
on record that then he seized harddisk of the laptop which was allotted to accused vide Exh.
10, recorded statement of Manduskar as well, arrest accused vide Exh. 26. As far as arrest of
accused and seizure of laptop is concerned, it reveals that accused himself in his statement u/s
313 of Criminal Procedure Code do not dispute this fact. He admits his arrest as well as the
fact that laptop was seized by police with rider, that because of threats he handed over laptop
as it was in office.
22. By taking pause here and discussing further evidence of Mukund Pawar, I will advert my
attention towards testimony of witness whose references have been made by this Makund
Pawar i.e. Manager Anil Manduskar. The testimony of Anil halfhearted. Though, he
confirmed that accused is his employee, he travel for the work of company, laptop and mobile
was provided him for the purpose of his job alongwith internet connection. He denied to
The State (Cyber Cell v. Yogisha @ Yogesh Pandurang Prabhu 45

corroborate the seizure of hard disk of laptop provided to accused. Though he was declared
hostile and nothing fruitful come on record and the two lines cross examination of this
witness by accused brings on record that the laptop given to accused was used by his group
mates in company also and that they all used to avail internet facility.
23. So far as panch on seizure panchanama is concerned, who is Kundan Mahendra Raut
(P.W. 4), he deposed that one hard disk was with police and it was seized in conference room
of office of Wam Bombay vide Exh. 10. But, he denied to corroborate the fact that the hard
disk was given by accused and then it was seized by police. He is also halfhearted, first he
identified harddisk (ArticleA) when asked by prosecution and denied to identify firmly when
it was asked by accused. If we see the tendency of these witnesses of halfheartedness, it
reveals that these two witnesses are winover against prosecution and they did not support
prosecution on technical aspect of seizure.
24. Now, I will proceed further to discussed evidence of Mukund Pawar and the investigation
carried out by him after seizure of the harddisk. According to him on 18/04/2009 accused
gave disclosure statement Exh. 27 and showed readiness to open the disputed email i.d. by
using password known to him and he brought Exh. 27 on record accordingly. He, alas, the
panch witness Krishna Verdhaji Purohit does not corroborate the fact that accused facing trial
showed readiness to open the disputed email i.d. by using password known to him. To attract
provision of section 27 of Indian Evidence Act as the word password come in category of
fact which was only within knowledge of accused who was in custody. This Krishna Verdhaji
Purohit simply claims that at Shivaji Park Police Station his two signatures were obtained and
nothing like incident of giving statement by accused, opening of disputed email i.d. by using
password known to him alone, and extract printouts from the disputed email id at the office of
police.
25. In this connection, if we proceed further with evidence of Mukund Pawar, he claims that
the accused opened disputed email id by using password known to him, then inbox and
sentbox of email id were searched and in sent box email dated 03/03/2009, 05/03/2009,
09/03/2009 were found which were sent to the reporter's id alongwith the obscene
attachments. He deposed that all of these emails, print outs were obtained by using computer
and printer provided at office of Crime Branch and he accordingly brought on record
Exh.29A to 29F. These are printouts of screen shots of disputed email id which shows
window like crime 110/09, 9 mails, inbox 30198 and documents, screen shot of sent box
which discloses the relevant dates mentioned above and 6 attachments thereto of vulgar
photographs and disputed vulgar messages of which mentioned, has been made at the time of
discussion of Articles A to H. It is pertinent to note that all these extracts and panchanamas
bear signature of accused as well that is to say Exh.27 to Exh.29F. In this respect testimony of
Investigating Officer is challenged. It is required to be noted down the suggestion put to
witness that it is not true to say that even though the accused opened email i.d. as disclosed
in his disclosure statement, it cannot be said that he did not sent objectionable emails to other
end. If this particular suggestion is read by literal way it does not dispute that accused did
give disclosure statement and he opened i.d. If this aspect is seen, hostility of the panch
witness on this aspect is washed away. In view of the suggestion what it is suggested that
though,
46 The State (Cyber Cell v. Yogisha @ Yogesh Pandurang Prabhu

accused opened email id, it cannot be said that offending emails are sent by him.
26. In backdrop of above factual aspect brought on record, here, I will like to note that email
id are having unique password and it can be known to only profile user or gmail user. If entire
tone of cross examination is seen what is suggested is that the laptop and internet might have
been used by other colleagues of accused. It is not case of defence that this particular/disputed
email id was used by office staff for carrying out its official work. The disputed email id is
not general email id of the office by which it can be expected that its password was available
to each of the office member. Besides this, the emails are sent to reporter particularly, it is not
case of the prosecution as well as defence that the reporter was working in the Wam Bombay
office with accused to have acquaintance with other workers/employees therein who would
have been presumed that they know the email address of reporter. Here, the acquaintance of
reporter and accused strongly suggested that accused is the only person who was knowing
email id of reporter and he is having only knowledge about her. If we see the testimony of
hostile colleague of the accused in his office, it is not suggested as well to them that the
reporter was having any nexus with official staff excluding accused nor it is case of defence
that reporter was working in establishment of accused. If all these aspects are clubbed
together those, strongly suggested that the accused can be only person who had sent these
disputed emails.
27. Now I will turn to the legal aspect of disclosure statement as envisaged in section 27 of
Indian Evidence Act. It contemplate that confessional statement leading discovery that to
distinct are admissible in evidence. The mischief of section 27 of Indian Evidence Act says
that the fact is within exclusive knowledge of the accused and at his instance discovery took
place. If we see the unique feature of email id that it is having unique password known only to
its user it can be very well said that opening of email id by accused by using unique password
known to him alone, satisfy the mischief described in section 27 of Indian Evidence Act.
Here, what is the property? Herein case, the property is disputed emails which are placed on
articles A to H received by reporter. Considering the entire working pattern of web and email,
if the accused would have not sent these disputed emails, there was no reason to find its
presences in the disputed id. As already pointed out the disputed property, emails received by
reporter i.e. Email matches with the discovery i.e. getting print outs from the disputed email
id on opening it by accused, those are Exh. 29A to 29F and here, the identity of property as
envisaged in section 27 of Indian Evidence Act, get complied. The web data cannot accessed,
which is of personal nature and that to when it has been sent from particular email id or
profile. This aspect justify that accused was having control over the disputed email id and
contents therein. From the discussion made above, I have no hesitation to conclude that the
testimony given by Mukund Gopal Pawar on aspect of disclosure statement by accused, and
thereafter recovery of printouts from disputed email id, is reliable.
28. As mark of caution, here I will like to quote that the evidence in relation to section 27 of
Indian Evidence Act is a weak piece of evidence, so it is necessary to find out whether there is
more evidence which will fortify the prosecution case, and for this purpose the technical
aspect described by another witness Sonali Mistri (Expert) become relevant.
29. Sonali Mistri brought on record procedure which she carried out with this examination.
After receipt of property i.e. Hard Disk from Shivaji Park Police Station, she prepared mirror
The State (Cyber Cell v. Yogisha @ Yogesh Pandurang Prabhu 47

copy, thereafter calculated hash value of original hard disk and the mirror copy. Both hash
value were same. Then she carried out process of reading mirror copy and again hash value
was calculated for verification and it again matched with original. In my humble opinion, all
these process is required for securing the genuineness of the process and she had complied it.
30. In next segment she brings on record that she recovered deleted files, found out internet
access history, calculated hash value of each recovered files and then started process of
finding out key words. What of this key words can be found in the report sent by
Investigating Officer which is placed at Exh. 15. Exh. 15 discloses that traces of disputed
email id were found in unallocated cluster which was pointing out that this machine/hard disk,
the disputed email was accessed. She has also in tabular manner mentioned the physical
sector, logical sector, cluster sector, sector offset and file offset, which she found present by
analysis of data made by her. Beside this, the witness also found traces of reporter's email id
in same manner, in unallocated cluster, which are also mentioned in tabular form.
31. Most important aspect here in case is that finding of traces of orkut profile in the name of
Sonali Sawai with reference to Exh. 2 forwarded to her and Exh. 2 is nothing but, the profile
which is disclosing phone number of the reporter. In my humble opinion, there was no reason
to find out traces of this orkut profile in the laptop allotted to accused. The report in
categorical manner brings out on record that the disputed emails were found in unallocated
cluster of the laptop allotted to accused alongwith obscene photographs of pornic postures
which are the disputed emails received by reporter Sonali Sawai. It is pertinent to note that the
factor like creation of messages and dates of sending those, are also matching. It will not be
out of place to see when the files are created and when reporter received these images.
Column no. 8 describes the dates of 3 pictures images. The files are created on 03/03/2009 at
10:42:46 p.m., 10:41:58 p.m. and 00:00:00. After these dates are tallied with the dates of
emails received by the reporter those also confirmed that those are same and which
undoubtedly tend to show the allegations made by prosecution. To be more specifically, I will
attract my attention towards Article H, it gives date 09/03/2009 which is disputed date found
in the forensic examination.
32. One more circumstance which here needs referrence which is related to Gurgaon. As
already observed the colleagues of accused have been winover, the relevant evidence which is
found reliable can very well be utilised for the purpose of conclusion. If we see evidence of
Ashutosh Srivastav (P.W. 6), he do not deny that accused never come at Gurgaon office. His
throughout statement is that he do not remember this fact. In my humble opinion, there is no
need of giving special reason how he faded the memory of the visit of police officer which is
not normal in day to day life that too, in relation of commission of offence. In this backdrop,
it will not be out of place to see the statement of accused. He do not dispute that he was
having occasion to visit Gurgaon office for his official work. In this back drop, the statement
of Investigating Officer Mukund Pawar (P.W.8) becomes important and as well reliable that
police machinery that dugged out this fact that accused visited Gurgaon office, of which IP
address is found in the communication made by gmail server.
33. Now I will turn to facet which have been highlighted by defence in cross examination as
well as at the time of argument one by one. The important witnesses are reporter,
Investigating Officer and Forensic Expert. The discussion as to relationship between accused
48 The State (Cyber Cell v. Yogisha @ Yogesh Pandurang Prabhu

and this reporter has been already made, so needs no reiteration. She strongly denied that she
is having any friend by name SuJazz on orkut. She also denied that because of breakup she
lodged report and that accused did not commit offence. She categorically explains that in
application she did not give any name of any person though, she was knowing email i.d. of
accused as admitted that she did not make any reference that she is having any complaint
against accused. If we see this aspect, the cross examination does not bring the prosecution
case in category of reasonable doubt. If we turn to the common question to Investigating
Officer and Forensic Expert, in relation to identity of accused they admit that technology
cannot point out accused that at particular time, this particular person would have used
internet or accessed web. In my humble opinion, technology is creation of human mind to
assist to come on conclusion and the inferences are required to be drawn by human by
applying reason and so the submission of Ld. Advocate for defence that this admission
washed out technical report and create doubt about the authorship of crime are not appealing
to my mind. The technology help us to find out the circumstances and the human as to apply
reason to it and has to draw inferences and come on conclusion and that is the only part of the
technology which can be utilised in judicial proceeding.
34. Another objection raised by defence is that because of breakup accused is implicated in
case. Defence submitted that this enmity cannot be ruled out and of this fact benefit goes to
accused. For this purpose defence relied on verdict of Hon'ble Patna High Court in Cri. Misc.
Appln. No. 550/09 Gladdy Jousa v/s. State of Bihar; wherein on the basis of enmity
submitted before Hon'ble High Court, Hon'ble High Court has quashed the proceeding. First
of all, I will like to note that this court is not having inherent jurisdiction to quash the
complaint. Further, the facts in referred case, are related to initial stage of filing complaint
and now this court is dealing with the matter after fullfledged trial that is to say the court is
appreciating entire material given on record by prosecution and its witnesses. The relevant
part of this judgment which are utilised here in only whether enmity or breakup between the
reporter and the accused can be the reason to file this complaint.
35. For this purpose the initial stage of filing application will be helping to come on
conclusion. For this purpose I will attract my attention towards the first approach of reporter
to police vide Exhibit7 and the evidence laid down by Investigating Officer as well. The
reporter Sonali Sawai nowhere claims that she initial stage itself filed report against accused
facing trial. What she claims that after filing application, the cyber cell investigated the matter
and reached upto the end of accused and then formal report Exh. 5 and 6 were lodged by her.
In my humble opinion, if the reporter was having any reason to grind vengeance against
accused because of alleged breakup at initial stage itself she would have named this accused
facing trial and not after the dugging out roots of mater of Cyber Cell and this fact has been
well corroborated by Investigating Officer Mukund Gopal Pawar. The police also did not
book the accused directly, they have made efforts to reach upto the proper end by making
technical investigation, making communication with service provider and then he again call
the reporter and at this juncture she disclosed relation with
accused who was working at Wam Bombay at which end the police officer reached, and then
the reporter consented for prosecuting accused. This facet rules out, the fact of enmity raised
by defence that only because of breakup the accused has been implicated in this case.
The State (Cyber Cell v. Yogisha @ Yogesh Pandurang Prabhu 49

36. From the discussion of facts and circumstances coming on record, the entire episode of
this incident can be summarized as under:
37. The reporter and accused were having friendly relationship and then relationship breakup
which reached upto the marriage proposal and then the disputed episode started. The reporter
received emails on the given dates, the reporter approached investigating machinery,
investigating
machinery after making inquiries and technical investigation reached to the end of accused,
the Investigating Officer further carried out technical investigation, forwarded investigation
like seizure of hard disk, where from the disputed emails were sent, got it the confirmed that
traces of disputed emails are found out in it. In this course, the disclosure statement given by
accused, opening the disputed email having unique password which can be only within
knowledge of accused, the investigating officer discovered fact that the disputed emails were
sent from this email id and its traces were found in sent box of the email id open by the
accused which he was having exclusive control. If all these circumstances are considered
together, I find that it is created unbreaked chain of circumstances which is pointing out
towards guilt of accused while committing the offence punishable under section 509 of Indian
Penal Code, by use of web and technology related to it.
38. Here, it can be gathered from evidence that accused intentionally and knowingly
intervened privacy of reporter which attracts provisions of section 66E of Information
Technology Act. As far as charge under section 67 and 67A is concerned, I find that evidence
as to publishing open sexual desire is short in present case to lead any other person than
reporter so I hold that offence under section 67 and 67A is not established beyond reasonable
doubt but it attracts 66E as referred above. Though charge under section 66E is not framed
specifically, I find that offence under section 66E being having less punishment than
punishment in sections 67 and 67A, accused can be dealt for said charge. Here I find that by
charge of section 509 of Indian Penal Code, accused was having knowledge about his defence
and so by holding him guilty for offence under section 66E, no prejudice will cause to
defence. Hence, I answer point no. 1 in affirmative and point no. 2, as offence under section
67 and 67A is not proved but offence under section 66E of Information Technology Act is
established. So I hold that prosecution has established offence punishable under section 509
of Indian Penal Code and section 66 (E) of Information Technology Act, I hold accused in
guilt of above said offences and convict him.
41. Heard accused on the point of sentence. He submitted that he is the only earning member
in his family. His family i.e. his wife, mother and father are dependent on him, so leniency
may be shown to him. Ld. Advocate for accused submitted that accused is Engineer by
conviction his life will be spoiled and by taking lenient view, accused may be punished
imposing fine only. Ld. APP submitted that the offence has been committed by use of web,
cyber crimes are increasing and so to curb out tendency of committing offence by using the
technology, deterrent punishment is necessary.
42. Upon hearing either parties on point of sentence and looking in the peculiar circumstances
of this case, that privacy of woman has been intruded by the accused here required some
substantial sentence. But, if we see the mitigating circumstance as to fact that there were
50 The State (Cyber Cell v. Yogisha @ Yogesh Pandurang Prabhu

relationship between reporter and accused which reached upto the extent of giving proposal of
marriage and the fact that now both are leading independent marital life, the accused being
Engineer and bread winner of his family, in my humble opinion following sentence will
suffice purpose of justice. In result, I proceed to pass the following order:
ORDER
1. Accused Yogisha @ Yogesh Pandurang Prabhu is convicted for offence punishable under
section 509 of Indian Penal Code and section 66(E) of Information Technology Act, vide
section 248(2) of Code of Criminal Procedure.
2. Accused is sentenced to suffer simple imprisonment for 1 (one) month for offence
punishable under section 509 of Indian Penal Code and to pay fine of Rs. 5,000/(Rs. Five
Thousand only) in default to suffer simple imprisonment for one (1) month.
3. Accused is sentenced to suffer simple imprisonment for 3 (three) months for offence
punishable under section 66(E) of Information Technology Act and to pay fine of Rs.10,000/
(Rupees Ten Thousand only) in default to suffer simple imprisonment for 2 (two) months.
4. Both the substantive sentences shall run concurrently. 5. Accused shall surrender his bail
bond in court.
6. Property hard disk shall be returned to the Anil Vishnu Mandoskar who is the Managing
Director of Wam Bombay. Order as to disposal of property shall operate after appeal period is
over.
7. Copy of this judgment be provided to accused free of cost.
8. Pronounced in open court.
*****
 Maqbool Fida Husain v. Raj Kumar Pandey
Delhi High Court, CRL. REVISION PETITION NO.114/2007
Decided on 8 May, 2008
Sanjay Kishan Kaul, J. - 5. The present petitions seeking to challenge the summoning orders
against the petitioner arise from such a contemporary painting celebrating nudity made by an
accomplished painter/petitioner. The said painting depicts India in an abstract and graphical
representation of a woman in nude with her hair flowing in the form of Himalayas displaying
her agony. It is stated that the said painting was sold to a private collector in the year 2004
and that the petitioner did not deal with the same in any manner whatsoever after sale.
Subsequently in the year 2006, the said painting entitled "Bharat Mata" was advertised as part
of an on-line auction for charity for Kashmir earthquake victims organized by a non-
governmental organisation with which the petitioner claims to have no involvement. It is
stated that the petitioner at no point in time had given a title to the said painting. The
advertisement of the said painting led to large scale protests for which the petitioner also had
to tender an apology.
6. It is in this background that there were private complaints filed at various parts of the
country being Pandharpur, Maharashtra; Rajkot, Gujarat; Indore and Bhopal, Madhya Pradesh
alleging various offences against the petitioner on account of the aforesaid painting
consequent whereto summons and warrants of arrest were issued against the petitioner. The
petitioner approached the Supreme Court seeking consolidation of the matter. The Supreme
Court acceded to the request and in pursuance to the directions passed vide order dated 04-12-
2006, the said complaint cases pending consideration were consolidated and transferred to the
court of the Ld. ACMM, Delhi by way of transfer petitions filed by the petitioner being T.P.
(Cri.) No. 129/2006, T.P. (Cri.) No. 182/2006 and T.P. (Cri.) No. 224/2006. The Ld. ACMM,
Delhi issued summons to the petitioner for various offences Under Section 292/294/298 of the
Indian Penal Code ('IPC' for short) against which the present revision petitions have been
filed.
7. Notices were issued by this Court and exemption was granted to the petitioner from
personal appearance. In view of certain propositions having arisen, this Court deemed it
appropriate to issue court notice to the Ld. Attorney General in order to depute a law officer
for assistance to this Court. A perusal of the order sheets shows that none had sought to
appear and argue the matter for the respondents in Crl. Rev. P. 114/2007 and Crl. Rev. P.
280/2007, thus this Court vide order dated 20-03-2008 closed the right of the said respondents
to advance any further submissions. However, the GPA holder of the respondent in Crl. Rev.
P. 280/2007 entered appearance on 31-03-2008 and requested to make further submissions in
that behalf which was permitted.
Paras 8-27 deleted
28. .... the Hicklin's Test has been applied to determine obscenity in England since its
evolution [In 1857, Lord Campbell enacted the first legislative measure against obscene
books etc. and his successor in the office of Chief Justice interpreted his statute in Regina v.
Hicklin (Supra) where it was held as follows: The test of obscenity is whether the tendency
of the matter charged as obscenity is to deprave and corrupt those whose minds are open to
52 Maqbool Fida Husain v. Raj Kumar Pandey

such immoral influences and into whose hands a publication of this sort may fall. This came
to be known as the Hicklins test.(paras 23-24of the judgement)]. The Courts in the United
States of America have given up the Hicklins Test, but the Indian law on obscenity is more or
less based on it. In addition to this, law on obscenity in India also panders to the test of
'lascivious and prurient interests' as taken from the American law.
India
29. The general law of obscenity in India can be found in Section 292 of the Indian Penal
Code, 1860 which reads as under:
Section 292. Sale, etc., of obscene books, etc.-[(1)] For the purposes of Sub-section (2) book,
pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall
be deemed to be obscene, if it is lascivious or appeals to the prurient interest or if its effect, or
(where it comprises two or more distinct items) the effects of any one of its items, is, if taken
as a whole, such as to tend to deprave and corrupt persons who are likely , having regard to all
relevant circumstances, to read, see or hear the matter contained or embodied in it.] [(2)
Whoever- sells, lets to hire, distributes, publicly exhibits or in any manner puts into
circulation or for purposes of sale, hire, distribution public exhibition of circulation, makes
produces, or has in
(a) Possession any obscene book, pamphlet, paper, drawing painting, representation or figure
or any other obscene objects whatsoever, or
(b) Imports, exports or conveys any obscene objects for any of the purposes, aforesaid, on
knowing or having reason to believe that such objects will be sold let to hire, distributed or
publicly exhibited or in any manner put into circulation or
(c) takes part in or receives profit from any business in the course of which he knows or has
reasons to believe that such an object are for any of the purposes aforesaid, made produced,
purchased , kept, imported, exported, convey, publicly excited, or in any manner put into
circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is
ready to engage in any act which is an offence under this section, or that any such obscene
object can be procured from or through any person, or
(e) Offers or attempts to do any act which is an offence under this section, shall be punished
[on first conviction with imprisonment of either description for a term which may extend to
two years, and with fine which may extend to two thousand rupees, and, in the event of a
second or subsequent conviction, with imprisonment of either description for a term which
may extend to five years, and also with fine which may extend to five thousand rupees.]
[Exception.- this section does not extend to-
(a) any book, pamphlet, paper, writing, drawing, painting, representation of figure-
(i) The publication of which is proved to be justified as being for the public good on the
ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is
in the interest of science, literature, art or learning or other objects of general concern, or
(ii) which is kept or used bona fide for religious purpose;
Maqbool Fida Husain v. Raj Kumar Pandey 53

(b) any representation sculptured, engraved, painted or otherwise represented on or in-

(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological
Sites and Remains Act, 1958(24 of 58), or
(ii) any temple, or any car used for the conveyance of idols, or kept or used for any religious
purpose.]]
30. Section 292 IPC was enacted by the Obscene Publications Act to give effect to Article I of
the International Convention for suppression of or traffic in obscene publications to which
India is a signatory. By Act 36 of 1969, Section 292 was amended to give more precise
meaning to the word 'obscene' as used in the section in addition to creating an exception for
publication of matter which is proved to be justified as being for the public good, being in the
interest of science, literature, art or learning or other objects of general concern. Prior to its
amendment, Section 292 contained no definition of obscenity. The amendment also literally
does not provide for a definition of 'obscenity' inasmuch as it introduces a deeming provision.
31. On a bare reading of Sub-section (1) of Section 292 it is obvious that a book etc. shall be
deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it
tends to deprave and corrupt persons who are likely to read, see or hear the matter alleged to
be obscene. It is only once the impugned matter is found to be obscene that the question of
whether the impugned matter falls within any of the exceptions contained in the section
would arise.
32. Section 67 of the Information Technology Act, 2000 relevant for the subject under
discussion reads as follows:
67. Publishing of information which is obscene in electronic form.--Whoever publishes or
transmits or causes to be published in the electronic form, any material which is lascivious or
appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons
who are likely, having regard to all relevant circumstances, to read, see or hear the matter
contained or embodied in it, shall be punished on first conviction with imprisonment of either
description for a term which may extend to five years and with fine which may extend to one
lakh rupees and in the event of a second or subsequent conviction with imprisonment of either
description for a term which may extend to ten years and also with fine which may extend to
two lakh rupees.
33. Thus Section 67 is the first statutory provisions dealing with obscenity on the Internet. It
must be noted that the both under the Indian Penal Code, 1860 and the Information
Technology Act, 2000 the test to determine obscenity is similar. Therefore, it is necessary to
understand the broad parameters of the law laid down by the courts in India, in order to
determine "obscenity".
Artistic Freedom and Obscenity
44. There is a sharp distinction between Constitution of United States of America and India.
In the former, freedom of speech guaranteed is absolute and in the later the Constitutional
itself provides for certain exceptions. The duty cast upon the courts in India is to ensure that
the State does not impose any unreasonable restriction.
54 Maqbool Fida Husain v. Raj Kumar Pandey

45. The Constitution of India, by virtue of Article 19 (1) (a), guarantees to its citizen the
freedom of speech and expression. India is also a party to the International Covenant on Civil
and Political Rights and therefore bound to respect the right to freedom of expression
guaranteed by Article 19 thereof, which states:
a. Everyone shall have the right to hold opinions without interference.
b. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds regardless of frontiers, either
orally, in writing or in print, in form of art, or through any other media of his choice.
46. Nevertheless, there is an inseparable connection between freedom of speech and the
stability of the society. This freedom is subject to Sub-clause (2) of Article 19, which allows
the State to impose restriction on the exercise of this freedom in the interest of public decency
and morality. The relevant portion of the same has been reproduced below:
Article 19(1) (a): All citizens shall have a right to freedom of speech and expression.
...(2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, insofar as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub-clause in the interests of 4[the sovereignty
and integrity of India,] the security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of court, defamation or incitement to an
offence.]
47. A bare reading of the above shows that obscenity which is offensive to public decency
and morality is outside the purview of the protection of free speech and expression, because
the Article dealing with the right itself excludes it. Thus, any interpretation of 'obscenity' in
the context of criminal offences must be in consonance with the constitutional guarantee of
freedom of expression which freedom is not confined to the expression of ideas that are
conventional or shared by the majority. Rather, it is most often ideas which question or
challenge prevailing standards observed by the majority that face the greatest threat and
require the greatest protection as was so observed in Ranjit Udeshi's case (supra).
55. In so far as the scope of Section 292 is concerned, from the above discussion, it is clear
that that for an offence to be made out under the said section, its ingredients need to be met.
In the context of the present painting to be deemed to be obscene, it has to satisfy at least one
of the three conditions: (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it
tends to deprave and corrupt persons who are likely to read, see or hear the matter alleged to
be obscene. In addition to this, the relevance of exceptions arises in excluding otherwise
obscene matter from the ambit of the criminal offence of obscenity and such exceptions has
no role to play in determination of the obscenity of the impugned matter.
56. The evolution of law in relation to the delicate balance between artistic freedom viz-a-viz
the right of speech and expression while dealing with the question of obscenity requires
certain important norms to be kept in mind. .
70. To fall within the scope of 'obscene' under Section 292 & 294 IPC, the ingredients of the
impugned matter/art must lie at the extreme end of the spectrum of the offensive matter. The
legal test of obscenity is satisfied only when the impugned art/matter can be said to appeal to
Maqbool Fida Husain v. Raj Kumar Pandey 55

a unhealthy, inordinate person having perverted interest in sexual matters or having a

tendency to morally corrupt and debase persons likely to come in contact with the impugned
art.
71. It must also be remembered that a piece of art may be vulgar but not obscene. In order to
arrive at a dispassionate conclusion where it is crucial to understand that art from the
perspective of the painter, it is also important to picture the same from a spectator's point of
view who is likely to see it.
75. The complainants/respondents in Crl. Rev. P. Nos. 114/2207 and 282/2007 have also
alleged of an offence Under Section 294 and 298 IPC against the petitioner. Section 294 IPC
reads as under:
Section 294. Obscene acts and songs. Whoever, to the annoyance of others-
(a) Does any obscene act in any public place, or
(b) Sings, recites or utters any obscene song, balled or words, in or near any public place,
Shall be punished with imprisonment of either description for a term which may extend to
three months, or with fine, or with both.]
76. Section 294 IPC deals with the prevention of an obscene act being performed in public to
the annoyance of the public. In this respect, the submissions made by the petitioner was that
to make out a case under the aforesaid section the main ingredients of the section need to be
complied with which includes the impugned act to be performed in a public place; the said act
to be obscene and lastly, to cause annoyance to others. The learned Counsel placing reliance
on Narendra H. Khurana and Ors. v. The Commisssioner of Police and Anr. 2004 Cri.L.J.
3393 stated there is no prima facie case made out under the aforesaid section since there is no
disclosure made in the complainants of any immediate, proximate nexus between the alleged
annoyance of the complainants and act done in a public place by the petitioner. The alleged
annoyance could have been by viewing the painting on the internet and the only alleged act of
the petitioner having a nexus with the alleged annoyance is the uploading of the painting on
the website. It was also pleaded that there could have been no 'annoyance' caused to the
complainants by their viewing the said painting on the website for the reason that the
complainants could have easily chosen not to view the website any further.
77. For the offence to be made out under Section 298 IPC, the accused must have a deliberate
intention of wounding the religious feelings of the complainant by uttering some word or
making some sound or a gesture or placing an object in the sight of the complainant and it is
the contention of the learned Counsel for the petitioner that the petitioner has done no such
act which can fall under the said purview. Section 298 IPC provides as under:
Section 298. Uttering, words, etc., with deliberate intent to wound the religious feelings of
any person Whoever, with the deliberate intention of wounding the religious feelings of any
person, utters any word or makes any sound in the hearing of that person or makes any
gesture in the sight of that person or places any object in the sight of that person, shall be
punished with imprisonment of either description for a term which may extend to one year, or
with fine, or with both.
56 Maqbool Fida Husain v. Raj Kumar Pandey

78. Akin to Section 294 IPC, Section 298 IPC also requires a nexus between the impugned act
and the alleged deliberate intention of the petitioner to wound the religious feelings of the
complainants, which according to the learned Counsel is not so in the present case. It is the
case of the learned Counsel for the petitioner that the impugned painting cannot form the
basis of any deliberate intention on the part of the petitioner to wound the religious feelings of
the complainants since the figure, on the basis of the identity alleged, represents an
anthropomorphic depiction of the nation. It is also not a religious depiction which is capable
of offending the 'Hindu' religious feelings as alleged as also that the concept of Bharat Mata is
not the sole premise or belief of Hindus alone. Learned Counsel for the petitioner drew
strength from the judgments of Narayan Das and Anr. v. State ; Shalibhadra Shah and Ors. v.
Swami Krishna Bharati and Anr. 1981 Cri. L.J. 113 and Acharya Rajneesh v. Naval Thakur
and Ors. 1990 Cri.L.J. 2511 to advance the proposition that a mere knowledge of the
likelihood that the religious feelings of another person may be wounded would not be
sufficient to hold a person liable Under Section 298 IPC.
79. In addition to this, in Crl. Rev. P. No. 282/2007, the offence Under Section 500 IPC is
also alleged against the petitioner. It is submitted by the learned Counsel for the petitioner
that such offence cannot be made out against the petitioner for the reason that the basic
ingredient of the offence of defamation being some imputation capable of harming the
reputation of the complainant is absent from the complaint.
87. The learned Counsel argued that it is not the case that the impugned painting was put up
for display in some art gallery or private exhibition, instead it was uploaded on his own
website which could be accessed by any person and any common man who is a patriot would
get affected by the said picture. Hence, the yardstick to determine whether the painting is
obscene or not should be seen from the mindset of the society as a whole and not of a
particular 'class'.
96. I have heard the learned Counsels for the parties and given deep thought to the matter
keeping in mind the importance of the legal principles raised in this matter. A perusal of the
complaints and the material placed on record show that the narrow questions which need
consideration of this Court are that whether an artist like in the present case be given the
liberty to paint a nation in the context of motherland in nude and whether such a painting
would be considered as obscene or not. In the trial proceedings, only summoning orders have
been passed till now, thus the determination of the above said questions shall be based on
certain assumptions that the painter had made the said painting portraying Mother India in
nude titled 'Mother India Nude Goddess' and put up on the website owned by the artist
himself.
98. In the conspectus of the legal principles enunciated and discussed aforesaid both of India
and across the globe, the legal tests governing the law on obscenity are clear. On applying the
said tests governing obscenity, in my considered view, the said painting cannot be said to fall
within the purview of Section 292 thereby making it obscene. The impugned painting on the
face of it is neither lascivious nor appeals to the prurient interests. At the same time, the
person who is likely to view the said painting would not tend to be depraved or corrupted. In
other words, the said painting would not arouse sexual interest in a perverted inordinate
person or would not morally corrupt and debase a person viewing the said painting. Though
Maqbool Fida Husain v. Raj Kumar Pandey 57

some might feel offended or disgusted at the very inception of seeing the alleged Mother
India in nude but that by itself and nothing more in my opinion is not sufficient to qualify the
test of obscenity. The said painting depicting India in a human form in no manner has that
tendency to make an average person feel embarrassed by naked portrayal of a concept which
has no particular face to it since the painting has not lost its artistic value/touch.
99. An attempt to understand the said painting from the artist's/petitioner's perspective would
show how the painter by way of an abstract expression has tried to elucidate the concept of a
nation in the form of a distressed woman. No doubt, the concept of a nation has had a long
association with the idea of motherhood but just because the artist has expressed it in nude
does not make the painting obscene per se thereby satisfying the test that nudity or sex alone
cannot be said to be obscene. If the painting is looked as a whole, it would reveal that that the
revulsion referred to by learned Counsel for the respondents of patriotic nationals would not
arise for the reason that except the fact that it is in nude, there is nothing which can be
considered as pinching to the eye. As a matter of fact, the aesthetic touch to the painting
dwarfs the so called obscenity in the form of nudity and renders it so picayune and
insignificant that the nudity in the painting can easily be overlooked.
100. Once Hans Hofmann said and I quote, "A work of art is a world in itself reflecting senses
and emotions of the artist's world." To put it differently in the words of Edward Hopper,
"Great art is the outward expression of an inner life in the artist." If the above holds true, then
it would not be wrong to suggest that the petitioner is pained by the growing untold misery of
our nation and made an attempt to bring the same out on a canvass. The artist's creativity in
this painting is evident from the manner in which the artist by way of a tear and ruffled,
unkempt, open hair of the woman tried to portray the sad and the dispirited face of our nation
who seems to have suffered a great deal of anguish and agony. A woman's sorrow has been
described by the way the woman is lying with her eyes closed, with one arm raised on her
face and a tear dropping from the eye. The object of painting the woman in nude is also part
of the same expression and is obviously not to stimulate the viewer's prurience but instead to
shake up the very conscious of the viewer and to invoke in him empathy for India and
abhorrence for the culprits. The person who may view the painting is likely to react in tears,
silence or analogous to the same but no way near the feelings of lust. There can be many
interpretations to the painting. One of the interpretations to it can be to show the disconsolate
India which is entangled in various problems like corruption, criminalisation, crisis of
leadership, unemployment, poverty, over population, low standard of living, fading values
and ethics etc. The other can be that Bharat Mata is perhaps just used as a metaphor for being
so bereft because of the earthquake which occurred around the time when this painting was
made. Other than this, the bold use of colour and the depiction of the great range of
Himalayas by way of the hair flowing of the women restores the artistic touch in the painting.
101. One of the tests in relation to judging nude/semi nude pictures of women as obscene is
also a particular posture or pose or the surrounding circumstances which may render it to be
obscene but in the present painting, apart from what is already stated above, the contours of
the woman's body represent nothing more than the boundaries/map of India. There can be a
numbers of postures or poses that one can think of which can really stimulate a man's deepest
hidden passions and desires. To my mind, art should not be seen in isolation without going
58 Maqbool Fida Husain v. Raj Kumar Pandey

into its onomatopoetic meaning and it is here I quote Mr. Justice Stewart of the US Supreme
Court in Jacobellis v. Ohio 378 U.S. 184 (1964) who defined 'obscenity' as, "I will know it
when I see it". The nude woman in the impugned painting is not shown in any peculiar kind
of a pose or posture nor are her surroundings so painted which may arouse sexual feelings or
that of lust in the minds of the deviants in order to call it obscene. The placement of the
Ashoka Chakra or the States in the painting is also not on any particular body part of the
woman which may be deemed to show disrespect to the Ashoka Chakra/States and the same
was conceded by the learned Counsel for the respondent during the course of the arguments
advanced. Even if a different view had to be taken that if the painter wanted to depict India in
human form, it may have been more appropriate to cloth the woman in some manner may be
by draping a sari or by a flowing cloth etc., but that alone cannot be made a ground to
prosecute the painter. It is possible that some persons may hold a more orthodox or
conservative view on the depiction of Bharat Mata as nude in the painting but that itself
would not suffice to give rise to a criminal prosecution of a person like the petitioner who
may have more liberal thoughts in respect of mode and manner of depiction of Bharat Mata.
The very theme of our Constitution encompassing liberty, equality and fraternity would abhor
the non tolerance of another view. The judge also must not apply his more liberal or
conservative view in determining this aspect but should place himself in the shoes of the
painter and endeavor to decipher the theme and thought process of the painter who created the
painting. It would always be prudent for the judge to err on the side of a liberal interpretation
giving the scheme of our Constitution.
105. The conundrum which has blocked the minds of a few today was given a riposte by
Swami Vivekananda in the following words8:
...we tend to reduce everyone else to the limits of our own mental universe and begin
privileging our own ethics, morality, sense of duty and even our sense of utility. All religious
conflicts arose from this propensity to judge others. If we indeed must judge at all, then it
must be `according to his own ideal, and not by that of anyone else'. It is important, therefore,
to learn to look at the duty of others through their own eyes and never judge the customs and
observances of others through the prism of our own standards.
106. It would not be proper to hold that the painter/petitioner had a deliberate intention to
manifestly insult Bharat Mata which is clear from his various interviews and reports placed
on record where he has consistently maintained that he actually celebrates nudity and
considers it as the purest form of expression. It also cannot be lost sight of that he had
immediately withdrawn the said painting from the auction and apologised to those offended,
thus making it clear that his is only an artistic impulse. Under the criminal jurisprudence, for
an offence to be made out against an accused, the ingredients of means read and actus reas
need to be proved. In the present case, since the scope of the subject is so limited, it does not
really require any evidence to be led and on the face of it, both the elements i.e. means rea
and actus reas appear to be absent.
107. I am unable to accept the plea raised by the learned Counsel for the respondents that the
said painting uploaded on a website could be accessed by any person sitting across the globe
who in consequence whereto could get affected by viewing the same. There can be no
exasperation caused by viewing such painting on the website for the reason that a person
Maqbool Fida Husain v. Raj Kumar Pandey 59

would firstly access such a website only if he has some interest in art and that too
contemporary art and in case he does view such a website, he always would have the option
to not to view or close the said web page. It seems that the complainants are not the types who
would go to art galleries or have an interest in contemporary art, because if they did, they
would know that there are many other artists who embrace nudity as part of their
contemporary art. Hence, the offence alleged Under Section 294 IPC can not be made out.
Similarly, the ingredients of Section 298 IPC as alleged are not met since there seems to be no
deliberate intention on the part of the petitioner to hurt feelings of Indians as already stated
and as a matter of fact, the subject matter i.e Bharat Mata could be alleged to wound
nationalist feelings of an individual and not any religious feelings. I am in agreement with the
contention raised by the learned Counsel for the petitioner that the impugned painting cannot
form the basis of any deliberate intention to wound the religious feelings of the complainants
since the figure, on the basis of the identity alleged, represents an anthropomorphic depiction
of a nation as also that to hold a person liable under the above said section, mere knowledge
of the likelihood that the religious feelings of another person may be wounded would not be
sufficient.
108. Section 500 IPC requires the basic ingredient of defamation to be satisfied which seems
to be completely absent in the present case.
116. Our Constitution by way of Article 19(1) which provides for freedom of thought and
expression underpins a free and harmonious society. It helps to cultivate the virtue of
tolerance. It is said that the freedom of speech is the matrix, the indispensable condition of
nearly every other form of freedom. It is the wellspring of civilization and without it liberty of
thought would shrivel.16
117. Every time an artist portrays something different, something which is an unpopular view
point, it may accompany discomfort and unpleasantness but that in itself cannot be a ground
to curb the artistic freedom and quickly go on to label it as obscene. There might be people
who may actually get offended by those of Hussain's paintings or others but the right course
of action for them, is to simply shrug it off or protest peacefully. In my considered view,
criticism of art may be there. Rather, there are many other more appropriate avenues and fora
for expression of differences of opinion within a civil society. But criminal Justice system
ought not to be invoked as a convenient recourse to ventilate any and all objections to an
artistic work. It should not be used as a mere tool in the hands of unscrupulous masters which
in the process can cause serious violations of the rights of the people especially taking into
consideration the people in the creative fields. Such a pernicious trend represents a growing
intolerance and divisiveness within the society which pose a threat to the democratic fabric of
our nation.
Thus, the practice of tolerance in our multi-religious, multi-cultural nation must be regarded
as a fundamental duty of every citizen and must be actively encouraged and performed if we
are to make our pluralist democracy a living robust.17
118. In this regard, the role of the magistrates and judicial scrutiny in protecting individual
rights and freedoms and promoting constitutional values is not discretionary but obligatory. In
60 Maqbool Fida Husain v. Raj Kumar Pandey

a constitutional democracy wedded to and governed by the rule of law, responsibilities of the
judiciary arouse great expectations.18 Justice Frankfurt once remarked:
It is not a printed finality, but a dynamic process. Its applications to the actualities of
Government is not a mechanical exercise, but a high function of statecraft.
Thus, a magistrate must scrutinise each case in order to prevent vexatious and frivolous cases
from being filed and make sure that it is not used a tool to harass the accused which will
amount to gross abuse of the process of the court. Only in appropriate cases should a private
complaint case proceed further without a prior investigation by the police consequent upon
the direction of the Magistrate Under Section 156(3) of the said Code in the matter.
Especially taking into account the recent amendment to Section 202 of the said Code, a
Magistrate should postpone the issue of process against the accused where the accused is
residing at a place beyond the area in which he exercises jurisdiction. He may postpone the
issue of process against the accused and either enquire himself into the case or direct
investigation to be made by the police or by such other person as he deems fit, for the
purposes of deciding whether or not there is sufficient ground for proceeding Under Section
204 of the Code. He must examine the nature of allegations made in the complaint and the
evidence both oral and documentary in support thereof and may even himself put questions to
the complainant and his witnesses to elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any offence is prima facie committed by all or
any of the accused as enunciated in Pepsi Foods Ltd.'s Case (Supra) and Naganagouda
Veeranagouda Patil & Anr.'s Case (Supra).
119. The general principles laid down of the duties to be performed by the Magistrate before
issuing summons are all the more applicable in matters pertaining to art, cinema, writings etc.
to prevent any unnecessary harassment of persons from the creative fields where liberal
thought processes permeate. We have had the scenario of painters, actors, writers, directors
and theatre personalities being dragged to court on account of a mechanical exercise of
issuance of summons ignoring the pressures created on such persons implicit in the process of
issuance of summons. The result would be that that apart from the harassment element there
would be growing fear and curtailment of the right of the free expression in such creative
persons. This is hardly a desirable or an acceptable state of affairs.
120. In the end, it may be said that education broadens the horizons of the people and means
to acquire knowledge to enhance one's ability to reason and make a sound judgment.
However, when one is instructed to only view things in a certain manner, regardless of truth
and facts, this is actually a form of programming - not education.19 There are very few
people with a gift to think out of the box and seize opportunities20 and therefore such
peoples' thoughts should not be curtailed by the age old moral sanctions of a particular section
in the society having oblique or collateral motives who express their dissent at the every drop
of a hat. The society instead should be engaged in more meaningful activities which would go
to show the importance of education over plain literacy.
121. In view of the aforesaid, the summoning orders and warrants of arrest issued against the
petitioner in the complaint cases are quashed and the revision petitions filed against them are
allowed leaving the parties to bear their own costs.
Maqbool Fida Husain v. Raj Kumar Pandey 61

JURISDICTION
122. During the course of the hearing, the learned Counsel for the parties were even
confronted with a general question as to which court would be considered as a competent
court having the jurisdiction to try the matter particularly when the nature of the case is like
the present one where the impugned painting uploaded on the website, accessible to people
across the globe, was being viewed by different people/complainants across the country who
in turn got offended with such painting and filed their complaints at various places in India,
especially keeping in mind the vexatious and the frivolous complaints which can be filed as
an instrument to harass the accused. In the present case, the petitioner is a celebrated artist
who can afford the costs borne out of such litigation but what about those who are not in a
position to expend that much of an amount and are unnecessarily foisted with such liability
and harassment.
123. Learned ASG accepted and submitted that as such our Criminal Code does not deal with
such jurisdictional aspect directly and submitted that the answer only rested in the power
conferred to the Supreme Court of India under Section 406 of the said Code which procedure
has been adopted in the present case and reads as under:
406. Power of Supreme Court to transfer cases and appeals. (1) Whenever it is made to appear
to the Supreme Court that an order under this section is expedient for the ends of justice, it
may direct that any particular case or appeal be transferred from High Court to another High
Court or from a Criminal Court subordinate to one High Court to another Criminal Court of
equal or superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application of the Attorney
General of India or of a partly interested, and every such application shall be made by motion,
which shall, except when the applicant is the Attorney-General of India or the Advocate-
General of the State, be supported by affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred by this section is
dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or
vexatious, order the applicant to pay by way of compensation to any person who has opposed
the application such sum not exceeding one thousand rupees as it may consider appropriate in
the circumstances of the case.
124. The sum and substratum of the his submissions was that Chapter XIII of the Criminal
Procedure Code, 1973 governs the law relating to the jurisdiction of courts with respect to
inquiries and trial and under Section 177 of the said Code, every offence shall ordinarily be
inquired into and tried by a court within whose local jurisdiction it was committed. Section
178 provides that when it is uncertain in which of the several local areas an offence was
committed or where an offence is committed partly in one local area and partly in another or
is a continuing one and continues to be committed in more local areas or one or consists of
several acts done in different local areas, in such cases then it may be tried and inquired by a
court having jurisdiction over any of such local areas.
125. Section 179 of the Code reads as follows:
62 Maqbool Fida Husain v. Raj Kumar Pandey

179. Offence friable where act is done or consequence ensues.-When an act is an offence by
reason of anything which has been done and of a consequence which has ensued, the offence
may be inquired into or tried by a Court within whose local jurisdiction such thing has been
done or such consequence has ensued.
126. As per Section 179 of the Code, in case of an act which is an offence because of the
ensuing consequences either the Court where the act was committed or where the
consequences ensued will have jurisdiction. Under the above provision, it is not necessary to
prove that things done must necessarily be an offence, as the conjunction "and" used in this
section suggests that the act contemplated becomes an offence on account of the cumulative
effect of the things done and the consequences ensued. In Ashok v. State of U.P 2005 Cri L.J.
2324 where a leader of a political party made insulting remarks against a particular religious
community in an interview to weekly magazine having all India circulation, the Court held
that the Courts either in the place where interview was given or in the place where
consequences of these interviews ensued, had jurisdiction to try the offence. In S. Bangarappa
v. Ganesh Narayan 1984 Cri L.J. 1618 where defamatory statement made in press conference
were published in the newspaper in the same place and on the next day, in a newspaper in a
different place, it was held that the Court in second place had the jurisdiction to try the
offense.
127. Section 186 of the said Code provides that in cases where two or more courts have taken
cognizance of the same offence then the High Court will resolve the doubt relating the
jurisdiction of the one of those courts to proceed with the matter in the following manner:
a. where the courts are subordinate to the same High Court, that High Court;
b. where the courts are not subordinate to the same High Court, then the High Court within
whose appellate jurisdiction the proceedings were first commenced.
128. In Kuljit Singh v. CBI 2000 CriLJ 3681, a case was registered based on a report from the
Indian Ambassador in Greece regarding the incident of a high sea tragedy on the night
intervening 24/25 December 1996 in which 170 Indians were drowned. The Central
Government entrusted the matter to CBI for investigation which charge-sheeted the accused
persons on 8.9.1997 and the Chief Metropolitan Magistrate took cognizance of the offence
and issued process against the accused persons. Thereafter, four separate criminal cases were
also registered in District Hoshiarpur, Punjab. The Court in this case applied Section 186
CrPC and held that the CMM, Delhi would alone be competent to inquire into and try the
offences in question.
129. In my considered view, this particular aspect of jurisdiction fettered within the
parameters of scrutiny of Section 202 of the said Code as discussed above derives its
importance especially with the advent of the technological explosion where a person sitting
anywhere across the globe can get access to what ever information he has been looking for
just with a click of a mouse. Therefore, it has become imperative that in this information age,
jurisdiction be more circumscribed so that an artist like in the present case is not made to run
from pillar to post facing proceedings. It was found necessary to at least examine this aspect
in view of the large number of incidents of such complaints which had been brought to light
by press resulting in artists and other creative persons being made to run across the length and
Maqbool Fida Husain v. Raj Kumar Pandey 63

breath of the country to defend themselves against criminal proceedings initiated by

oversensitive or motivated persons including for publicity. This however is not an aspect
where a direction can be issued since it is within the domain of appropriate legislation. The
learned ASG while assisting this Court fairly stated that he would advice the Government to
take steps by way of appropriate legislative amendments as may be proper keeping in mind
the balancing of interest between the person aggrieved and the accused so as to prevent
harassment of artists, sculptors, authors, filmmakers etc. in different creative fields. I say
nothing more but hope that this aspect would get the attention it deserves and the legislature
in its wisdom would examine the feasibility of possible changes in law.
Epilogue
130. A liberal tolerance of a different point of view causes no damage. It means only a greater
self restraint. Diversity in expression of views whether in writings, paintings or visual media
encourages debate. A debate should never be shut out. 'I am right' does not necessarily imply
'You are wrong'. Our culture breeds tolerance- both in thought and in actions. I have penned
down this judgment with this favorent hope that it is a prologue to a broader thinking and
greater tolerance for the creative field. A painter at 90 deserves to be in his home - painting
his canvass.

*****
 Super Cassetes Industries Ltd. v. Myspace Inc.
IA No.15781/2008 & IA No. 3085/2009 in CS (OS) No. 2682/2008(Del) decided on
29/07/2011
MANMOHAN SINGH, J. -
2. The Plaintiff has filed the instant suit for restraining infringement of copyright, damages
etc. The plaintiff claims to be the owner of the copyright in the repertoire of songs,
cinematograph films, sound recordings etc. The plaintiff claims to have over 20000 Hindi
Non film songs and around 50000 songs in regional languages.
3. The plaintiff further states that the business of the plaintiff which is film producing, music
distribution etc is largely dependant upon the exploitation of its copyright. The said copyright
exploitation enables the plaintiff to sustain its creative activities thereby giving opportunities
to many talents including composers, artists, singers, etc. The plaintiff states that the
monetary gains arising from copyright exploitation further empowers it with financial
strength to carry on its business of film making. The infringements of such works of the
plaintiff, thus, causes royalty losses to the plaintiff and are responsible for the loss in the
business of the plaintiff.
4. The plaintiff claims that the copyright exploitation of the works is done by the licensing
system whereby the plaintiff gives public performance licences to the parties who in turn give
the plaintiff the necessary royalty. The plaintiff has filed the catalogue in which the plaintiff
has claimed copyright and also filed the documents to the effect of showing its licencing
scheme.
5. The defendant No. 1 is stated to be a social networking and entertainment website which
offers a variety of entertainment applications including sharing, viewing of music, images,
cinematograph works having its base in the United States of America. The defendant No. 2 is
the owner of the defendant No. 1 which is stated to be a division of News Corporation, Fox
Interactive media which is offering, border free online network that caters to consumers by
giving them platform or tools.
6. As per the plaintiff, the defendant No.1 describes the website as a place for friends and
projects its website as a place to upload pictures and videos. The said website myspace.com
provides country specific content and is one of the most popular social networking and
content sharing website in the world. The plaintiff contends that the defendants basic point
of attraction in running this website is to make available the multimedia content including
songs, pictures, clips which can be seen and shared by the user over the internet space. The
said website of defendant No. 1 not only includes recently released infringing material but
also the material which has not yet been released or is authorized for broadcast through the
authorized distribution channels.
7. The features of the website are being described as that the user or visitor need not subscribe
to the website in order to enable him to search and view the video on the same. But for the
purposes of uploading a video on to the website, the user is required to subscribe and create a
user profile. It is also pointed out in the plaint that when a user in India visits the said website
Super Cassetes Industries Ltd. v. Myspace Inc. 65

the said user is immediately forwarded to India centric version of the website namely
in.myspace.com which is catering to the Indian community.
8. The plaintiff states that the website of the defendants contains the additional features and
instructions which encourages the users and enables them to learn how to share videos. These
additional functions create additional unauthorized copying, electronically store, transmit the
content that infringes the rights of the others including the plaintiff.
9. The website of the defendants is stated to also generate revenue by offering of this illegal
content/ infringing works. The said revenue is made through the medium of advertisements
being displayed on each webpage. The whole business of the defendant No. 1 is specifically
depends upon authorizing free uploading and then distributing the content through
downloading or streaming content to end users.
10. The complaint of the plaintiff emerges from the kind of business model adopted by the
defendants wherein it states that the songs, cinematograph works including the ones which are
for new movies or upcoming movies distributing which the plaintiff earns its revenue and
completes its cost of film making gets deprived due to illegal dissemination of the songs,
cinematographs works by the defendants on internet whereby the defendants encourages and
authorizes the users to share these contents and the end users are benefitted with the said
songs and films free of charge by in turn distribution by the defendants to the public at large.
11. The plaintiff has also explained the operation of the website of the defendants in the
following manner:
User
MySpace sends the streaming video and Simultaneously, a copy of the chosen video
audio content from MySpaces servers to the and/or sound recording is downloaded from
users computer or other device where it the MySpace website to the users computer.
can be seen and heard.

User clicks on preferred search result.

MySpace provides for users a search and indexing function which allows users to search for
the video/sound recording and provides a list of thumbnails search results in response to the
search.
MySpace makes a copy of the uploaded video or sound recording in its own software format,
and stores it on its own servers.

Subscriber uploads video recording (cinematograph film) or sound recording on MySpace

website using facility provided by MySpace.
The plaintiff has stated that in the year 2007 a non disclosure agreement was signed between
the plaintiff and the defendants and thereafter there were in talks with the defendants whereby
the defendants were called upon to take the licences from the plaintiff. But, the talks broke
down and the defendants rather offered the plaintiff to go for registration of rights
management tool programme by way of email dated January 18, 2008. However, the plaintiff
then gave a legal notice on 20.2.2008 informing the defendants about its rights. The reply to
the notice of the plaintiff by the defendants was issued on 12.3.2008 wherein the defendants
66 Super Cassetes Industries Ltd. v. Myspace Inc.

assumed that the content of the plaintiff copyright has been taken down and also that the same
shall not be made available on the website in future.
13. However, in December 2008, it was realized by the plaintiff that the defendants have
not removed the said infringing material from the website. The said infringing material
despite the assurance of the defendants was still available on the website of the defendants.
The plaintiff has enumerated the infringing material as on December 2008 in the plaint which
can be outlined as under:
(Deleted)
14.Thereafter, the plaintiff filed the present suit feeling dissatisfied with the assurances
of the defendants and sought the interim reliefs from this court to the following terms:
(i)grant an order of permanent injunction restraining the defendants, their
officers,employees, agents, servants and representatives and all others acting on their behalf
and in active concert or participation with them or any of them from reproducing, adapting,
distributing, communicating, transmitting, disseminating or displaying on their website
www.myspace.com, www.in.myspace.com or any sub-domain thereof or otherwise infringing
in any manner the cinematograph films, sound recordings and/or the underlying literary or
musical works in which the plaintiff owns exclusive, valid and subsisting copyright(s);
(ii) grant an order of permanent injunction restraining the defendants, their officers,
employees, agents, servants and representatives and all others acting on their behalf and in
active concert or participation with them or any of them from causing, contributing to,
inducing, enabling, facilitating or participating in the infringement of the cinematograph
films, sound recordings and/or the underlying literary or musical works in which the plaintiff
owns exclusive, valid and subsisting copyright(s) on their website www.myspace.com,
www.in.myspace.com or any sub-domain thereof or otherwise; and
(iii) grant an order of rendition of accounts by the defendants to the plaintiff;
(iv) grant an order requiring the defendants jointly and severally to pay damages as stated
hereinabove to the plaintiff;
(v) grant costs of the instant suit to the plaintiff; and
(vi) pass any other such order(s) in favour of the plaintiff and against the defendants as may
be deemed fit and proper by this Honble Court in the interest of justice and equity.
The said order was challenged before the Honble Division Bench, wherein the Honble
Division Bench passed the following order with the observation that the said order is an
interim measure and will not come in the way of the Learned Single Judge in deciding the
interim applications. The said order of Learned Division Bench is reproduced hereinafter:
In our view the prayer in the respondents plaint is general in nature. It does not refer to
specific titles in respect of which infringement has taken place. The catalogue when printed
out gives the name and title of songs and films in which the Plaintiff claims copyright. The
plaint does not state that all of the songs/films have been uploaded on the appellants web-
site. However, the scope and nature of the plaint is left to be determined in the suit. In light of
this fact, we are of the view that as and when the respondent provides details of its songs and
films which have been uploaded on the web-site of the appellant, the appellant shall
immediately take remedial measures to remove the same from its website not later than one
week from the date of such communication. In our view, if such requisitions of the respondent
are complied with within a week by the appellant, it would constitute sufficient protection of
Super Cassetes Industries Ltd. v. Myspace Inc. 67

the respondents rights as an interim measure, and would demonstrate the endeavour of the
appellant to comply with the Order dated 19th December, 2008. We, however, make it clear
that nothing said in this order would come in the way of the decision of the learned Single
Judge.
17. The defendants have filed its written statement and replied to the application seeking
interim injunction. The defendants have also filed an application under Order 39 Rule 4
seeking modification of the order passed on 19.12.2008. The defendants have also amended
the written statement and in the amended written statement they have raised the following
defences :
a) This court does not have territorial jurisdiction to entertain and try the present
proceedings on the grounds:
The defendant No.1 is a foreign national and is carrying on business outside the
jurisdiction of this court in US.
No part of cause of action has occurred with in the territorial jurisdiction of this court.
The defendant No.1 is not amenable personally to jurisdiction of this court and
therefore cannot be compelled to be under the jurisdiction of this court. The website
of defendants cannot close the jurisdiction to this court as it does not pass the tests
laid down in the case of Banyan Tree Vs. A. Murali Krishna Reddy & Anr, 2010
(42) PTC 361 (Del). The exercise of jurisdiction by this court would mean that the
court is giving extraterritorial effect.
b) That the suit is not maintainable as the prayers made in the suit are non specific and if
granted it will impose impossible burden upon the defendant No. 1. The plaintiff has
failed to specify in respect of which works, it is seeking injunction order and thus the
suit is not maintainable.
c) The prayers made in the suit are open ended and the blanket injunction of the kind
cannot be granted by the court. No qua timet action is maintainable in suit for
copyright infringements
d) The plaintiff has made certain misrepresentations about the facts which according to
the defendants were not mentioned in the legal notice in the year 2008 and the
defendants have clarified all the aspect work wise.
e) The acts of defendants are those of intermediatory providing free of cost platform to
the users without any actual or direct knowledge of the content being uploaded and
has no role in selection of the content so uploaded. The defendants have no control
over the said content being uploaded as the portal of the defendants is such where it
cannot exercise any such control.
f) The acts of the defendants are those of intermediatory and are protected under the
provisions of Section 79 of Information Technology Act, 2000. The said provision
will act as safe harbor provisions of US Digital Millennium Copyright Act
(DMCA) whereby the liability of the defendants shall be exempted by operation of
Section 79 of IT Act, 2000.
g) The agreements or the assignments which are placed on record by the plaintiff are
defective. The said agreement reveals that the rights of the movies vest with the
producers and they have retained the said rights including internet rights. Thus, the
rights which are asserted by the plaintiff actually do not belong to the plaintiff.
68 Super Cassetes Industries Ltd. v. Myspace Inc.

h) The defendants only provides a means for file sharing where the acts which are
performed may or may not be infringing and thus mere providing of means is no
infringement under the eyes of the law.
i) The acts of the defendants are protected under the provisions of Digital Millennium
Copyright Act (DMCA) of United States.
j) The defendants have provided the term of use agreement with users which reads as
under:
8. Content / Activity prohibited. The following are examples of the kind of Content that is
illegal or prohibited to post on or through the MySpace Services. MySpace reserves the right
to investigate and take appropriate legal action against anyone who, in MySpaces sole
discretion, violates this provision, including without limitation, removing the offending
content from the MySpace Services and terminating the Membership of such violators.
Prohibited Content includes, but is not limited to Content that, in the sole discretion of
MySpace:
8.8. constitutes or promotes an illegal or unauthorized copy of another persons copyrighted
work, such as providing pirated computer programs or links to them, providing information to
circumvent manufacturer-installed copy-protect devices, or providing pirated music or links
to pirated music files.
8.16 Violates the privacy rights, publicity rights, copyrights, trademark rights, contract rights
or any other rights of any person
Thus, the defendants themselves require their users to respect the copyright of the others and
have all intention to remove the infringing content whatsoever from its website.
k) The defendants do not derive the monetary gains against the advertisement in the user
generated content. The advertisements may exist on the same page as on User
Generated Content but they are not really against the user generated content but
against the licensed content.

l) The defendant No. 1 acts as merely a licensee of the user wherein it takes a limited
license from the user to add, delete or modify the content so that the same is befitting
to its website to make it viewable. But the said defendant does not have any other
license to sell those works or make it public outside its services.
Vide clause 6.1 of the User Agreement, the said defendant binds its users to grant it a limited
license to use, modify, delete from,add to, publicly perform, publicly display,
reproduce and distribute such UGC solely for the purposes of the website.

The said clause reads as under:

6.1 MySpace does not claim any ownership rights in the text, files, images, photos, video,
sounds, musical works, works of authorship, applications, or any other materials
(collectively, Content) that you post on or through the MySpace Services. After posting
your Content to the MySpace Services, you continue to retain any such rights that you may
have in your Content, subject to the limited license herein. By displaying or publishing
(posting) any Content on or through the MySpace Services, you hereby grant to
MySpace a limited license to use, modify, delete from, add to, publicly perform, publicly
display, reproduce, and distribute such Content solely on or through the MySpace
Super Cassetes Industries Ltd. v. Myspace Inc. 69

Services, including without limitation distributing part or all of the MySpace Website in
any media formats and through any media channels, except Content marked private
will not be distributed outside the MySpace Website. This limited license does not grant
MySpace the right to sell or otherwise distribute your Content outside of the MySpace
Services. After you remove your Content from the MySpace Website we will cease
distribution as soon as practicable, and at such time when distribution ceases, the license will
terminate. If after we have distributed your Content outside the MySpace Website you change
the Contents privacy setting to private, we will cease distribution of such private
Content outside the MySpace Website as soon as practicable after you make the change.
m) The uploaded content can be identified only by way of URL (Uniform Resource
locator) as an address and the defendants cannot thus segregate the infringing or non
infringing works.
n) The defendants have installed a notice and take down procedure in compliance of
Digital Millennium Copyright Act (DMCA) of US same as earlier one wherein, any
proprietor who has a reason to believe that the copyrighted content has been posted on the
website, can issue notice and ask to take down the request and the defendants will
immediately take the corrective measures to take down and remove the said content.
o) The defendants have also provided three safeguards on its own:
The Hash Block Filter
Take Down stay Down
Rights management tool
The Hash Block filters prevents the deleted content from being reposted by taking finger print
of the content.
The Take Down stay down contents also prevents the repetitive reposting of the file
containing identical content. Thus, the said filter is also a useful identifier for preventing
repetitive infringement.
The third tool has been explained by the defendants in detail which is as under:
The most powerful filtering tool that defendant No.1 makes available to copyright owners is
the free RMT Copyright Filter. The defendant No.1 allows any copyright owner to register for
and use this tool at no charge subject to a single registration agreement. A copy of the
standard RMT Registration Agreement applicable in this behalf has been filed along with the
list of documents. To take advantage of the RMT, all that the copyright owner needs to do is,
register with the defendant No.1 and then create fingerprints of its audio or audio visual
content (using the free software that the said defendant makes available through its filtering
vendor called Audible Magic). The copyright owner submits the fingerprints to the
defendants filtering vendor with associated business rules, e.g., the copyright owner can
decide to block all of its content or rather allow users to post certain pieces of content that it is
trying to promote. Thereafter, if the copyright owner instructs that all of its content should be
blocked, the defendant No.1s RMT Copyright Filter will be set to block all content uploaded
by users that matches the copyright owners content. This means if any piece of content is
uploaded that matches any 30 seconds of the copyright owners content, it would be blocked
(the 30 seconds of matched content is the technical limit for the filtering technology). If the
copyright owner, therefore, submits fingerprints to the RMT Copyright Filter, it can avail
themselves of extremely broad copyright protection on its website. Upon signing up for the
70 Super Cassetes Industries Ltd. v. Myspace Inc.

RMT (as well as signing Audible Magics own short agreement regarding the use of its
signature generation software), the content owner need not ever part with its content to
receive the benefits of filtering. Rather, the content owner need only itself create the
fingerprints of its content, by using Audible Magics free software, and then send such
fingerprints to Audible Magic with appropriate usage instructions (i.e., block or allow).
The defendant No.1 also periodically runs the filter retroactively over its website, again at its
own cost, over all the content that has already been posted on its website. Accordingly, if
content was uploaded by a user before a copyright owner was able to add it to Audible
Magics reference database of fingerprints, the filter will catch such previously uploaded
content and remove it. Thus, as per the defendants all these measures are nothing but
safeguards to prevent infringement and sufficiently demonstrates their bonafides and non
involvement in the infringing acts.
p) The defendants have launched their India operations in December 2007 and
immediately informed all the music companies about its right management tool so that the
infringement can be minimized and the plaintiff cannot blame the defendants for its own
reluctance to subscribe to such facility and for the resulting infringements due to its non
subscription.
q) That the interim arrangement recorded in the Honble Division Benchs Order dated
March 6, 2009 embraces the notice and take down protocol set forth as a legal norm in the
laws across the world including the laws of India to deal with the issues of on-line liability.
Consequently, the said interim order represents the only feasible answer to the grievance of
the Plaintiff, if found to be well founded in law and fact.
r) The Plaintiff has made misrepresentation of facts that the defendants do not have any
control over the content posted on their website by the users. Further, the defendants do not
target Indian customers. The advertisements that may appear along with the thumbnails are a
result of an automated process carried out by a search engine, which is term centric and not
content centric. The applications came up for hearing from time to time and clarifications
were also sought from the parties after reserving the matter for orders.

23. I have gone through the plaint, written statement and records of the proceedings and
also noted the submissions of the parties. However, before commenting upon the submissions
of the parties, I deem it fit to first discuss the law on the subject.

Law Relating To Copyright And Its Relation With Internet Computing

24. Copyright is a bundle of rights which is meant to encourage creativity. The said rights are
negative rights in as much as the same are prohibiting others from using the copyrighted
works. The traditional concept of the copyright has undergone a drastic change as
traditionally, the law relating to copyright was meant to encourage the original literary, books
and also to help the poor authors. But, due to advent of the new technologies, its scope has
extended manifolds. Now, the modern law of copyright encompasses musical works,
cinematograph works, computer programs, performers rights, broadcasting rights.

24.1 The copyright has now become part of the business of the big organization more
specifically in film industry where the major chunk of money is reaped out of the royalties
Super Cassetes Industries Ltd. v. Myspace Inc. 71

arising out of the licensing and assignment of copyrights in the respective works. Rather, it
would not be out of place to state that the royalties have become the backbone of the film
making machinery. The companies like the plaintiff and other musical companies on one side
earning royalities and thereon investing the same funds in making the films.

24.2 One more stage of complexity has been attained by the copyright law due to emergence
of the virtual world of internet. The internet computing has also brought many changes in our
lives in stages. The era in 1990s saw the beginning of the computing internet, wherein, the
TCPIP internet and windows interface which was so user friendly due to which we became
conversant with the emails and network navigation. Thereafter, in the year 2000 and later the
type of computing changed and it has been refined and set the benchmarks, there has been a
sudden rise in the markets of software be it accounting, designing, photo printing, office using
like notepads, gaming, chatting, user to user protocol, music sharing programs like napster,
kazaa etc.. All these software development have further taught us that there is much more
than emails and typing on the computer and internet is very vast by which one can navigate in
several spheres of subjects and can share the data with other users.

24.3 The third and more advance stage of computing which we are witnessing at this stage is
the one wherein the level of internet computing is established and there is a tendency to
conduct business online. There is a large segment of business models which are growing over
the internet wherein the users are participating actively and thereon the companies are earning
solely on the basis of the internet services by facilitating users to share their contents which
are attractive (which includes pictures, motion pictures, films, songs, graphics, trailors,
private communications amongst the eminent personalities, scam disclosures etc) so as to
make it common to all and enabling them to view it easily by sitting at home. The more
prominent examples of this advance stage is utube, myspace, facebook etc. This is really an
advance stage and there is no hesitation in saying that it is a remarkable development wherein
one can see motion pictures with high quality graphics on internet which includes filming and
other mode of entertainment .

24.4 While facilitating the said sharing process over the internet, the companies like the
defendants are gaining business in the nature of advertising, sponsorships, other like
businesses which makes them popular and run their show. This can be said to be one more
way of conducting business which is comparatively new in its field. The problem however
crept in when the content which is a subject matter of sharing on the website operated by the
companies are someone elses copyright or proprietary material and not owned by the person
or the user supplying them. The question then arises, as to whether the said company by
providing the medium of sharing to the users and also gaining commercially alongside the
same can be said to have infringed the copyright of the right holder. This court is faced with
the similar kind of situation wherein the defendants said website operator and the plaintiff is
the right holder and the court is called upon to answer the said question by applying the
copyright law accordingly to this another mode of doing business which has been innovated
by the defendants in the virtual world of internet.
"51. When copyright infringed - Copyright in a work shall be deemed to be infringed -
72 Super Cassetes Industries Ltd. v. Myspace Inc.

(a) When any person, without a licence granted by the owner of the Copyright or the Registrar
of Copyrights under this Act or in contravention of the conditions of a licence so granted or of
any conditions imposed by a competent authority under this Act-
(i) does anything, the exclusive right to do which is by this Act conferred upon the
owner of the copyright, or
(ii) permits for profit any place to be used for the communication of the work to the
public where such communication constitutes an infringement of the copyright in the work,
unless he was not aware and had no reasonable ground for believing that such communication
to the public would be an infringement of copyright, or]
(b) When any person -
(i) makes for sale on hire, or sells or lets for hire, or by way of trade displays or offers
for sale or hire, or
(ii) Distributes either for the purposes of trade or to such an extent as to affect
prejudicially the owner of the copyright, or
(iii) By way of trade exhibits in public, or
(iv) Imports [***] into India, any infringing copies of the work:
[Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work,
for the private and domestic use of the importer.]
Explanation - For the purposes of this section, the reproduction of a literary, dramatic,
musical or artistic work in the form of a cinematograph film shall be deemed to be an
"infringing copy".

26.From the bare reading of the Section 51, it becomes apparent that the infringement is,
doing of any act by a person who is not authorized by the owner, which the owner is
conferred to do under the provisions of the Act or permitting any place for profit for
infringement of the copyright is also an infringement under the Act. The said two
provisions are disjunctive in as much as that there shall be an infringement even if the
acts are done which are of the owner or in the alternative the acts of permitting any place for
profit.

27.At this stage, it becomes relevant also to examine that thewordings of Section 51 (a) (ii)
which provide permitting any place for profit. The use of the words any place would
include common public place or library or any other kind of place. The wordings do not put
any embargo of the kind of the place which is required to be permitted for profit in order to
establish an infringement. But rather the wordings used in the sub section are any place so
as to subsume physical place or place at the internet or webspace. The reference is invited to
the provisions of UK Copyright Act, 1956 which are similar in nature to Indian Copyright Act
in this respect which brings more clarity on this aspect. The said provisions are reproduced
hereinafter:
Section 5 (5) The copyright in a literary, dramatic or musical work is also infringed by any
person who permits a place of public entertainment to be used for a performance in public of
the work, where the performance constitutes an infringement of copyright in the work :
Provided that this sub section shall not apply in a case where the person permitting the place
to be so used -
Super Cassetes Industries Ltd. v. Myspace Inc. 73

a) was not aware, and had no reasonable grounds for suspecting, that the performance
would be an infringement of copyright, or
b) gave the permission gratuitously or for a consideration which was only nominal or (if
more than nominal) did not exceed reasonable estimate of expenses to be incurred by him in
consequence of the use of the place for the performance.
(6) In this section place of public entertainment includes any premises which are occupied
mainly for other purposes, but are from time to time made available for hire to such persons
as may desire to hire them for purposes of public entertainment
28.I am also comparing the provisions of UK Copyright Act, 1988 (CDPA) which has been
passed in the year 1988 repealing the earlier law. The said provisions are:

Section 25 : Secondary Infringement: permitting use of premises for infringing

performance.

Where the copyright in a literary, dramatic or musical work is infringed by a performance at a

place of public entertainment, any person who gave permission for that place to be used for
the performance is also liable for the infringement unless when he gave permission he
believed on reasonable grounds that the performance would not infringe copyright.
(2) In this section place of public entertainment includes premises which are occupied
mainly for other purposes but are from time to time made available for hire for the purposes
of public entertainment.
Section 26 : Secondary Infringement: provision of apparatus for infringing
performance, etc

(1) Where copyright in a work is infringed by a public performance of the work, or by the
playing or showing of the work in public, by means of apparatus for
(a) playing sound recordings,
(b) showing films, or
(c) receiving visual images or sounds conveyed by electronic means, the following
persons are also liable for the infringement.
A person who supplied the apparatus, or any substantial part of it, is liable for the
infringement if when he supplied the apparatus or part-
a) he knew or had reason to believe that the apparatus was likely to be so used as to
infringe copyright, or
b) in the case of apparatus whose normal use involves a public performance, playing or
showing, he did not believe on reasonable grounds that it would not be so used as to infringe
copyright.
(3) An occupier of premises who gave permission for the apparatus to be brought onto
the premises is liable for the infringement if when he gave permission he knew or had reason
to believe that the apparatus was likely to be so used as to infringe copyright.
(4) A person who supplied a copy of sound recording or film used to infringe copyright is
liable for the infringement if when he supplied it he knew or had reason to believe that what
he supplied, or a copy made directly or indirectly from it, was likely to be so used as to
infringe copyright.
74 Super Cassetes Industries Ltd. v. Myspace Inc.

By comparing the situation as exists in 1956 Act of UK and 1957 Act of India in the
provisions, it becomes amply clear that the wordings used in the Section of UK Act are place
of public entertainment but in Indian Act, the wordings used are any place which reflects
the intention of the legislature which is to provide a provision for permissive infringement
wherein it is not merely a place of public entertainment which is included but any place
wherein the infringement is facilitated would be covered by the provision of the Indian
Copyright Act, 1957.
30. The situation becomes more clear as one further sees carefully the later enactment of same
nature in the UK CDPA Act of 1988 which provides two kinds of infringements separately
which are that the place of public entertainment and infringement caused by use of an
apparatus. This fine distinction which is present in the later Act of UK is not present in the
Indian Act. This would demonstrate that UK legislature was conscious about the kinds of the
infringement which are going to be caused in the light of the development in the technology
and mere provision of facilitating the infringement at public place of entertainment would not
sufficiently cover the protection and the apparatus infringement must be provided separately
under the separate head. Therefore, in the light of the same, the provision relating to
providing means by way of apparatus is further introduced in addition to the already existing
provision which relates to infringement relates to place of public entertainment in the 1988
Act.
31. In the sharp contrast, our Indian Act which has been amended number of times i.e. in
1984, 1994, 1999 which although provided for several crucial amendments including
computer programmes as a subject of copyright under the head of literary work but has not
provided any separate infringement by way of an apparatus under the separate head or
separately and the provision relates to the facilitating infringement is the same as it stood in
the 1957 Act. In absence of such amendment in the Indian Act and in view of the loosely
worded provision which is any place, the same can be given a wider connotation so as to
include the place on the internet not confining it to place of entertainment but to extend it to
other places also.
It is now well settled that when there are new technological inventions or change in
circumstances which was not in contemplation at the time when the statute was enacted, the
said invention or technological advancement may be included in the same enactment if they
are falling within the same genus provided in the existing enactment.
33. The reference in this respect is invited to the decision of House of Lords in Comdel
Commodities Ltd vs. Siporex Trade SA,
(1990) 2 All ER 552, wherein Lord Bridge has said When a change in social conditions
produces a novel situation which was not in contemplation at the time when a statute is first
enacted, there can be no a priori assumption that the enactment does not apply to the new
circumstances. If the language of the enactment is wide enough to extend to those
circumstances, there is no reason why it should not apply. On the same principles, general
words are construed as to include new inventions and technological advances not known at
the time when the act was passed. The Photograph copy is held to be a copy under the
Engraving Copyright Act, 1734 in the case of Gambart v. Ball (1863) 32 LJCP 166.
Similarly telephone was not invented in 1869, even then the telephone was held to be a
telegraph under the provisions of Telegraphs Act 1863 in the case of A.G. vs. Edison
Super Cassetes Industries Ltd. v. Myspace Inc. 75

Telephone Co of London (1880) 6 QBD 244 referred in The Senior Electric Inspector vs.
Laxminarayan Chopra & Ors., AIR 1962 SC 159.

More Recently Honble Supreme Court in State of Maharashtra vs. Praful B Desai (Dr.),
(2003) 4 SCC 601, has accepted the evidence by way of video conferencing as a valid one
where the person being tried will satisfy the requirement of Section 273 of Code of Criminal
Procedure, 1973 when the technique of video conferencing was not even developed.

35. In view of the same and also the fact that the provision provides for permitting
any place which itself is loosely worded and is unfettered by any qualification, the said
words any place have to be construed widely so as to include the place at the webspace or
internet in order to give effect to the provision to be operative in cases of newer kind of the
infringements being caused at the webspace. This is more so, in the absence of the specific
provision relating to infringement by way of apparatus, the law in that situation cannot remain
static witnessing the infringements which can be otherwise covered under the Act. The
provisions which can conveniently cover the said acts must also be interpreted to include
those new acts to make the provision workable for the newer kinds of infringement to the
extent the wordings permit so. Therefore, the wordings any place under Section (a) (ii) of
the Act includes the place at the webspace in order to cover the infringements or the wrongs
caused at the webspace.

The proposition which emerges from the above discussion is that there is an express provision
under the Act which prohibits a person from permitting any place including webspace for
profit unless the said person is having no knowledge or reason to believe that the
communication of the work is infringing in nature.
38. There is, however, another way of approaching the similar kind of proposition which
is popularly known as infringement by way of authorization. This is done by interpreting
Section 51 (a) (i) read with Section 14 of the Act. The said Sections are reproduced
hereinafter:

51. When copyright infringed - Copyright in a work shall be deemed to be infringed -

(a) When any person, without a licence granted by the owner of the Copyright or the Registrar
of Copyrights under this Act or in contravention of the conditions of a licence so granted or of
any conditions imposed by a competent authority under this Act-

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of
the copyright, or..

"14. Meaning of copyright- For the purposes of this Act, "copyright" means the exclusive
right subject to the provisions of this Act, to do or authorise the doing of any of the following
acts in respect of a work or any substantial part thereof, namely :-
76 Super Cassetes Industries Ltd. v. Myspace Inc.

(a) In the case of a literary, dramatic or musical work not being a computer programme,-

By reading these provisions together, it can be seen doing the acts of owner of copyright
without permission or licence amounts to infringement. The acts of owner are defined under
Section 14 which include doing or authorize doing the acts. Thus, by virtue of conjoint
reading one can say that the infringement of copyright can also be in the cases where there are
acts of authorizing the infringement by anyone without permission.

40. The said concept of authorizing the infringement has been succinctly discussed by
Copinger & Skone James on Copyright (Fourteenth Edition by Kevin Garnett M.A., Jonathan
R. James, MA. LLB, Gillian Davies, Ph.D., 1999 Edition, London, Sweet & Maxwell), who is
an authority on the subject in the following words:

7-151 Meaning of authorize, Authorization means the grant or purported grant which may
be express or implied, of the right to do the act complained of, whether the intention is that
the grantee should do the act on his own account or only on account of the grantor. An
expression which has been often used as equivalent to the word authorize is sanction,
approve, or countenance but this must be treated with caution particularly in so far as the
word countenance is equivalent to the word condone. Thus, in general an authorization
can only come from someone having or purporting to have authority and an act is not
authorized by someone who merely enables or possibly assists or even encourages another to
do that act, but does not purport to have any authority which he can grant to justify the doing
of the act.

41. It is noteworthy to mention that the said concept of authorizing the infringement
although looks akin to Section 51 (a) (ii) of the Act but the said authorization does not
coincide with the permitting the place for profit. The concept of authorizing the infringement
is rather bigger and cannot be equated with merely facilitating the place for profit which is the
express provision of the law, which may be said to be one its facets. The act of authorizing is
something more than merely providing means with knowledge and require further active
participation of the person than that of the permitting the place for infringement. This is due
to the reason that the grant of means to an infringement is different than the granting the right
to do the act of infringement.

41.1 Sometimes the infringement is not done directly but is done indirectly by the authority of
some person for instance where a person handovers a pirated CD to a friend and also asks him
to make number of copies and sell them to the public on behalf of the former. In that
situation, the former is authorizing infringement which he is doing through another person.
Both are parties to an infringement due to their direct or active involvement. In this example,
the person retains his control where he can say to his friend to do or not to do the same on his
behalf. Besides that, the former person also has knowledge about the pirated nature of the CD
which is also relevant. Thus, it is an authorization and it is not merely providing a means for
Super Cassetes Industries Ltd. v. Myspace Inc. 77

infringement but rather more than the same which is doing the infringement along with the co
infringer or under the authority of a person.

41.2 The act of authorizing infringement is premised on the concept of joint tort feasors
wherein the person is held liable for commission of equal wrong when there is apparent clear
establishment of his involvement in the wrong along with the other person committing the
same. The active participation, inducement, approval or countenance, are thus necessary
ingredients of authorization may not be sine qua non for the establishment of permission of
place for profit. The knowledge of the fact that the acts are going to be infringing is again
different from the active participation or any kind of inducement.

41.3 The knowledge is the starting point for authorization which is going to be established
unless the clear active participation or reasonable degree of control is proved besides
knowledge. But on the other hand the same may not be true with permitting the place for
profit wherein there is only knowledge which is sufficient and the further state of affairs may
remain irrelevant. Therefore, the onus of proof for establishing the authorization is more
onerous than that of the establishing facilitation for profit.

41.4 This distinction between the two concepts is necessary in order to better comprehend the
subject which will make the evaluation of arguments raised by the parties easier.

Now, I shall deal with the contentions of the parties raised by them relating to the
authorization and the applicability of Section 51 (a) (ii) of the Act.
43. It is the contention of learned counsel for the plaintiff that the acts of providing the
space over the internet and thereafter continuously doing the same ever after coming to know
about the plaintiffs proprietary interests amounts to authorization as the defendants are aware
that the said space is going to be used for infringement purposes. As per the learned counsel,
the said acts become authorization as the defendants retain the control and power to further
distribute or communicate the work to the public. The said thing is done by the defendants
with knowledge coupled with that of its own participation wherein it is offering the works of
the plaintiff to the public at large by enlisting the works of the defendants in their search
engine in such a way that when someone types the name of a song or a movie, the same is
easily available on the search results. Mr. Sibal has narrated the factors by which the
defendants are authorizing the infringement which can be enumerated as under:
a) The defendants provide a search facility which enables anyone who visits its website
to locate audio-visual or audio files amongst those uploaded by other users, which files are
copied by the defendants and stored on their servers.
b) The defendants prescribe the terms of use which must necessarily be subscribed to by
a User for becoming a defendants User.
c) A person has to necessarily be a registered User with the defendant/MySpace to use
the uploading facility (which ultimately leads to infringement).
d) MySpace /defendant can without anybodys approval reject, refuse to post or delete
any content for any or no reason uploaded on its website.
78 Super Cassetes Industries Ltd. v. Myspace Inc.

e) Defendants take license from the User for the content uploaded and can modify,
delete from and add to the said content.
All these factors as per Mr. Sibal are evidence of the degree of control which the defendants
can exercise and thus, the authorization gets established once the defendants are found to be
controlling the infringing activities and has its say in preventing them or controlling them.
Mr. Sibal has also made submissions that the said acts amounts to infringement as per the
provision of Section 51 (a) (ii) of the Act due to aforesaid reasons.
45. On the other hand, Mr. Kumar resisted the same by stating that neither the said acts
are authorization and nor the same are falling under Section 51 (a) (ii) due to the following
reasons:
a) The defendants are having no control over the works which are uploaded on the
websites everyday and thus they are no privy to any such works which are infringing in
nature.
b) The defendants are not having any knowledge about which are the works which are
infringing or non infringing. It is only subsequent to uploading and thereafter when the
proprietor brings it to their notice, it becomes clear that the works are infringing in nature.
Therefore, once it is without knowledge coupled by no control over the works, the defendants
cannot be held liable for infringement.
c) The defendants have cited the safe harbor provisions of US law and lot of cases
decided under English law (which has been commented on later in the judgment as at this
stage, the issue of infringement is decided).
d) It is well established, that merely providing means for doing the acts which may be
infringing, the person cannot be held liable for authorization and therefore, the defendants in
the absence of clear establishment of its role in doing or promoting the infringement cannot
be held liable for infringement.
e) There are several measures or safeguards like notice and turn down and many more
are already undertaken by the defendants and therefore, the defendants are not infringers.
46. I have examined the submissions of the parties carefully and have gone through the plaint,
written statement and documents filed by the parties and after doing so, I am of the opinion
that the acts of defendants of providing the space on internet or webspace for profit are prima
facie infringing in nature. The reasons for my prima facie observations can be discussed as
follows:
a) Firstly, it would be wise to reiterate three proposition which I have already discussed
earlier.
The provision of Section 51 (a) (i) and Section 51 (a) (ii) of the Act are disjunctive in
nature in as much as the word or between the two makes it clear that even on satisfaction of
one provision, there would be an infringement of copyright. The infringement by way of
authorization would fall within Section 51 (a) (1) read with Section 14 of the Act as against
the act of permitting the place for profit which is separately provided under Section 51(a) (ii)
of the Act. There is a distinction between the concept of authorization as well as the concept
of permitting the place for profit and the essential ingredients for establishing the same are
also different.
Keeping these three propositions in mind, I have no hesitation to state that the acts of the
defendants whereby they are offering the space over the internet, getting the works uploaded
Super Cassetes Industries Ltd. v. Myspace Inc. 79

through users, thereafter saving in their own database with the limited licence to add, amend,
or delete the content and thereafter communicating the said work to the public by providing
some advertisements alongside the work or in the alternative gaining advertisements or
sponsorships on the said basis thereafter would prima facie tantamounts to permitting the
place for profit for infringement as envisaged under Section 51 (a) (ii) of the Act.
b) The said acts of the defendants are certainly falling within the realm of an
infringement under Section 51(a) (ii) of the Act. This is due to the reason that the defendants
are permitting the place which is place at webspace to the users at large. The said place is not
for the profit of the users only but also for the private profits or gains of the defendants. The
defendants do not dispute that they are running the advertisement but their stand is that some
advertisements are automatically appearing due to the search engines or key words which are
typed by the users. The defendants although state that they are not advertising anything or
earning anything due to the same. But, I am afraid that it is not the truth, the advertisements
which are attached to movie clips or are displayed prior to the starting of the clip or after the
movie clip is ended, are not the user provided or automatically emerging ones but are
sponsored. There are third kind of advertisements which are displayed till the time work is
being downloaded on the website and is ready to play, the said advertisements keep the user
busy uptil the user reaches the definite target which is intended movie song or movie clips.
All this happens only when the defendants permit this to happen and to the advantage of the
defendants. Thus, the defendants are certainly earning profits or gains and not doing anything
mistakenly or bonafidely without notice as contended by them. There is certainly complete
element of commerce attached to it to increase the bandwidth of the users/customers and
sponsorship and/or adds. Thus, the defendants are permitting the place for profit.
47. Now, the submission of the defendants that their acts are without knowledge or no
reasonable belief of infringement are, therefore, would not fall within the Section 51 (a) (ii)
but would be protected by the later part of the Section is also meritless. It is also not difficult
now to answer the question of knowledge or reasonable belief which can be immediately
discerned due to following factual situations:
Firstly, the defendants are themselves providing the safeguards in the event of the
infringing activities being carried upon their website which means that the defendants have
atleast reasonable apprehension or belief that the acts which are being carried on the website
may infringe someone elses copyright including the plaintiff.
The defendants could immediately turn and say that the said provisions are made to
prevent the infringement as per the international laws more specifically Digital Millennium
Copyright Act (DMCA) of US. However, the said fact does not preclude this court from
drawing any inference as to the reasonable belief of the defendants that the activities upon
their website are infringing in nature. Perhaps the legislature in US is more conscious of these
frequent infringements on the internet and that is the reason it has enacted the special Act for
these purposes for providing curative measures and thereby giving such acts a legitimate
effect by balancing the two interests one of internet infringer and another of the proprietor by
providing that the post infringement curative measures as sufficient safeguards for the
purposes of infringement and protecting any such infringement liability . But the same may
not be legal in the Indian scenario absenting such situation. Therefore, this Court can infer the
reasonable amount of knowledge by the defendants about the infringing nature of the acts
80 Super Cassetes Industries Ltd. v. Myspace Inc.

which are going to be carried on the defendants website when the defendants on their own
provide with these measures. Certainly, there is a reasonable belief by the defendants that the
acts are infringing in nature.
Secondly, the reasonable belief or knowledge specifically to that of the plaintiff
works is also present in this case. This is due to the reason that the plaintiff has already
notified its company name and lists of the titles owned by it. The defendants have also been
dealing with the plaintiff prior to the institution of the suit. Thus, the defendants cannot be
said to be totally oblivious to the fact that the Bollywood songs which are going to be
uploaded on their website may not belong to the plaintiff. Rather the defendants on its own
states that while launching India centric operations, the defendants have informed all the
music companies about their tools. Furthermore, when the defendants have been notified time
and again by the plaintiff about updated works and the defendants are hard pressed to remove
those contents. In these circumstances, the defendants stand at this stage that they are totally
unaware of the situation is not correct. There is complete knowledge to the defendants of the
infringing nature of acts which are going to be carried on their website and rather it would not
be out of place to say that the defendants are also aware that the plaintiffs works are
available on the website which are infringing in nature.
Thirdly, the knowledge and reasonable belief for infringement to the defendants can
be seen when one examines the mechanism of working of the defendants. The defendants take
the limited licence to amend or delete or modify the works suitably from the user. This itself
makes it evident that before uploading on the website or making it available on the website,
the works in question go into the servers or the computers of the defendants where the
programmers modify the said contents or amend the said contents suitably. Rather the said
modification also goes to the extent of adding advertisements prior to the clips or after the
clips embellishing them, adding logos of the companies.
All this is nothing but knowledge about the content what the defendants are displaying,
showing, exhibiting. Thus, the defendants stand that they are totally unaware at the time of
uploading what is going on and they should be protected being unconnected with anyone is
also ex-facie bad. On the contrary at the time of uploading and till the time the said work is
made available to the public on search engine form by the defendants, there are sufficient
steps including modification (which has a major role) wherein the knowledge of the
defendants can be seen.
Fourthly, the knowledge and reasonable belief of infringement is also apparent on
behalf of the defendants when the defendants indulge into India centric operation as
contended by the plaintiff. It is also stated that the defendants have whole office dedicated to
Indian works which caters the Indian consumers. The modifications of the works, India
centric offices or operations, adding advertisements of the same language, seeking licences
from users to modify or alter the works, informing the major copyright owners about its tool
anticipating actions by them or preventing need for licences, all these makes the knowledge
more apparent on the face of the record.
Thus, clearly due to complete satisfaction of the provision of Section 51 (a) (ii), the acts of
defendants are prima facie infringing in nature, which are violative of Section 51 (a) (ii) of the
Act.
Super Cassetes Industries Ltd. v. Myspace Inc. 81

48. So far as the act of authorization is concerned, The said act requires sanction, approval or
countenance which are the wordings used in English Judgments which are more than the mere
act of knowledge. I have already distinguished the authorization which would fall within
Section 51 (a) (i) from that Section 51 (a) (ii) of the Act which expressly provides knowledge
or reasonable belief as only tests for satisfaction. I shall now examine and test the acts of
defendants on the principles of authorization.
The principles for satisfaction of authorization are laid down in various cases which are cited
at bar. However, for the sake of brevity the same can be culled out as follows:
The authorization requires countenance or sanction or approval from that of the person
authorizing the said act. This means that the said action of sanction or approval requires more
to be shown than mere knowledge ( Kindly see C.B.S. Inc. & C.B.S. United Kingdom v.
Ames Records & Tapes Limited; (1981) RPC 407 (decided on 13th February, 1981) where
court used sanction and approval as the test).
2. The authorization has to be targeted to the identified persons so that the clear case is
made out. (Although Copinger(Supra) differs from this view).
3. The authorization requires that the person must have the authority to permit the
infringement in as much as the person giving the authorization must retain a control over the
subject matter in order to call it as authorization. (Kindly see C.B.S. Songs Limited & Others
vs. Amstrad Consumer Electronics Plc. & Another (House of Lords), (1988) RPC 567)
4. Merely providing means for infringement does not establish control and therefore the
person cannot be said to have approved or countenanced such act. Broadly English Courts
have tested all the cases on these very principles while attributing the liability over the
infringers or in alternative rejecting the case of infringement. Mostly, in cases relating to
newer means like tape recorder or in the cases of jukebox which are mere means for
providing recordings of songs, the courts in England or common law have rejected the claims
of infringement on the ground that these are merely new means for recording and nothing
more unless the participation of providing the means must be shown towards the
infringement. Let me now examine the acts of the defendants on these principles.
50. It was the contention of the defendants that no clear establishment of their
involvement is made out as the portal of the defendants is such wherein every day there is
much of data which is being uploaded and thus the defendants could not be held liable for
authorization.
Further, it has been said on behalf of the defendants that the defendants are
themselves cautious by putting notices on the internet by calling upon to users not to upload
infringing contents. It is also said that the defendants are providing notice and turn down
features which shows that the said acts are not emanating from the defendants. It is not the
defendants who are promoting those acts.
51. I have gone through the rival submissions of the parties. While testing the acts of the
defendants on the threshold principles available under the common law, the doubts can be
expressed at the prima facie stage whether the plaintiff has completely discharged its onus of
proving as to whether the acts of communicating the musical works, sound recordings are
actuated by the countenance, approval or not. Mr. Sibal has taken pains to inform this court
that there is an element of control which has been exercised by the defendants. However, I am
not fully satisfied whether the said factors enumerated by the Mr. Sibal would sufficiently
82 Super Cassetes Industries Ltd. v. Myspace Inc.

establish at this prima facie stage such degree of control by the defendants which can also be
called as approval or countenance or sanctioning. No doubt, I have arrived at the prima facie
view that there is knowledge which is clearly present at this stage wherein the defendants are
aware what they are communicating. But the act of approval or sanction requires, the
defendants participation, exercise of control besides knowledge which I feel is a question
which can determined only at the time of trial as at this stage it is not clearly emerging from
the documents as to the state of affairs after the knowledge which may be relevant for
establishing the authorization . This is also more so because the approval or sanction is
required to be established particularly towards the present acts of infringement which is
difficult to comment upon at this stage.
In addition to the above, one more thing which needs to be considered is that the defendants
plead that the acts of the defendants are not authorization, to which I have already answered
the same at this stage. However, once the plaintiff informs about the works owned by it to the
defendants, the said defendants thereafter attain knowledge not only of the means to be used
for infringement but also the knowledge about the rights of the plaintiff. The necessary
consequence which follows from the same is that once the defendants are put to notice about
the rights of the plaintiff in relation to the particular works, thereafter the defendants cannot
continue to do the said acts in relation to the works for which the details have been provided
without the permission of the plaintiff. In that event, the defendants after putting to notice
immediately steps into the shoes of the ordinary infringer under Section 51 (a) (i) of the Act
who is aware of the rights of the plaintiff (copyright owner) and then the question of
authorization becomes irrelevant and the acts are to be adjudged from the standpoint of
ordinary infringement.
53. The defendants have already stated in the written statement that the arrangement done
by the Division Bench is the possible solution to this proposition arising in the present case.
The defendants counsel has also stated that he would have no objection if the order passed
by the
Division Bench is continued. Thus, the defendants acts are infringing in violation of Section
51 (a) (i) of the Act once the defendants are put to notice about the plaintiff rights in the
respective works and in the event the defendants do not turn down the same or allow the
repetition to happen.
54. In these circumstances, I am of the view that though the acts of the defendants are prima
facie infringing in view of the satisfaction of provision of Section 51 (a) (ii) of the Act but the
question of the authorization requires further proof of participation which has to be tested at
the time of trial. Nevertheless, the defendants are infringing the plaintiffs work as their acts
are falling within the alternative or disjunctive requirement for infringement under Section 51
(a) (ii) of the Act. Further, the defendants act may become infringing if the defendants do not
turn down or allow the repeated uploads to happen after put to the notice about the plaintiffs
rights in the said works.
Re: Jurisdiction
55. Now I shall deal with other submissions of the parties point wise including the issue
relating to jurisdiction. At the threshold, I would like to state that I have held that this court
Super Cassetes Industries Ltd. v. Myspace Inc. 83

has the jurisdiction and therefore proceeded to decide the aspect of copyright infringement
first. I shall now discuss the reasons for arriving at the conclusion that this Court has
necessary territorial jurisdiction which are as under:
55.1 Firstly, the present case relates to infringement of copyright wherein the remedies are
conferred under the special statute. The said suit for infringement of copyright can be filed
and initiated at the place wherein the plaintiff carries on business, or personally works for
gain etc. This is by virtue of non obstante clause provided under Section 62 (2) of the Act
which reads as under:
62. Jurisdiction of court over matters arising under this Chapter. (1) Every suit or other civil
proceeding arising under this Chapter in respect of the infringement of copyright in any work
or the infringement of any other right conferred by this Act shall be instituted in the district
court having jurisdiction.
(2) For the purpose of sub-section (1), a "district court having jurisdiction" shall
notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any
other law for the time being in force, include a district court within the local limits of whose
jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting
the suit or other proceeding or, where there are more than one such persons, any of them
actually and voluntarily resides or carries on business or personal works for gain."
55.2 By mere reading of the provision of Section 62(2) of the Act, it becomes amply clear that
the suit for infringement can be filed at the forum where the plaintiff resides or carries on
business. The opening words of the provision provides Notwithstanding anything contained
in the code of civil procedure which means that the said provision will operate in addition
to what has be provided in the Code of Civil procedure. Thus, the said provision enables
the suit to be filed at the place of the plaintiff which is the additional ground for attracting the
jurisdiction of the court.
55.3 This question is no longer res integra and put to rest by the Supreme Court while
examining the said provision in the case of ExpharSA & Anr vs Eupharma Laboratories
Ltd. & Anr, (2004) 3 SCC 688 wherein the Honble Court observed.
It is, therefore, clear that the object and reason for the introduction of sub-section (2) of
Section 62 was not to restrict the owners of the copyright to exercise their rights but to
remove any impediment from their doing so. Section 62(2) cannot be read as limiting the
jurisdiction of the District Court only to cases where the person instituting the suit or other
proceeding, or where there are more than one such persons, any of them actually and
voluntarily resides or carries on business or presently works for gain. It prescribes an
additional ground for attracting the jurisdiction of a Court over and above the 'normal'
grounds as laid down in Section 20 of the Code.
Therefore, the plaintiff while it has initiated the said suit at the forum where it is carrying on
business has rightly initiated the suit in compliance of the provision of Section 62(2) of the
Act which is theadditional ground for attracting the jurisdiction. In these circumstances, by
operation of non-obstance clause, the principles relating to defendants carrying on business or
part of cause of action or subject matter becomes irrelevant as the present case falls under the
special provisions prescribed in the special statute. The said provisions under Section 62 are
84 Super Cassetes Industries Ltd. v. Myspace Inc.

in addition to and not in derogation or conflict with the general law as envisaged in the Code
of Civil Procedure. Thus, the recourse of the defendants counsel in relation to the principles
of general law is misplaced.
55.4 The personal amenability of the defendants are therefore, not relevant in case of suit
for infringement wherein the jurisdiction is sought to be invoked by way of provisions of the
special enactment when it provides for non obstante clause. The said non obstante clause thus
operate to its full extent and it cannot be said that there is a separate question of personal
amenability of the defendants to be in the forum state which is still to be considered.
55.5 It is true that that to sue a foreign defendant in this country, the foreigner either must
be resident and or carry on business within the jurisdiction of forum court. These are the
principles applicable in private International law. The only exception is if such party submits
to the jurisdiction. However the operation of this rule is not absolute but is subject to the
municipal law.
55.6 It is now well settled that when the municipal law provides otherwise or overrides the
private international law, then the municipal law prevails over and above the principles of
private international law. The said principle has been comprehensively decided by Karnataka
High Court in Airbus Industries Vs. Laura Howell Linton, ILR 1994 KAR 1370 wherein
the Court has stated that even the provisions of Section 20 (c) of the Code of Civil Procedure
which provides cause of action wholly or in part overrides the private international law.
The Madras High Court in Swaminathan v. Somasundaram AIR 1938 Mad 731 in
considering whether the Indian Courts have jurisdiction over non-resident foreigners, it was
held that even with respect to non-resident foreigners, the Courts in British India have
jurisdiction in personam in suits based upon a cause of action arising in British India.)
55.7 Thus, in the present case also even assuming that the rules of private international law
may have any role to play, the same stands overridden by the express provision of the special
act which is Copyright Act, 1957 which speaks otherwise and entitles the plaintiff to sue at
the place of its own forum.
55.8 Secondly, the argument was advanced by the defendants about the commission of
torts outside India. The said argument is also rejected as meritless. The commission of tort in
the present case is in India. The website of the defendants is one which is engaged in the
online business of providing and exhibiting the songs and cinematograph films worldwide
including India. The said website is usually accessed by Indians for downloading the songs of
upcoming movies from the website of the defendants. The plaintiff has substantiated the
cause of action by
showing some instances of infringements which has been caused in relation to the specific
works. Thus, the said commission of the tort has occurred or occurs in India wherein the
Indian user goes to the website, the defendants through its search engine exhibits the said
works and the work is communicated to the public by sending the work to him and facilitating
downloading or reaching to the computer of Indian user. Similarly, conversely, when the
Indian user shares the infringing work with the defendants website which goes into the
servers of the defendants and saved there after the uploading. The said actions are sufficient
to constitute part of cause of action under Section 20 (c) of the Code of Civil Procedure.
Super Cassetes Industries Ltd. v. Myspace Inc. 85

55.9 In the first case, the tort or civil wrong is caused in India as the aspect of downloading to
the computer has been occurred in India when the said work is communicated to Indian users
without the permission of the plaintiff. In the second case too, the initiation of the tort or part
of the same has occurred in India as the infringing work without the authority of the plaintiff
is communicated to the defendants with a limited licence to further modify and communicate
further. The said commission of the acts or the part of the overt acts constitutes the part of
cause of action within the meaning of Section 20 (c) of the Code of Civil Procedure.
55.10 Section 20 (c) of the Code confers jurisdiction where the cause of action wholly or in
part arises. Thus, the court where the part of cause of action will arise would have the
jurisdiction to entertain and try the proceeding like in the present case. So seeing from any
standpoint be from special act or general code of civil procedure, this court has necessary
territorial jurisdiction to entertain and try the proceedings. However, the discussion to Section
20 (c) of the Code becomes merely academic as the special act itself confers jurisdiction on
this court by operation of non obstante clause. Still, I have deemed it fit to discuss the same in
view of the categorical objections raised by the defendants on jurisdiction.
55.11 Thirdly, the reliance of the judgment of the Division Bench in Banyan Tree (Supra)
is equally misplaced by the defendants and thus does not aid the case of the defendants at all.
55.12 It is a well settled principles the judgment is an authority of what it decides and not for
the proposition which can be logically deduced therefrom. [The said proposition has been laid
down by the Supreme Court in Bharat Forge Co. Ltd. v. Utam Manohar Nakate (2005) I
LLJ 738 SC ; M.P. Gopalakrishnan Nair and Anr. vs. State of Kerala & Ors.: AIR 2005
SC2053] 55.13. In Banyan Tree (Supra), the Honble Division Bench has rightly reframed
the issue in the following manner:
For the purposes of a passing-off action, or an infringement action where the plaintiff is not
carrying on business within the jurisdiction of a court, in what circumstances can it be said
that the hosting of a universally accessible web-site by the defendants lends jurisdiction to
such court where such suit is filed (the forum state)?
By mere reading of the question answered by the Honble Division Bench, it becomes
patently clear that the Honble Division Bench was concerned with the question wherein a
passing off action, whether the jurisdiction of the court can be conferred by way of website
operation of the defendants or not, or the case of infringement where the plaintiff is not
carrying on business within the territorial jurisdiction of the court. The apparent
distinguishing features which make Banyan tree case inapposite to the present case are
outlined as under:
a) Firstly, the case of Banyan Tree (Supra) was a case of passing off, however, the
present case is a case of infringement wherein plaintiff invokes the jurisdiction on the basis of
carrying on his business at the forum court. It needs no further mention that it is now well
settled that the tests of conferring jurisdiction on the court in the case of the passing off and
the infringement are totally different. Whereas, the jurisdiction in infringement cases is
governed by the provisions of special act like Section 62(2) of the Copyright Act. On the
other hand, in the passing off cases, it is governed by the ordinary law of civil procedure.
Thus, the case of plaintiff carrying on business or working for gain which is a relevant and
86 Super Cassetes Industries Ltd. v. Myspace Inc.

significant consideration in the present case in view of operation of special statute was absent
in the case of Banyan Tree (Supra) and that was the sole reason the court had difficulty in
assuming the jurisdiction in Banyan Tree (Supra) which lead to referral to division Bench for
the question to be answered.
b) Secondly, The Division Bench in Banyan Tree (Supra) also observed that if the case
of Banyan Tree (Supra) would have been of infringement, then the court would have had
jurisdiction and the special provisions of Section 62(2) of Copyright Act, 1957 as well as
Section 134(2) of the Trade Marks Act are those of the kinds of the long arm provisions in the
limited sense. The relevant excerpt from the Banyan Tree (Supra) dicta is reproduced
hereinafter:
8. At the outset it needs to be noted that the present suit is not one for infringement by the
defendants of the Plaintiffs trademark and the Plaintiff carries on business within the
jurisdiction of the court. If it were, then in terms of Section 134 (2) of the Trademarks Act
1999 (TM Act) this court would have jurisdiction to entertain the suit although the defendants
do not reside or carry on business within its jurisdiction. Section 134 (2) of the TM Act (like
and Section 62 (2) of the Copyright Act, 1957) is therefore a long arm provision in a
limited sense, confined to infringement actions by Plaintiffs carrying on business within the
jurisdiction of the forum court. The present suit is an action for passing off in which neither
the Plaintiff nor any of the defendants voluntarily resides or carries on business within the
local limits of Delhi. Consequently, neither Section 20 (a) nor Section 20(b) CPC applies. The
Plaintiff seeks to find the territorial jurisdiction of this Court in terms of Section 20(c) CPC.
In other words, according to the Plaintiff the cause of action, wholly or in part, arises within
the jurisdiction of this Court. This, according to the Plaintiff is on account of two factors.
One, that the website of the defendants is accessible in Delhi; it is not a passive website but
used for soliciting business in Delhi. Second, that there was at least one instance of the
defendants brochure being sent to a Delhi resident for the purposes of sale of property.
Thus, the said distinction and the caveat expressed by the Division Bench itself is sufficient to
exclude the present case from that of the operation of Banyan Tree Judgment as it stands a
good
law which it decides and cannot be extended to infringement cases which are governed by
special provisions.
c) Thirdly, assuming that the judgment of Banyan Tree (Supra) may be applied to the
present case, even then the difference in the factual matrix further takes out the present case
from the application of the said dicta. This is due to the reason in Banyan Trees case
(supra), the court was concerned with the hotel services wherein there was tendency of
booking online in the hotel from every place and thus the mere act of booking cannot be held
to clothe jurisdiction on this court unless it forms a part of cause of action in the case whereas
in the present case concerns with the activities of the defendants which are primarily web
based which are interactive due to media presence, downloading, uploading and nothing else.
The court propounded doctrine of purposeful availment in Banyan Trees case (supra) to
show the nexus of the transaction with cause of action in the suit. In the sharp
contradistinction to the same, the defendants in the present case are offering to show and
communicating the Indian works to the Indian public with the interactive media inside and the
Super Cassetes Industries Ltd. v. Myspace Inc. 87

user is able to view the same online, download it and use it and further communicate to
public. The plaintiff has also substantiated the same by providing download of the sample
infringement which are also forming part of cause of action. Thus, there is sufficient
interactivity in the website which is aiming at the Indian users and shows nexus with the
complaint with the suit where the plaintiff is directly aggrieved. The present case would be
therefore, different from the case of Trade Mark infringement wherein some online
transaction or a trap order is shown to clothe cause of action for the purposes of invoking
jurisdiction.
The present case relates to complaints arising directly out of the online acts and thus cannot
be rejected on the counts of unconnected cause of action. Therefore, the Banyan Trees case
(supra) is inapplicable in the present case and rather if the tests laid down in the same are
applied, the present case sufficiently qualifies the tests of Banyan Tree (Supra).
Hence, for all these aforesaid reasons, this court will have jurisdiction to entertain and try the
proceeding.
58. The related argument as to jurisdiction was also raised by the learned counsel for the
defendants that this Court cannot exercise the extra territorial jurisdiction as assuming
jurisdiction would in this case would mean exercising extra territorial jurisdiction. The said
argument is rejected as baseless and the reasons for variance are outlined as under:
a) Firstly, this Court has already arrived at the finding that the court has assumed the
jurisdiction on the basis of the part of cause of action which has arisen in India and the
infringement is being caused in India. Thus, this court would have jurisdiction to entertain
and try the proceedings for infringements which has been caused in India.
b) Secondly it is merely the apprehension of the defendants that there will be some
effect of extra territorial for which this court is not concerned, it is neither the case of the
plaintiff to give this as an extra territorial effect and nor this court is giving any such effect as
contended by the defendants. Rather, the court is exercising the jurisdiction on the basis of
the law of the land which is Copyright Act of India, 1957.
c) Thirdly, it has already been observed that the commission of tort of infringement has
occurred in India which is prima facie infringing in nature, the said acts are prohibited under
the Copyright Act and thus this court is proceeding to do what is permissible under the law.
This court is not concerned with any incidental effects which the defendants are apprehensive
of due to the exercise of the jurisdiction of the Court and that cannot come in the way of
exercise of jurisdiction of this Court.
d) There are lots of cases cited on Article 245 of the Indian Constitution wherein it has
been observed about the parliamentary power to enact the extra territorial laws. The said
reliance of judgments is equally misplaced as in the present case, this court is not concerned
with the legislative competence of the any extra territorial laws. The said judgments are not
applicable to the present case as the court is exercising the jurisdiction on the basis of Indian
law having force in India and thus the concerns are mere apprehensions of the defendants
which this court cannot take care of.
PROBABLE EFFECT OF AMENDMENTS UNDER THE IT ACT 2000 (AS
AMENDED ON 2009) ON THE REMEDIES PRESCRIBED UNDER COPYRIGHT
ACT 1957.
88 Super Cassetes Industries Ltd. v. Myspace Inc.

59. Now I shall discuss another aspect of impact of the amended provisions of Information
Technology Act 2000 on the provisions of the Copyright Act inturn on the present case as it is
the defendants contention that the provisions of IT Act relates to internet related wrongs and
thus their acts are protected under the IT laws of India.
60. The submission has been advanced by the defendants that the amendments made in 2009
in the IT Act, 2000 will have great impact on the satisfaction of this Court for the purposes of
grant or non grant of the injunction against the defendants. The relevant sections of amended
Act relied upon by the defendants which according to the defendants will enable the
defendants to escape the liability of infringement are reproduced hereinafter:
Section 79 of IT Act, 2000 reads as under :
Exemption from liability of intermediary in certain cases -

Notwithstanding anything contained in any law for the time being in force but subject to the
provisions of sub-sections (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 intermediary is being used to commit the unlawful act,
the intermediary fails to expeditiously remove or disable access to that material or that
resource without vitiating the evidence in any manner.
Explanation: For the purposes of this section, the expression third party information means
any information dealt with by an intermediary in his capacity as an intermediary.
Section 81 of IT Act, 2000 reads as under : Act to have overriding effect.- The provisions
of this Act shall have effect notwithstanding anything inconsistent therewith contained in any
other law for the time being in force.
[Provided that nothing contained in this Act shall restrict any person from exercising any right
conferred under the Copyright Act, 1957 (14 of 1957) or the Patents Act, 1970 (39 of 1970)].
Section 2(w) of the IT Act defines intermediary as : "Intermediary" with respect to any
particular electronic records, means any person who on behalf of another person receives,
Super Cassetes Industries Ltd. v. Myspace Inc. 89

stores or transmits that record or provides any service with respect to that record and includes
telecom service providers, network service providers, internet service providers, web hosting
service providers, search engines, online payment sites, online-auction sites, online market
places and cyber cafes. 61. The submission advanced by the learned counsel for the
defendants is that the acts of the defendants are protected under Section 79 of the Act even if
this court is not convinced by the argument of safe harbor provisions of the Digitial
Millenium Act of US as the provision saves the liability of the intermediaries like the
defendants. Thus, the defendants acts of providing means of infringement and all other acts
communicating the works to the public are mitigated by way of operation of Section 79 of
Information Technology Act, 2000 ( as Amended on 2009). The provision according to the
defendants counsel is non obstante clause and thus will override the other acts.
Per contra, learned counsel Mr. Sibal has advanced the argument that the provision of Section
79 of Information Technology Act, 2000 cannot be read in isolation and has to be read along
with Section 81 which provides for the overriding effect of the Act. The said provisions also
enacts the proviso which is also inserted by way of amendment which states that nothing
contained in this Act shall restrict any person from exercising any right conferred under the
Copyright Act, 1957 or the Patent Act, 1970. Thus, as per Mr. Sibal, the IT Act may override
any other law, but by way of operation of the proviso to Section 81, the rights of the copyright
owner cannot be curtailed by applying any other provision of the IT Act.
63. I find that the provisions of Section 79 of the IT Act will have no bearing on the
liability of infringement on the defendants due to the reasons entailed hereinafter:
a) Firstly, I find merit in the submission of Mr. Sibal that conjoint reading of Section 79
and Section 81 makes it amply clear that the proviso to Section 81 prevents any provisions of
IT Act to act as restriction on exercising of the rights by the copyright owner. This makes it
clear when read the Section 81 which provides for the overriding effect of the IT act over
other laws. The proviso appended to the said section provides that nothing contained in
this act shall restrict the exercising of right by any person under the Copyright Act. The said
proviso carves out an exception to the main enactment which is under the head of overriding
effect of the IT Act.
64.The scope and ambit of the proviso to the enactment has been succinctly discussed by the
Apex Court in State of Rajasthan v. Leela Jain (1965) 1 SCR 276, wherein the Apex court
has held :
So far as a general principle of construction of a proviso is concerned, it has been broadly
stated that the function of a proviso is to limit the main part of the section and carve out
something which but for the proviso would have been within the operative part.

64.1In the case of Sales Tax Officer, Circle I, Jabalpur v. Hanuman Prasad :
[1967]1SCR831 , Honble Bhargava, J. observed :

It is well-recognised that a proviso is added to a principal clause primarily with the object of
taking out of the scope of that principal clause what is included in it and what the legislature
desires should be excluded.
90 Super Cassetes Industries Ltd. v. Myspace Inc.

64.2 Thus, the combine effect of reading Section 81 and the proviso is that the
provisions of IT act may override other laws for the time being in force but the cannot restrict
the rights of the owner under the Copyright Act and the Patent Act. In other words, the rights
of the
owners under the Copyright Act, 1957 and/ or Patent Act, 1970 shall remain unfettered by
any of the provisions of IT Act.

64.3 Accordingly, Section 79 cannot restrict the rights of the copyright owner by saving the
liability of the defendants of the infringing acts caused under the provisions of Section 51 (a)
(ii) of the Act by operation of proviso to Section 81 of the Act.

b) Secondly, I am also doubtful that even if the provision of Section 79 of the IT Act is
applied to the present case, whether the defendants qualifies to get the benefit of the same
under the IT Act. This is due to the reason that Section 79 although is a non obstante clause
but is subject to Section 79 (2) and Section 79 (3) which provides the conditions of
applicability and non applicability of the Section.

The said Section 79 (2) (a) states that the Section will apply if 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.

64.4 The use of the wordings or between (a) and (b) makes them disjunctive, although
(c) has to coexist with (a) or (b) whichever is applicable. In the present case, the provisions of
Section 79 (2) (a) is not fulfilled as the function of the defendants is not confined to only
provide an access to communication system where the third party information is stored,
transmitted or hosted. But rather the defendants provides access only after a limited licence to
add or modify the work and thereon by adding advertisements to the said works, modifying
the works which means permitting the place for profit with knowledge. The said acts are thus
of not those kinds prescribed under the provision of Section 79 (2)
(a) which are of a limited role of merely providing an access to system containing storage
medium or transmission of the third party information. 65. The acts of the defendants also
may not fall with Section 79

(2) (b) as the said situation prescribed in the provision has to be satisfied conjunctively or
collectively as the word used between the (i), (ii), (iii) isand which means all the
situations must be satisfied else, the said conditions in the provision are not met with. In the
present case, the defendants acts do not satisfy the criteria of modification of information.
Super Cassetes Industries Ltd. v. Myspace Inc. 91

The defendants have attained the licence to modify the works provided by the users suitably.
The complaint of the plaintiff is that adding the advertisement also infringes their rights.
Thus, the act of modification of the works by the defendants also excludes the defendants
from the purview of Section 79 (2) (b) of the Act.

The third condition of due diligence is also doubtful as the due diligence is required while
discharging his duties. Thus, if the defendants are put to notice about the rights of the plaintiff
in certain works, the defendants should do preliminary check in all the cinematograph works
relating Indian titles before communicating the works to the public rather than falling back on
post infringement measures. The due diligence is also not satisfied when the defendants
uploads the contents of the user on their server and then modify the same as per the limited
licence to amend from users. This means that the defendants have the chances to keep a check
on the works which defendants avoid so to the reasons best known to them. The due diligence
is thus also doubtful although defendants contend for the satisfaction of due diligence.

67. From the above, it is also clear that the applicability of Section 79 is also not satisfied
although by operation of proviso to Section 81, the discussion on Section 79 is not really
important. I do not also find my agreement with the submission of the defendants that there
will be harmonious construction between Copyright Act and IT Act if the provision of
Section 79 will save the liability of the copyright infringement of the intermediaries like the
defendants. I think rather accepting the submission would lead to apparent disharmony or
conflict between the provisions of two Acts. This can be explained as follows:

68. Firstly it is well settled canon of construction that the court should adopt the mode of
construction which upholds the provisions of the Act and make them workable and the
interpretation which makes any provision of the Act otiose must be eschewed.

68.1 In High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor Panchayat and
Ors. [2003] 2 SCR 799 , the Supreme Court held as under :

35. The Court while interpreting the provision of a statute, although, is not entitled to rewrite
the statute itself, is not debarred from "ironing out the creases". The court should always
make an attempt to uphold the rules and interpret the same in such a manner which would
make it workable.
36. It is also a well-settled principle of law that an attempt should be made to give effect to
each and every word employed in a statute and such interpretation which would render a
particular provision redundant or otiose should be avoided.

68.2 If Section 79 of the IT Act is allowed to operate as an embargo or restriction upon

the exercise of the right of right holder by saving the liability of the copyright infringement,
the said interpretation will render proviso to Section 81 of the IT Act otiose or unworkable.
The said interpretation thus leads the purpose of the proviso as redundant. On the contrary, if
the gamut of the Section 79 is allowed to remain confined and subject to the proviso of
92 Super Cassetes Industries Ltd. v. Myspace Inc.

Section 81 which is intended to be so by the legislature, both the provisions can stand and
work in their respective fields.

68.3 Section 79 is, thus, meant for all other internet wrongs wherein intermediaries may be
involved including auctioning, networking servicing, news dissemination, uploading of
pornographic content but not certainly relating to the copyright infringement or patent
infringement which has been specifically excluded by way of proviso to Section 81. This can
be only possible harmonious construction between the two Acts which makes both the Acts
workable.

68.4 Secondly, besides making proviso to Section 81 otiose, the interpretation canvassed
by the defendants lead to conflict between two acts and also leads to absurd results. This is
due to the reason that the Copyright Act, 1957 itself provides for an infringement as well as
the exceptions of the infringement. Once the infringement is established, the remedies to the
same are prescribed by Section 55. In that situation and given the fact that there is an express
proviso excluding the copyright infringement from the purview of IT Act if not applied leads
to unnecessary adding further restrictions on the copyright infringements which is
impermissible and therefore leads to absurd results negating the statutorily prescribed
remedies for copyright infringement.

68.5 Further the provisions of authorization or permitting the place for profit requires
knowledge or reasonable belief and other common law requirements for establishing the
infringement as discussed above. Thus, the said act of authorization and/or permitting the
place for profit itself requires knowledge and reasonable belief of infringement which are
inbuilt exception to the infringement, The operation of Section 79 to exempt the liability of
the intermediary except in cases of knowledge is rather repetition of the same provision and if
the same is allowed to operate in the way of infringement which itself requires knowledge and
reasonable belief or countenance or approval in respective cases would lead to anomalous
situations and would lead to absurd results.

68.6 Thirdly, there is no legislative disharmony by operation of the proviso to Section 81

and rather adding of proviso to Section 81 by way of amendment put the unrest into an end. If
Section 79 would have application to the copyright infringement which saves absolutely the
liability of the intermediary without insertion of the proviso by the legislature under Section
81, then there would have been apparent conflict between the acts of infringement by way of
permitting the place for profit provided under Section 51 (a) (ii) and Section 79 which saves
the liability of the intermediary. Thus, without insertion of the proviso to Section 81, there
would have been two laws, one, providing the acts of intermediary or facilitator as
infringement and another saving the liability.

68.7 In Dwarka Prasad v. Dwarka Das Saraf [1976] 1 SCR 277. Honble Krishan Iyer, J.
speaking for the Court observed thus:
There is some validity in this submission but if, on a fair construction, the principal provision
is clear, a proviso cannot expand or limit it. Sometimes a proviso is engrafted by an
Super Cassetes Industries Ltd. v. Myspace Inc. 93

apprehensive draftsman to remove possible doubts, to make matters plain, to light up

ambiguous edges. Here, such is the case....

68.8 The adding of proviso is rather not only exclusionary but also clarificatory in nature
which clarifies that the provisions of IT Act may not restrict the rights under Copyright Act or
Patent Act as its tries to create and confer harmony between two laws and enactments so that
they can operate in their respective fields. Thus, there is harmony by adopting the proviso
rather than negating it.

69. In view of the above discussion, I find that there is no impact of provisions of Section 79
of IT Act (as amended on 2009) on the copyright infringements relating to internet wrongs
where intermediaries are involved and the said provision cannot curtail the rights of the
copyright owner by operation of proviso of Section 81 which carves out an exception cases
relating to copyright or patent infringement.

RELIANCE ON INTERNATIONAL COVENANTS

79. Now, I shall be dealing with the submissions advanced by the learned counsel for the
defendants on the reading of International covenants and adopting the same in interpreting the
copyright law and especially the internet related wrongs which is The WIPO Copyright
Treaty and its Article 8.

It is also equally well settled that the international law and covenants can be taken recourse of
in the municipal law to the extent they are not inconsistent with the municipal law and to fill
the gaps in the existing law. {This has been accepted by Supreme Court in Visakha & Ors. vs.
State of Rajasthan, (1997) 6 SCC 241)}
80.In the present case, the defendants themselves have informed the Court that India has not
even ratified the said convention. Thus, the reliance on the said convention into Indian law is
thus misplaced. Further, The answer to this can be traced if one reads the judgment of
Entertainment Network (Supra) more carefully wherein the court discusses the extent
to which the international covenants can be read into the national law.The relevant
paragraphs of the judgment are reproduced hereinafter:
While India is a signatory to the International Covenants, the law should have been amended
in terms thereof. Only because laws have not been amended, the same would not by itself
mean that the purport and object of the Act would be allowed to be defeated. If the ground
realities changed, the interpretation should also change. Ground realities would not only
depend upon the new situations and changes in the societal conditions vis-a-vis the use of
sound recording extensively by a large public, but also keeping in view of the fact that the
Government with its eyes wide open have become a signatory to International Conventions.
It is for the aforementioned limited purpose, a visit to the provisions of International
Conventions would be necessary. In interpreting the domestic/municipal laws, this Court has
extensively made use of International law inter alia for the following purposes:
(i) As a means of interpretation;
(ii) Justification or fortification of a stance taken;
94 Super Cassetes Industries Ltd. v. Myspace Inc.

(iii) To fulfill spirit of international obligation which India has entered into, when they are not
in conflict with the existing domestic law;
(iv) To reflect international changes and reflect the wider civilization;
(v) To provide a relief contained in a covenant, but not in a national law;
(vi) To fill gaps in law.
Beginning from the decision of this court in Kesavananda Bharati v. State of Kerala
[(1973) 4 SCC 225], there is indeed no dearth of case laws where this Court has applied the
norms of international laws and in particular the international covenants to interpret domestic
legislation. In all these cases, this court has categorically held that there would be no
inconsistency in the use of international norms to the domestic legislation, if by reason thereof
the tenor of domestic law is not breached and in case of any such inconsistency, the domestic
legislation should prevail.
However, applicability of the International Conventions and Covenants, as also the
resolutions, etc. for the purpose of interpreting domestic statute will depend upon the
acceptability of the Conventions in question. If the country is a signatory thereto subject of
course to the provisions of the domestic law, the International Covenants can be utilized.
Where International Conventions are framed upon undertaking a great deal of exercise upon
giving an opportunity of hearing to both the parties and filtered at several levels as also upon
taking into consideration the different societal conditions in different countries by laying
down the minimum norm, as for example, the ILO Conventions, the court would freely avail
the benefits thereof.

Those Conventions to which India may not be a signatory but have been followed by way of
enactment of new Parliamentary statute or amendment to the existing enactment, recourse to
International Convention is permissible.
81. From the reading of the aforesaid, it is clear that the international covenant wherein
India is a signatory state can be utilized for limited purposes of bridging the gap between
national law and international to the extent it is not repugnant with the national law. I am
doubtful as to whether any of the tests laid down by Supreme Court are fulfilled in the present
case in order to enable this court to consider the international covenant relied upon by the
defendants. Firstly India has not ratified the said convention as per the defendants, thus
there is no international obligation which is to be respected in the present case.
Secondly, the defendants counsel wants this court to read into the following statement
to their benefit:
It is understood that the mere provision of physical facilities for enabling or making a
communication does not in itself amount to communication within the meaning of this Treaty
or the Berne Convention. It is further understood that nothing in Article 8 precludes a
contacting party from applying Article 11 bis (2).
82.There is no disputing this proposition and I have in the preceding paragraphs of my
judgment laid down this proposition that merely providing means does not amount to
Super Cassetes Industries Ltd. v. Myspace Inc. 95

authorization. But this statement as such cannot be read into due to the non fulfillment
of principles which enables this court to read into the international covenants.
83 This statement is neither bridging any gaps in the law and is rather part of the statute in
India where permitting the place for profit is an infringement and not providing mere means.
The reading of this statement itself may not aid the case of the defendants in any event and,
thus, I am not convinced and also not sure as to what aid the defendants intend to draw from
reading of this article from the convention. This also does not affect the invocation of the
provision of Section 51 (a) (ii) of the Act basing upon which I have found prima facie view of
the infringement.
The submission has been made by the learned counsel for defendants that the defendants acts
of providing the tools relating to notice and turn down provisions are sufficient safeguards
and amounts to due diligence which should be considered to be a mitigating factor against the
grant of the injunction as the defendants are taking curative measures against the possible
infringement.
85. I have gone through the submission advanced by the learned counsel for the
defendants and I reject it being meritless. This is due to following reasons I find that the said
post infringement measures may not be prima facie sufficient safeguards for the
infringements:
a) Firstly, I wish to again discuss Section 51 (a) (ii) of the Act read with Section 55
proviso, the wordings of which nowhere permits any room for due diligence to be exercised
by the infringer and only provides an exemption for mistaken infringement on the count of
lack of knowledge or the person was not aware of the said infringement. Under these
circumstances, permitting this kind of due diligence post infringement would mean reading
the words into the statute which would be impermissible under the canons of construction
when the statute does not provides so.
b) Secondly, I have already concluded separately that provisions of IT Act would not
curtail the remedies under the Copyright Act and Patent Act by virtue of the proviso of IT
Act. In these circumstances, the provisions of Section 79 cannot also allow to militate against
the case of established infringement under Section 51 and Section 55 of the Act.
c) Thirdly, there are no safeguards provided under the Copyright Act for the
infringement in the cases like the present one wherein there is a knowledge and exercise of
due diligence post infringement. Rather, the conjoint reading of Section 51 of the Act and
proviso to the Section 55 of the Act makes it clear that the knowledge or no notice of the
infringement can only assist the defendants in resisting the damages and not the injunction.
However, in some cases like the present one under Section 51 (a) (ii) of the Act, lack of
knowledge can save the liability of infringement as the same is the ingredient of the Section.
But certainly, there is no provision which can save the liability when there is an apparent
knowledge and exercise of due diligence post infringement. I have already formed an opinion
that the defendants are aware and has reasonable belief of infringement and thus the exercise
of due diligence after the infringement cannot operate in favour of the defendants to escape
the liability.
96 Super Cassetes Industries Ltd. v. Myspace Inc.

d) Fourthly, if there is any due diligence which has to be exercised in the event of
absence of any provision under the Act, the said due diligence must be present at the time of
infringement and not when the infringement has already occurred so that the infringement can
be prevented at the threshold and not when the same has already occurred. The post
infringement measures like the ones informed by the defendants which are in compliances of
US statute may hold good in US due to the legislative measure but the same are not operative
in India. Such post due diligence on the ground of some inherent helplessness which the
defendants are pleading only because they are sitting on internet or cyberspace may not be
correct as the law does not exclude cyberspace from its purview to do infringements there.
The defendants have sufficient means to modify the work by taking licenses from the users,
adding advertisements to the works of the plaintiff. Consequently, the effective means for pre
infringement enquires are also necessarily have to be performed by the defendants only. If the
defendants state that there no means to do so due to some impossibilities, the defendants must
take preliminary measures at the time of modification of the works and prior to making them
available to the public so as to ensure that the same does not infringe any ones copyright.
86. It gives me no hesitation to state that the compulsion which the defendants are pointing
out of lack of corrective measures at the first instance due to multiplicity of the works or
uploads and also the diversified business of the defendants is not only the plea taken by the
defendants for the first time in any infringement action relating to copyright infringement. It
is rather applicable to any case of infringement. Take for instance, the case of music library or
shop selling movies for hire wherein the defendants take the plea that due to multiplicity of
numbers or titles, one cannot identify the pirated ones from the originals. But this kind of
argument or plea cannot preclude the labour or burden which the defendants ought to have
exercised while taking into the possession the pirated titles by enquiring as to whether they
are belonging to the owner or emanating from owner or not. The situation will become more
complex when the same movie seller or person giving for hire will start keeping the
international titles like Hindi Movies, English Movies, French Movies and Pakistani titles.
The said labour then increases manifold and the said justification also gains more strength
when he says that the due to several sources, it becomes virtually impossible to keep a hold of
the each and every title whether original or duplicate. Even if the said person states that once
it is brought to his notice by the customer or the owner that it is an infringement, he
immediately removes the said title from the library or the shop. The said acts cannot save him
from the liability of the infringement.
87. Likewise in the present case, the labour or the due diligence is the enquiry by the
defendants themselves to be exercised. The nature of portal due to which the defendants feels
helpless is of less avail to mitigate the liability unless there is a statutory exemption to that
effect (like in Digital Millennium Copyright Act (DMCA). The defendants can do many
things to stop this, first that it can enquire at the stage when the defendants modify the works,
at that time the defendants can enquire about the titles of the work and about ownership,
secondly at the time of the uploading by the user, the content should not immediately made
the available to the public, the defendants can put them to the halt subject to enquiries of the
titles or authentication of the proprietor and thereafter make them available to the public.
There is no reason to axiomatically make each and every work available to the public solely
Super Cassetes Industries Ltd. v. Myspace Inc. 97

because user has supplied them unless the defendants are so sure that it is not infringement. If
the defendants cannot exercise diligence of this nature, the necessary inferences can be drawn
is that the defendants are making itself liable for infringement by its inactions to enquire
about the source of the works at the appropriate stage.

89. Thus, even if the post infringement measures which may be acceptable in certain
legal systems due to the specific legislations may not be hold good in India when the statute
in India does not culls out any such exception as mitigating factor.

98. Consequently, the present case warrants the grant of interim injunction for the purposes of
prevention of infringement of the plaintiffs works. However, this court is not precluded from
granting the interim relief in the moulded form so that the infringement can be prevented
which is in fact the relief asked by the plaintiff in its interim application. Accordingly, the
following interim directions and orders are passed:
a) The defendants, their agents, representatives, servants, their officers or any person on
their behalf are restrained from modifying the works (more specifically the works of the
plaintiff), by adding advertisements to the said works of the plaintiff adding logos and/ or
sponsorships to the works, or earning profit otherwise in any manner in relation to the said
works consequent upon uploading to their website/webspace of www.myspace.com or
in.myspace.com without making endeavours to enquire the ownership of the plaintiff (as at
that stage of modification, the defendants have all means to enquire about the same) and
thereby making them available to the public either by displaying (or playing or exhibition) of
on the website or allowing the downloading from their website or otherwise of the said works
in the modified form which will lead to permitting the place for profit within the meaning of
Section 51 (a) (ii) of the Act and causes infringement of copyright of the plaintiff.
b) In relation to the future works of the plaintiff to be uploaded by the users other than
those which are mentioned in (a), it has been stated by defendants fairly in the written
statement that the order passed by the division bench is only possible solution and have also
during the course of the arguments agreed that the defendants would not be inconvenienced if
the order passed by learned division bench is continued. Accordingly, the defendants shall
delete the works of the plaintiff as and when the plaintiff provides the details of its songs and
films which have been uploaded on the web-site of the defendants, the defendants shall
immediately take remedial measures to remove the same from its website not later than one
week from the date of such communication.
c) Further the defendants are also directed to verify from the plaintiff independently
without waiting the direction under
(b) to be complied with by the plaintiff on their own by other means continuously or
through its India centric operations about the ownership status or updations in the works of
the plaintiff and shall do their honest endeavours on their own to remove the offending
content or infringing works immediately after the gaining the said knowledge.
98 Super Cassetes Industries Ltd. v. Myspace Inc.

d) In relation to the works of the plaintiff which are already turned down once by the
defendants, the defendants are restrained from further allowing the continuation of the
uploadings or its existence on its website of the same works which have already been turned
down/ deleted by the defendants at the behest of the plaintiff request. This has been already
stated by the defendants by explaining their various tools for preventing infringement wherein
the defendants possess the necessary tools and the technology which identifies and prevents
the repetitions in infringements after its first posting and deletion. Accordingly, the
defendants are directed to ensure the deletions and the preventions of repetitions on their own
after putting to notice by the plaintiff about the works by availing their own tools and not by
the calling the plaintiff to do this by some subscription. In this way, the parties in the interim
can prevent the infringements and its occurrence on the website of the defendants till the
disposal of the suit. The orders passed in the interim applications are tentative in nature and
does not come in the away of the court at the time of hearing of the matter after the
completion of the trial.
Consequently, the plaintiffs application being IA No.15781/2009 (U/o 39 R 1 & 2
CPC) is allowed and defendants application being IA No.3085/2009 (U/o 39 R 4 CPC) is
dismissed with cost of Rs.20,000/-.
100. IA No.15781/2009 and IA No.3085/2009 are accordingly disposed of.

*****
 Google India Pvt Ltd v. M/s Visaka Industries Ltd
A P High Court Crl P No, 7207 of 2009 dt 19/4/2011
HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
ORDER:
1.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 represented by its Managing Director (Sales and Operations). The 1st
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
Sec.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;
100 Google India Pvt Ltd v. M/s Visaka Industries Ltd

(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 Information
Technology (Amendment) Act, 2008 (10 of 2009) dated 05.02.2009 with effect from
27.10.2009 by way of substituting the following in the place of original chapter:
"CHAPTER XII INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN
CASES
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-sections (2) and (3), an intermediary shall not be liable for any third
party information, data, or communciation link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if- (a) the functions 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 induces whether by threats or
promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by information, data or
communication link residing in or connected to a computer resource controlled by the
intermediary 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.
Explanation.- For the purposes of this section, the expression "third party information"
means any information dealt with an intermediary in his capacity as an intermediary."
Google India Pvt Ltd v. M/s Visaka Industries Ltd 101

It is only under the said amendment, non-obstenti clause was incorporated in Section 79
keeping application of other laws outside the purview in a fact situation covered by the said
provision. Now, after the amendment, an intermediary like a network service provider can
claim exemption from application of any other law in respect of any third party information,
data or communication link made available or hosted by him; provided he satisfied the
requirements under Sub-section (2) of Section 79. Further, as per amended Sub- section (3) of
Section 79, the exemption under Sub-section (1) cannot be applied by any Court and cannot
be claimed by any intermediary in case the intermediary entered into any conspiracy in
respect thereof. Also, the intermediary cannot claim exemption under Sub-section (1) in case
he fails to expeditiously remove or disable access to the objectionable material or unlawful
activity even after receiving actual knowledge thereof. In the case on hand, in spite of the 1st
respondent issuing notice bringing the petitioner about dissemination of defamatory material
and unlawful activity on the part of A-1 through the medium of A-2, the petitioner/A-2 did
not move its little finger to block the said material or to stop dissemination of the unlawful
and objectionable material. Therefore, the petitioner/A-2 cannot claim any exemption either
under Section 79 of the Act as it stood originally or Section 79 of the Act after the
amendment which took effect from 27.10.2009. The present case in the lower Court was
instituted in January, 2009 relating to the offences which are being perpetrated from
31.07.2009 onwards i.e., since long prior to the amendment to the said provision.
5) There is no exemption of any criminal liability in respect of a company which is a
juristic person and which has no body that can be damned or contemned. In case found guilty,
the petitioner company can be awarded with appropriate punishment though not corporal
punishment. In that view of the matter, I find no merit in this criminal petition.
6) Accordingly, the Criminal Petition is dismissed.
*****
 Vyakti Vikas Kendra, India Public v. Jitender Bagga (Del HC)
I.A. No. 8877/2012 in CS(OS) No.1340/2012
Order decided on : 09.05.2012

HON'BLE MR. JUSTICE MANMOHAN SINGH

5. The four plaintiffs, namely, Vyakti Vikas Kendra, India Public Charitable Trust,
Mr Gautam Vig, Mrs. Bhanumati Narsimhan and Mrs. Sharmila Murarka, have filed
present suit against the defendants for damages to tune of Rs.5,09,00,000/-, permanent
and mandatory injunction, mainly on the ground that they are aggrieved, hurt and
immensely concerned on account of certain highly defamatory materials posted on an
internet website by the name http://www.blogger.com/ by one Mr Jitender Bagga, the
defendant No.1 herein. The said website is owned by Google, the defendant No.2. It is
a Blog Publishing Service which allows people to create and publish a "Blog".
6. According to the plaintiff, the defendant No.1 has been indiscriminately sending e-
mails and has published a large number of blogs on the website
http://www.blogger.com/, which according to them is highly vulgar, disgusting and
abusive references towards His Holiness Sri Sri Ravi Shankar, owner of Art of Living
Foundation, and towards various other persons associated with the Art of Living.
7. It is stated in the plaint that the plaintiff No. 1, Vyakti Vikas Kendra, India Public
Charitable Trust, is a registered Public Charitable Trust constituted to implement and
promote the spiritual, educational, social and developmental activities for The Art of
Living in India. The Art of Living, founded in 1981, is one of the worlds largest
volunteer based, humanitarian and educational organizations inspired by His Holiness
Sri Sri Ravi Shankars vision of creating a stress-free, violence-free society. The
plaintiff No. 2, Mr. Gautam Vig is a devout follower of His Holiness Sri Sri Ravi
Shankar. The plaintiff No. 3, Mrs. Bhanumati Narsimhan is His Holiness Sri Sri Ravi
Shankars sister and an Art of Living teacher. The plaintiff No. 3 is personally a
victim of the defendant No. 1s defamatory acts. The plaintiff No. 4, Mrs. Sharmila
Murarka is an Art of Living Teacher.
Plaintiff No. 4 is also personally a victim of defendant No. 1s defamatory acts. The
defendant No. 1 has created and published various materials on the Internet, which are
highly defamatory to the plaintiffs. In para 10, there is a table containing defamatory
materials to the plaintiffs, the Art of Living Foundation, its spiritual head Sri Sri Ravi
Shankar and his family members. The list of Internet URL is as under:
Internet URL http://revolutionprithvi.blogspot.in/ http://revolutionprithvi.blogspot.in/
http://revolutionprithvi.blogspot.in/ http://revolutionprithvi.blogspot.in/
http://revolutionprithvi.blogspot.in/ http://revolutionprithvi.blogspot.in
http://revolutionprithvi0.blogspot.in/ http://revolutionprithviandmore.blogspot.in/
http://srisriravishankarisguruorconman.blogspot.in/
Vyakti Vikas Kendra, India Public v. Jitender Bagga (Del HC) 103

http://chairmanrilabetsrioting.blogspot.in
http://chairmanrilabetsrioting.blogspot.in/2011/12/chair man-reliance-industries-
limited.html http://chairmanrilabetsrioting.blogspot.in/2012/01/does
-chairman-reliance-industries.html
http://chairmanrilabetsrioting.blogspot.in/2012/02/is- reliance-industries-limited-
chairman.html http://diduspresidentcreateterrorists.blogspot.in/
http://revolutionprithviandmore.blogspot.in/2012/02/sri
-sri-ravi-shankar-barack-obama.html
http://revolutionearthandmore.blogspot.in/2011/12/revo lution-earth-more.html
http://diduspresidentcreateterrorists.blogspot.in/2012/0 2/aol-founder-us-president-
are-global.html http://diduspresidentcreateterrorists.blogspot.in/2012/0 1/arent-
present-un-secretary-general-us.html
http://diduspresidentcreateterrorists.blogspot.in/2012/0 1/is-us-president-incompetent-
fraud.html http://chairmanrilabetsrioting.blogspot.in/2012/01/does
-chairman-reliance-industries.html
http://chairmanrilabetsrioting.blogspot.in/2011/12/chair man-reliance-industries-
limited.html http://chairmanrilabetsrioting.blogspot.in/2012/01/does
-chairman-reliance-industries.html
http://chairmanrilabetsrioting.blogspot.in/2012/02/is- reliance-industries-limited-
chairman.html
8. It is contended by the plaintiffs that in case the interim order is not passed against
the defendants, the plaintiffs will suffer irreparable loss and injury. They will also
suffer immense loss of reputation, mental trauma, harassment and humiliation.
9. It is stated in the plaint that notice was given to the defendant No.1, who failed to
give any reply.
10. The plaintiffs have filed the policy of defendant No.2 for removal of defamatory
content from its website http://www.blogger.com/. The relevant extract thereof reads
as under :
"After careful review, Blogger may remove content or place a content warning page
before viewing content deemed offensive, harmful, or dangerous, such as : Hate
against a protected group Adult or pornographic images Promotion of dangerous
and illegal activity Content facilitating phishing or account hijacking
Impersonated user identity Additionally, we are aware that there may be content on
Blogger that is personal in nature or feels invasive. Please note that Blogger is a
provider of content creation tools, not a mediator of that content. We allow our users
to create blogs, but we dont make any claims about the content of these pages. We
strongly believe in freedom of expression, even if a blog contains unappealing or
distasteful content or presents unpopular viewpoints. We realize that may be
104 Vyakti Vikas Kendra, India Public v. Jitender Bagga (Del HC)

frustrating, and we regret any inconvenience this may cause you. In cases where
contact information for the author is listed on the page, we recommend that you work
directly with this person to have the content in question removed or changed.
Here are some examples of content we will not remove unless provided with a Court
order :
Personal attacks or alleged defamation
Parody or satire of individuals
Distasteful imagery or language
Political or social commentary"
11. Defendant No.2 is an intermediary within the definition of Section 2(1) (w) and
Section 79 of the Information Technology Act, 2000. Under Section 79 (3)(b) of the
IT Act,2000, defendant No.2 is under an obligation to remove unlawful content if it
receives actual notice from the affected party of any illegal content being
circulated/published through its service. He is bound to comply with Information
Technology (Intermediaries Guidelines) Rules 2011.
Rule 3(3) of the said rules read with Rule 3(2) requires an intermediary to observe due
diligence or publish any information that is grossly harmful, defamatory, libellious,
disparaging or otherwise unlawful.
12. Rule 3(4) of the said rule provides obligation of an intermediary to remove such
defamatory content within 36 hours from receipt of actual knowledge. The said rule
expressly provides as follows-
" The Intermediary , on whose computer system the information is stored or hosted or
published , upon obtaining knowledge by itself or been brought to actual knowledge
by an affected person in writing or through e-mail signed with electronic signature
about any such information as mentioned in sub rule (2) above, shall act within 36
hours and where applicable, work with user or owner of such information to disable
such information that is in contravention of sub rule (2)."
13. In view of the foregoing facts and reasons mentioned above, it appears that the
plaintiffs have been able to make out a strong prima facie case of passing of ex-parte
interim order. The balance of convenience also lies in favour of the plaintiffs and
against the defendants. Incase, interim order is not passed, the plaintiffs will suffer
irreparable loss and injury. Thus, till the next date, the defendant No. 2 is directed to
remove all defamatory contents about the plaintiffs posted by the defendant No.1 on
defendant No.2s website http://.blogger.com/ as well as the links mentioned in
paragraph 4 of the present application within 36 hours from date of knowledge of the
order passed by this Court. The defendant No.1 is restrained from sending any e-mail
including e-mails, the details of which are given in para 7 of this order or posting any
Vyakti Vikas Kendra, India Public v. Jitender Bagga (Del HC) 105

material over the internet which has a direct or indirect reference to the plaintiffs or
the Art of Living Foundation or any member of the Art of Living Foundation, or His
Holiness Sri Sri Ravi Shankar.
14. Compliance of Order XXXIX, Rule 3 CPC be made within three days.
15. Copy of the order be given dasti under the signature of the Court Master/Private
Secretary.
*****
 Shreya Singhal v. U.O.I (SC)
WRIT PETITION (CRIMINAL) NO.167 OF 2012
24 March, 2015

R.F. NARIMAN, J. -
1. This batch of writ petitions filed under Article 32 of the Constitution of India raises very
important and far-reaching questions relatable primarily to the fundamental right of free
speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. The
immediate cause for concern in these petitions is Section 66A of the Information Technology
Act of 2000. This Section was not in the Act as originally enacted, but came into force by
virtue of an Amendment Act of 2009 with effect from 27.10.2009. Since all the arguments
raised by several counsel for the petitioners deal with the unconstitutionality of this Section it
is set out hereinbelow:
"66-A. Punishment for sending offensive messages through communication service, etc.-Any
person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill
will, persistently by making use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin of such
messages, shall be punishable with imprisonment for a term which may extend to three years
and with fine.
Explanation.- For the purposes of this section, terms "electronic mail" and "electronic mail
message" means a message or information created or transmitted or received on a computer,
computer system, computer resource or communication device including attachments in text,
image, audio, video and any other electronic record, which may be transmitted with the
message."[1]
2. A related challenge is also made to Section 69A introduced by the same amendment which
reads as follows:-
"69-A. Power to issue directions for blocking for public access of any information through
any computer resource.-(1) Where the Central Government or any of its officers specially
authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the
interest of sovereignty and integrity of India, defence of India, security of the State, friendly
relations with foreign States or public order or for preventing incitement to the commission of
any cognizable offence relating to above, it may subject to the provisions of sub-section (2),
for reasons to be recorded in writing, by order, direct any agency of the Government or
intermediary to block for access by the public or cause to be blocked for access by the public
any information generated, transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public may
be carried out, shall be such as may be prescribed.
Shreya Singhal v. U.O.I (SC) 107

(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall
be punished with an imprisonment for a term which may extend to seven years and shall also
be liable to fine."
3. The Statement of Objects and Reasons appended to the Bill which introduced the
Amendment Act stated in paragraph 3 that:
"3. A rapid increase in the use of computer and internet has given rise to new forms of crimes
like publishing sexually explicit materials in electronic form, video voyeurism and breach of
confidentiality and leakage of data by intermediary, e-commerce frauds like personation
commonly known as Phishing, identity theft and offensive messages through communication
services. So, penal provisions are required to be included in the Information Technology Act,
the Indian Penal code, the Indian Evidence Act and the code of Criminal Procedure to prevent
such crimes."
4. The petitioners contend that the very basis of Section 66A - that it has given rise to new
forms of crimes - is incorrect, and that Sections 66B to 67C and various Sections of the Indian
Penal Code (which will be referred to hereinafter) are good enough to deal with all these
crimes.
5. The petitioners' various counsel raised a large number of points as to the constitutionality
of Section 66A. According to them, first and foremost Section 66A infringes the fundamental
right to free speech and expression and is not saved by any of the eight subjects covered in
Article 19(2). According to them, the causing of annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity, hatred or ill- will are all outside the
purview of Article 19(2). Further, in creating an offence, Section 66A suffers from the vice of
vagueness because unlike the offence created by Section 66 of the same Act, none of the
aforesaid terms are even attempted to be defined and cannot be defined, the result being that
innocent persons are roped in as well as those who are not. Such persons are not told clearly
on which side of the line they fall; and it would be open to the authorities to be as arbitrary
and whimsical as they like in booking such persons under the said Section. In fact, a large
number of innocent persons have been booked and many instances have been given in the
form of a note to the Court. The enforcement of the said Section would really be an insidious
form of censorship which impairs a core value contained in Article 19(1)(a). In addition, the
said Section has a chilling effect on the freedom of speech and expression. Also, the right of
viewers is infringed as such chilling effect would not give them the benefit of many shades of
grey in terms of various points of view that could be viewed over the internet.
The petitioners also contend that their rights under Articles 14 and 21 are breached inasmuch
there is no intelligible differentia between those who use the internet and those who by words
spoken or written use other mediums of communication. To punish somebody because he
uses a particular medium of communication is itself a discriminatory object and would fall
foul of Article 14 in any case.
6. In reply, Mr. Tushar Mehta, learned Additional Solicitor General defended the
constitutionality of Section 66A. He argued that the legislature is in the best position to
understand and appreciate the needs of the people. The Court will, therefore, interfere with
the legislative process only when a statute is clearly violative of the rights conferred on the
108 Shreya Singhal v. U.O.I (SC)

citizen under Part-III of the Constitution. There is a presumption in favour of the

constitutionality of an enactment. Further, the Court would so construe a statute to make it
workable and in doing so can read into it or read down the provisions that are impugned. The
Constitution does not impose impossible standards of determining validity. Mere possibility
of abuse of a provision cannot be a ground to declare a provision invalid. Loose language may
have been used in Section 66A to deal with novel methods of disturbing other people's rights
by using the internet as a tool to do so. Further, vagueness is not a ground to declare a statute
unconstitutional if the statute is otherwise legislatively competent and non-arbitrary. He cited
a large number of judgments before us both from this Court and from overseas to buttress his
submissions.
Freedom of Speech and Expression Article 19(1)(a) of the Constitution of India states as
follows:
"Article 19. Protection of certain rights regarding freedom of speech, etc.- (1) All citizens
shall have the right-
(a) to freedom of speech and expression;"
7. Article 19(2) states:
"Article 19. Protection of certain rights regarding freedom of speech, etc.- (2) Nothing in sub-
clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the interests of the sovereignty and integrity of India,
the security of the State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an offence."
8. The Preamble of the Constitution of India inter alia speaks of liberty of thought,
expression, belief, faith and worship. It also says that India is a sovereign democratic
republic. It cannot be over emphasized that when it comes to democracy, liberty of thought
and expression is a cardinal value that is of paramount significance under our constitutional
scheme.
9. Various judgments of this Court have referred to the importance of freedom of speech and
expression both from the point of view of the liberty of the individual and from the point of
view of our democratic form of government. For example, in the early case of Romesh
Thappar v. State of Madras, [1950] S.C.R. 594 at 602, this Court stated that freedom of
speech lay at the foundation of all democratic organizations. In Sakal Papers (P) Ltd. & Ors.
v. Union of India, [1962] 3 S.C.R. 842 at 866, a Constitution Bench of this Court said
freedom of speech and expression of opinion is of paramount importance under a democratic
constitution which envisages changes in the composition of legislatures and governments and
must be preserved. In a separate concurring judgment Beg,J. said, in Bennett Coleman & Co.
& Ors. v. Union of India & Ors., [1973] 2 S.C.R. 757 at 829, that the freedom of speech and
of the press is the Ark of the Covenant of Democracy because public criticism is essential to
the working of its institutions.[2]
10. Equally, in S. Khushboo v. Kanniamal & Anr., (2010) 5 SCC 600 this Court stated, in
paragraph 45 that the importance of freedom of speech and expression though not absolute
Shreya Singhal v. U.O.I (SC) 109

was necessary as we need to tolerate unpopular views. This right requires the free flow of
opinions and ideas essential to sustain the collective life of the citizenry. While an informed
citizenry is a pre-condition for meaningful governance, the culture of open dialogue is
generally of great societal importance.
11. This last judgment is important in that it refers to the "market place of ideas" concept that
has permeated American Law. This was put in the felicitous words of Justice Holmes in his
famous dissent in Abrams v. United States, 250 US 616 (1919), thus:
"But when men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that the
ultimate good desired is better reached by free trade in ideas-that the best test of truth is the
power of thought to get itself accepted in the competition of the market, and that truth is the
only ground upon which their wishes safely can be carried out. That at any rate is the theory
of our Constitution."
12. Justice Brandeis in his famous concurring judgment in Whitney v. California, 71 L. Ed.
1095 said:
"Those who won our independence believed that the final end of the state was to make men
free to develop their faculties, and that in its government the deliberative forces should prevail
over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to
be the secret of happiness and courage to be the secret of liberty. They believed that freedom
to think as you will and to speak as you think are means indispensable to the discovery and
spread of political truth; that without free speech and assembly discussion would be futile;
that with them, discussion affords ordinarily adequate protection against the dissemination of
noxious doctrine; that the greatest menace to freedom is an inert people; that public
discussion is a political duty; and that this should be a fundamental principle of the American
government. They recognized the risks to which all human institutions are subject. But they
knew that order cannot be secured merely through fear of punishment for its infraction; that it
is hazardous to discourage thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting
remedy for evil counsels is good ones. Believing in the power of reason as applied through
public discussion, they eschewed silence coerced by law-the argument of force in its worst
form. Recognizing the occasional tyrannies of governing majorities, they amended the
Constitution so that free speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men
feared witches and burnt women. It is the function of speech to free men from the bondage of
irrational fears. To justify suppression of free speech there must be reasonable ground to fear
that serious evil will result if free speech is practiced. There must be reasonable ground to
believe that the danger apprehended is imminent. There must be reasonable ground to believe
that the evil to be prevented is a serious one. Every denunciation of existing law tends in
some measure to increase the probability that there will be violation of it. Condonation of a
breach enhances the probability. Expressions of approval add to the probability. Propagation
of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking
110 Shreya Singhal v. U.O.I (SC)

heightens it still further. But even advocacy of violation, however reprehensible morally, is
not a justification for denying free speech where the advocacy falls short of incitement and
there is nothing to indicate that the advocacy would be immediately acted on. The wide
difference between advocacy and incitement, between preparation and attempt, between
assembling and conspiracy, must be borne in mind. In order to support a finding of clear and
present danger it must be shown either that immediate serious violence was to be expected or
was advocated, or that the past conduct furnished reason to believe that such advocacy was
then contemplated." (at page 1105, 1106)
13. This leads us to a discussion of what is the content of the expression "freedom of speech
and expression". There are three concepts which are fundamental in understanding the reach
of this most basic of human rights. The first is discussion, the second is advocacy, and the
third is incitement. Mere discussion or even advocacy of a particular cause howsoever
unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy
reaches the level of incitement that Article 19(2) kicks in.[3] It is at this stage that a law may
be made curtailing the speech or expression that leads inexorably to or tends to cause public
disorder or tends to cause or tends to affect the sovereignty& integrity of India, the security of
the State, friendly relations with foreign States, etc. Why it is important to have these three
concepts in mind is because most of the arguments of both petitioners and respondents tended
to veer around the expression "public order".
14. It is at this point that a word needs to be said about the use of American judgments in the
context of Article 19(1)(a). In virtually every significant judgment of this Court, reference has
been made to judgments from across the Atlantic. Is it safe to do so?
15. It is significant to notice first the differences between the US First Amendment and
Article 19(1)(a) read with Article 19(2). The first important difference is the absoluteness of
the U.S. first Amendment - Congress shall make no law which abridges the freedom of
speech. Second, whereas the U.S. First Amendment speaks of freedom of speech and of the
press, without any reference to "expression", Article 19(1)(a) speaks of freedom of speech
and expression without any reference to "the press". Third, under the US Constitution, speech
may be abridged, whereas under our Constitution, reasonable restrictions may be imposed.
Fourth, under our Constitution such restrictions have to be in the interest of eight designated
subject matters - that is any law seeking to impose a restriction on the freedom of speech can
only pass muster if it is proximately related to any of the eight subject matters set out in
Article 19(2).
16. Insofar as the first apparent difference is concerned, the U.S. Supreme Court has never
given literal effect to the declaration that Congress shall make no law abridging the freedom
of speech. The approach of the Court which is succinctly stated in one of the early U.S.
Supreme Court Judgments, continues even today. In Chaplinsky v. New Hampshire, 86 L. Ed.
1031, Justice Murphy who delivered the opinion of the Court put it thus:-
"Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is
well understood that the right of free speech is not absolute at all times and under all
circumstances. There are certain well- defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any Constitutional
Shreya Singhal v. U.O.I (SC) 111

problem. These include the lewd and obscene, the profane, the libelous, and the insulting or
'fighting' words-those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such utterances are no essential
part of any exposition of ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social interest in order
and morality. 'Resort to epithets or personal abuse is not in any proper sense communication
of information or opinion safeguarded by the Constitution, and its punishment as a criminal
act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U.S. 296,
309, 310, 60 S.Ct. 900, 906, 84 L.Ed.1213, 128 A.L.R. 1352." (at page 1035)
17. So far as the second apparent difference is concerned, the American Supreme Court has
included "expression" as part of freedom of speech and this Court has included "the press" as
being covered under Article 19(1)(a), so that, as a matter of judicial interpretation, both the
US and India protect the freedom of speech and expression as well as press freedom. Insofar
as abridgement and reasonable restrictions are concerned, both the U.S. Supreme Court and
this Court have held that a restriction in order to be reasonable must be narrowly tailored or
narrowly interpreted so as to abridge or restrict only what is absolutely necessary. It is only
when it comes to the eight subject matters that there is a vast difference. In the U.S., if there is
a compelling necessity to achieve an important governmental or societal goal, a law abridging
freedom of speech may pass muster. But in India, such law cannot pass muster if it is in the
interest of the general public. Such law has to be covered by one of the eight subject matters
set out under Article 19(2). If it does not, and is outside the pale of 19(2), Indian courts will
strike down such law.
18. Viewed from the above perspective, American judgments have great persuasive value on
the content of freedom of speech and expression and the tests laid down for its infringement.
It is only when it comes to sub- serving the general public interest that there is the world of a
difference. This is perhaps why in Kameshwar Prasad & Ors. v. The State of Bihar & Anr.,
1962 Supp. (3) S.C.R. 369, this Court held:
"As regards these decisions of the American Courts, it should be borne in mind that though
the First Amendment to the Constitution of the United State reading "Congress shall make no
law.... abridging the freedom of speech..." appears to confer no power on the Congress to
impose any restriction on the exercise of the guaranteed right, still it has always been
understood that the freedom guaranteed is subject to the police power
- the scope of which however has not been defined with precision or uniformly. It is on the
basis of the police power to abridge that freedom that the constitutional validity of laws
penalising libels, and those relating to sedition, or to obscene publications etc., has been
sustained. The resultant flexibility of the restrictions that could be validly imposed renders the
American decisions inapplicable to and without much use for resolving the questions arising
under Art. 19(1) (a) or (b) of our Constitution wherein the grounds on which limitations might
be placed on the guaranteed right are set out with definiteness and precision." ( At page 378)
19. But when it comes to understanding the impact and content of freedom of speech, in
Indian Express Newspapers (Bombay) Private Limited & Ors. v. Union of India & Ors.,
(1985) 2 SCR 287, Venkataramiah,J. stated:
112 Shreya Singhal v. U.O.I (SC)

"While examining the constitutionality of a law which is alleged to contravene Article 19 (1)
(a) of the Constitution, we cannot, no doubt, be solely guided by the decisions of the Supreme
Court of the United States of America. But in order to understand the basic principles of
freedom of speech and expression and the need for that freedom in a democratic country, we
may take them into consideration. The pattern of Article 19 (1)
(a) and of Article 19 (1) (g) of our constitution is different from the pattern of the First
Amendment to the American Constitution which is almost absolute in its terms. The rights
guaranteed under Article 19 (1) (a) and Article 19 (1) (g) of the Constitution are to be read
along with clauses (2) and (6) of Article 19 which carve out areas in respect of which valid
legislation can be made." (at page 324)
20. With these prefatory remarks, we will now go to the other aspects of the challenge made
in these writ petitions and argued before us.
A. Article 19(1)(a) -
Section 66A has been challenged on the ground that it casts the net very wide - "all
information" that is disseminated over the internet is included within its reach. It will be
useful to note that Section 2(v) of Information Technology Act, 2000 defines information as
follows:
"2. Definitions.-(1) In this Act, unless the context otherwise requires,-
(v) "Information" includes data, message, text, images, sound, voice, codes, computer
programmes, software and databases or micro film or computer generated micro fiche."
Two things will be noticed. The first is that the definition is an inclusive one. Second, the
definition does not refer to what the content of information can be. In fact, it refers only to the
medium through which such information is disseminated. It is clear, therefore, that the
petitioners are correct in saying that the public's right to know is directly affected by Section
66A. Information of all kinds is roped in - such information may have scientific, literary or
artistic value, it may refer to current events, it may be obscene or seditious. That such
information may cause annoyance or inconvenience to some is how the offence is made out.
It is clear that the right of the people to know - the market place of ideas - which the internet
provides to persons of all kinds is what attracts Section 66A. That the information sent has to
be annoying, inconvenient, grossly offensive etc., also shows that no distinction is made
between mere discussion or advocacy of a particular point of view which may be annoying or
inconvenient or grossly offensive to some and incitement by which such words lead to an
imminent causal connection with public disorder, security of State etc. The petitioners are
right in saying that Section 66A in creating an offence against persons who use the internet
and annoy or cause inconvenience to others very clearly affects the freedom of speech and
expression of the citizenry of India at large in that such speech or expression is directly
curbed by the creation of the offence contained in Section 66A.
In this regard, the observations of Justice Jackson in American Communications Association
v. Douds, 94 L. Ed. 925 are apposite:
"Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the
function of our Government to keep the citizen from falling into error; it is the function of the
Shreya Singhal v. U.O.I (SC) 113

citizen to keep the Government from falling into error. We could justify any censorship only
when the censors are better shielded against error than the censored."
Article 19(2) One challenge to Section 66A made by the petitioners' counsel is that the
offence created by the said Section has no proximate relation with any of the eight subject
matters contained in Article 19(2). We may incidentally mention that the State has claimed
that the said Section can be supported under the heads of public order, defamation, incitement
to an offence and decency or morality.
21. Under our constitutional scheme, as stated earlier, it is not open to the State to curtail
freedom of speech to promote the general public interest. In Sakal Papers (P) Ltd. & Ors. v.
Union of India, [1962] 3 S.C.R. 842, this Court said:
"It may well be within the power of the State to place, in the interest of the general public,
restrictions upon the right of a citizen to carry on business but it is not open to the State to
achieve this object by directly and immediately curtailing any other freedom of that citizen
guaranteed by the Constitution and which is not susceptible of abridgment on the same
grounds as are set out in clause (6) of Article 19. Therefore, the right of freedom of speech
cannot be taken away with the object of placing restrictions on the business activities of a
citizen. Freedom of speech can be restricted only in the interests of the security of the State,
friendly relations with foreign State, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry
on business, be curtailed in the interest of the general public. If a law directly affecting it is
challenged, it is no answer that the restrictions enacted by it are justifiable under clauses (3) to
(6). For, the scheme of Article 19 is to enumerate different freedoms separately and then to
specify the extent of restrictions to which they may be subjected and the objects for securing
which this could be done. A citizen is entitled to enjoy each and every one of the freedoms
together and clause (1) does not prefer one freedom to another. That is the plain meaning of
this clause. It follows from this that the State cannot make a law which directly restricts one
freedom even for securing the better enjoyment of another freedom. All the greater reason,
therefore for holding that the State cannot directly restrict one freedom by placing an
otherwise permissible restriction on another freedom." (at page 863)
22. Before we come to each of these expressions, we must understand what is meant by the
expression "in the interests of". In The Superintendent, Central Prison, Fatehgarh v. Ram
Manohar Lohia, [1960] 2 S.C.R. 821, this Court laid down:
"We do not understand the observations of the Chief Justice to mean that any remote or
fanciful connection between the impugned Act and the public order would be sufficient to
sustain its validity. The learned Chief Justice was only making a distinction between an Act
which expressly and directly purported to maintain public order and one which did not
expressly state the said purpose but left it to be implied there from; and between an Act that
directly maintained public order and that indirectly brought about the same result. The
distinction does not ignore the necessity for intimate connection between the Act and the
public order sought to be maintained by the Act." (at pages 834, 835) "The restriction made
"in the interests of public order" must also have reasonable relation to the object to be
achieved, i.e., the public order. If the restriction has no proximate relationship to the
114 Shreya Singhal v. U.O.I (SC)

achievement of public order, it cannot be said that the restriction is a reasonable restriction
within the meaning of the said clause." (at page 835) "The decision, in our view, lays down
the correct test. The limitation imposed in the interests of public order to be a reasonable
restriction, should be one which has a proximate connection or nexus with public order, but
not one far-fetched, hypothetical or problematical or too remote in the chain of its relation
with the public order..........There is no proximate or even foreseeable connection between
such instigation and the public order sought to be protected under section. We cannot accept
the argument of the learned Advocate General that instigation of a single individual not to pay
tax or dues is a spark which may in the long run ignite a revolutionary movement destroying
public order" (at page 836).
Reasonable Restrictions:
23. This Court has laid down what "reasonable restrictions" means in several cases. In
Chintaman Rao v. The State of Madhya Pradesh, [1950] S.C.R. 759, this Court said:
"The phrase "reasonable restriction" connotes that the limitation imposed on a person in
enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is
required in the interests of the public. The word "reasonable" implies intelligent care and
deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily
or excessively invades the right cannot be said to contain the quality of reasonableness and
unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the
social control permitted by clause (6) of article 19, it must be held to be wanting in that
quality." (at page 763)
24. In State of Madras v. V.G. Row, [1952] S.C.R. 597, this Court said:
"This Court had occasion in Dr. Khare's case (1950) S.C.R. 519 to define the scope of the
judicial review under clause (5) of Article19 where the phrase "imposing reasonable
restriction on the exercise of the right" also occurs and four out of the five Judges
participating in the decision expressed the view (the other Judge leaving the question open)
that both the substantive and the procedural aspects of the impugned restrictive law should be
examined from the point of view of reasonableness; that is to say, the Court should consider
not only factors such as the duration and the extent of the restrictions, but also the
circumstances under which and the manner in which their imposition has been authorised. It
is important in this context to bear in mind that the test of reasonableness, where ever
prescribed, should be applied to each, individual statute impugned and no abstract standard,
or general pattern of reasonableness can be laid down as applicable to all cases. The nature of
the right alleged to have been infringed, the underlying purpose of the restriction imposed, the
extent and urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In
evaluating such elusive factors and forming their own conception of what is reasonable, in all
the circumstances of a given case, it is inevitable that the social philosophy and the scale of
values of the judges participating in the decision should play an important part, and the limit
to their interference with legislative judgment in such cases can only be dictated by their
sense of responsibility and self- restraint and the sobering reflection that the Constitution is
meant not only for people of their way of thinking but for all, and that the majority of the
Shreya Singhal v. U.O.I (SC) 115

elected representatives of the people have, in authorising the imposition of the restrictions,
considered them to be reasonable." (at page 606-607)
25. Similarly, in Mohd. Faruk v. State of Madhya Pradesh & Ors., [1970] 1 S.C.R. 156, this
Court said:
"The Court must in considering the validity of the impugned law imposing a prohibition on
the carrying on of a business or profession, attempt an evaluation of its direct and immediate
impact upon the fundamental rights of the citizens affected thereby and the larger public
interest sought to be ensured in the light of the object sought to be achieved, the necessity to
restrict the citizen's freedom, the inherent pernicious nature of the act prohibited or its
capacity or tendency to be harmful to the general public, the possibility of achieving the
object by imposing a less drastic restraint, and in the absence of exceptional situations such as
the prevalence of a state of emergency-national or local-or the necessity to maintain essential
supplies, or the necessity to stop activities inherently dangerous, the existence of a machinery
to satisfy the administrative authority that no case for imposing the restriction is made out or
that a less drastic restriction may ensure the object intended to be achieved." (at page 161)
26. In Dr. N. B. Khare v. State of Delhi, [1950] S.C.R. 519, a Constitution Bench also spoke
of reasonable restrictions when it comes to procedure. It said:
"While the reasonableness of the restrictions has to be considered with regard to the exercise
of the right, it does not necessarily exclude from the consideration of the Court the question of
reasonableness of the procedural part of the law. It is obvious that if the law prescribes five
years externment or ten years externment, the question whether such period of externment is
reasonable, being the substantive part, is necessarily for the consideration of the court under
clause (5). Similarly, if the law provides the procedure under which the exercise of the right
may be restricted, the same is also for the consideration of the Court, as it has to determine if
the exercise of the right has been reasonably restricted." (at page 524)
27. It was argued by the learned Additional Solicitor General that a relaxed standard of
reasonableness of restriction should apply regard being had to the fact that the medium of
speech being the internet differs from other mediums on several grounds. To appreciate the
width and scope of his submissions, we are setting out his written submission verbatim:
"(i) the reach of print media is restricted to one state or at the most one country while internet
has no boundaries and its reach is global;
(ii) the recipient of the free speech and expression used in a print media can only be literate
persons while internet can be accessed by literate and illiterate both since one click is needed
to download an objectionable post or a video;
(iii) In case of televisions serials [except live shows] and movies, there is a permitted pre-
censorship' which ensures right of viewers not to receive any information which is dangerous
to or not in conformity with the social interest. While in the case of an internet, no such pre-
censorship is possible and each individual is publisher, printer, producer, director and
broadcaster of the content without any statutory regulation;
In case of print media or medium of television and films whatever is truly recorded can only
be published or broadcasted I televised I viewed. While in case of an internet, morphing of
116 Shreya Singhal v. U.O.I (SC)

images, change of voices and many other technologically advance methods to create serious
potential social disorder can be applied.
By the medium of internet, rumors having a serious potential of creating a serious social
disorder can be spread to trillions of people without any check which is not possible in case of
other mediums.
In case of mediums like print media, television and films, it is broadly not possible to invade
privacy of unwilling persons. While in case of an internet, it is very easy to invade upon the
privacy of any individual and thereby violating his right under Article 21 of the Constitution
of India.
By its very nature, in the mediums like newspaper, magazine, television or a movie, it is not
possible to sexually harass someone, outrage the modesty of anyone, use unacceptable filthy
language and evoke communal frenzy which would lead to serious social disorder. While in
the case of an internet, it is easily possible to do so by a mere click of a button without any
geographical limitations and almost in all cases while ensuring anonymity of the offender.
By the very nature of the medium, the width and reach of internet is manifold as against
newspaper and films. The said mediums have inbuilt limitations i.e. a person will have to buy
/ borrow a newspaper and / or will have to go to a theater to watch a movie. For television
also one needs at least a room where a television is placed and can only watch those channels
which he has subscribed and that too only at a time where it is being telecast. While in case of
an internet a person abusing the internet, can commit an offence at any place at the time of his
choice and maintaining his anonymity in almost all cases.
(ix) In case of other mediums, it is impossible to maintain anonymity as a result of which
speech ideal opinions films having serious potential of creating a social disorder never gets
generated since its origin is bound to be known. While in case of an internet mostly its abuse
takes place under the garb of anonymity which can be unveiled only after thorough
investigation.
(x) In case of other mediums like newspapers, television or films, the approach is always
institutionalized approach governed by industry specific ethical norms of self conduct. Each
newspaper / magazine / movie production house / TV Channel will have their own
institutionalized policies in house which would generally obviate any possibility of the
medium being abused. As against that use of internet is solely based upon individualistic
approach of each individual without any check, balance or regulatory ethical norms for
exercising freedom of speech and expression under Article 19[ 1] [a].
(xi) In the era limited to print media and cinematograph; or even in case of publication
through airwaves, the chances of abuse of freedom of expression was less due to inherent
infrastructural and logistical constrains. In the case of said mediums, it was almost impossible
for an individual to create and publish an abusive content and make it available to trillions of
people. Whereas, in the present internet age the said infrastructural and logistical constrains
have disappeared as any individual using even a smart mobile phone or a portable computer
device can create and publish abusive material on its own, without seeking help of anyone
else and make it available to trillions of people by just one click."
Shreya Singhal v. U.O.I (SC) 117

28. As stated, all the above factors may make a distinction between the print and other media
as opposed to the internet and the legislature may well, therefore, provide for separate
offences so far as free speech over the internet is concerned. There is, therefore, an intelligible
differentia having a rational relation to the object sought to be achieved
- that there can be creation of offences which are applied to free speech over the internet alone
as opposed to other mediums of communication. Thus, an Article 14 challenge has been
repelled by us on this ground later in this judgment. But we do not find anything in the
features outlined by the learned Additional Solicitor General to relax the Court's scrutiny of
the curbing of the content of free speech over the internet. While it may be possible to
narrowly draw a Section creating a new offence, such as Section 69A for instance, relatable
only to speech over the internet, yet the validity of such a law will have to be tested on the
touchstone of the tests already indicated above.
29. In fact, this aspect was considered in Secretary Ministry of Information & Broadcasting,
Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161 in para 37, where
the following question was posed:
"The next question which is required to be answered is whether there is any distinction
between the freedom of the print media and that of the electronic media such as radio and
television, and if so, whether it necessitates more restrictions on the latter media."
This question was answered in para 78 thus:
"There is no doubt that since the airwaves/frequencies are a public property and are also
limited, they have to be used in the best interest of the society and this can be done either by a
central authority by establishing its own broadcasting network or regulating the grant of
licences to other agencies, including the private agencies. What is further, the electronic
media is the most powerful media both because of its audio-visual impact and its widest reach
covering the section of the society where the print media does not reach. The right to use the
airwaves and the content of the programmes, therefore, needs regulation for balancing it and
as well as to prevent monopoly of information and views relayed, which is a potential danger
flowing from the concentration of the right to broadcast/telecast in the hands either of a
central agency or of few private affluent broadcasters. That is why the need to have a central
agency representative of all sections of the society free from control both of the Government
and the dominant influential sections of the society. This is not disputed. But to contend that
on that account the restrictions to be imposed on the right under Article 19(1)(a) should be in
addition to those permissible under Article 19(2) and dictated by the use of public resources
in the best interests of the society at large, is to misconceive both the content of the freedom
of speech and expression and the problems posed by the element of public property in, and
the alleged scarcity of, the frequencies as well as by the wider reach of the media. If the right
to freedom of speech and expression includes the right to disseminate information to as wide
a section of the population as is possible, the access which enables the right to be so exercised
is also an integral part of the said right. The wider range of circulation of information or its
greater impact cannot restrict the content of the right nor can it justify its denial. The virtues
of the electronic media cannot become its enemies. It may warrant a greater regulation over
licensing and control and vigilance on the content of the programme telecast. However, this
118 Shreya Singhal v. U.O.I (SC)

control can only be exercised within the framework of Article 19(2) and the dictates of public
interests. To plead for other grounds is to plead for unconstitutional measures. It is further
difficult to appreciate such contention on the part of the Government in this country when
they have a complete control over the frequencies and the content of the programme to be
telecast. They control the sole agency of telecasting. They are also armed with the provisions
of Article 19(2) and the powers of pre-censorship under the Cinematograph Act and Rules.
The only limitation on the said right is, therefore, the limitation of resources and the need to
use them for the benefit of all. When, however, there are surplus or unlimited resources and
the public interests so demand or in any case do not prevent telecasting, the validity of the
argument based on limitation of resources disappears. It is true that to own a frequency for the
purposes of broadcasting is a costly affair and even when there are surplus or unlimited
frequencies, only the affluent few will own them and will be in a position to use it to subserve
their own interest by manipulating news and views. That also poses a danger to the freedom
of speech and expression of the have-nots by denying them the truthful information on all
sides of an issue which is so necessary to form a sound view on any subject. That is why the
doctrine of fairness has been evolved in the US in the context of the private broadcasters
licensed to share the limited frequencies with the central agency like the FCC to regulate the
programming. But this phenomenon occurs even in the case of the print media of all the
countries. Hence the body like the Press Council of India which is empowered to enforce,
however imperfectly, the right to reply. The print media further enjoys as in our country,
freedom from pre-censorship unlike the electronic media."
Public Order
30. In Article 19(2) (as it originally stood) this sub-head was conspicuously absent. Because
of its absence, challenges made to an order made under Section 7 of the Punjab Maintenance
of Public Order Act and to an order made under Section 9 (1)(a) of the Madras Maintenance
of Public Order Act were allowed in two early judgments by this Court. Thus in Romesh
Thappar v. State of Madras, [1950] S.C.R. 594, this Court held that an order made under
Section 9(1)(a) of the Madras Maintenance of Public Order Act (XXIII of 1949) was
unconstitutional and void in that it could not be justified as a measure connected with security
of the State. While dealing with the expression "public order", this Court held that "public
order" is an expression which signifies a state of tranquility which prevails amongst the
members of a political society as a result of the internal regulations enforced by the
Government which they have established.
31. Similarly, in Brij Bhushan & Anr. v. State of Delhi, [1950] S.C.R. 605, an order made
under Section 7 of the East Punjab Public Safety Act, 1949, was held to be unconstitutional
and void for the self-same reason.
32. As an aftermath of these judgments, the Constitution First Amendment added the words
"public order" to Article 19(2).
33. In Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 S.C.R.
821, this Court held that public order is synonymous with public safety and tranquility; it is
the absence of disorder involving breaches of local significance in contradistinction to
national upheavals, such as revolution, civil strife, war, affecting the security of the State.
Shreya Singhal v. U.O.I (SC) 119

This definition was further refined in Dr. Ram Manohar Lohia v. State of Bihar & Ors.,
[1966] 1 S.C.R. 709, where this Court held:
"It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was
said to comprehend disorders of less gravity than those affecting "security of State", "law and
order" also comprehends disorders of less gravity than those affecting "public order". One has
to imagine three concentric circles. Law and order represents the largest circle within which is
the next circle representing public order and the smallest circle represents security of State. It
is then easy to see that an act may affect law and order but not public order just as an act may
affect public order but not security of the State." (at page 746)
34. In Arun Ghosh v. State of West Bengal, [1970] 3 S.C.R. 288, Ram Manohar Lohia's case
was referred to with approval in the following terms:
"In Dr. Ram Manohar Lohia's case this Court pointed out the difference between maintenance
of law and order and its disturbance and the maintenance of public order and its disturbance.
Public order was said to embrace more of the community than law and order. Public order is
the even tempo of the life of the community taking the country as a whole or even a specified
locality. Disturbance of public order is to be distinguished, from acts directed against
individuals which do not disturb the society to the extent of causing a general disturbance of
public tranquility. It is the degree of disturbance and its effect upon the life of the community
in a locality which determines whether the disturbance amounts only to a breach of law and
order. Take for instance, a man stabs another. People may be shocked and even disturbed, but
the life of the community keeps moving at an even tempo, however much one may dislike the
act. Take another case of a town where there is communal tension. A man stabs a member of
the other community. This is an act of a very different sort. Its implications are deeper and it
affects the even tempo of life and public order is jeopardized because the repercussions of the
act embrace large Sections of the community and incite them to make further breaches of the
law and order and to subvert the public order. An act by itself is not determinant of its own
gravity. In its quality it may not differ from another but in its potentiality it may be very
different. Take the case of assault on girls. A guest at a hotel may kiss or make advances to
half a dozen chamber maids. He may annoy them and also the management but he does not
cause disturbance of public order. He may even have a fracas with the friends of one of the
girls but even then it would be a case of breach of law and order only. Take another case of a
man who molests women in lonely places. As a result of his activities girls going to colleges
and schools are in constant danger and fear. Women going for their ordinary business are
afraid of being waylaid and assaulted. The activity of this man in its essential quality is not
different from the act of the other man but in its potentiality and in its effect upon the public
tranquility there is a vast difference. The act of the man who molests the girls in lonely places
causes a disturbance in the even tempo of living which is the first requirement of public order.
He disturbs the society and the community. His act makes all the women apprehensive of
their honour and he can be said to be causing disturbance of public order and not merely
committing individual actions which may be taken note of by the criminal prosecution
agencies. It means therefore that the question whether a man has only committed a breach of
law and order or has acted in a manner likely to cause a disturbance of the public order is a
question of degree and the extent of the reach of the act upon the society. The French
120 Shreya Singhal v. U.O.I (SC)

distinguish law and order and public order by designating the latter as order publique. The
latter expression has been recognised as meaning something more than ordinary maintenance
of law and order. Justice Ramaswami in Writ Petition No. 179 of 1968 drew a line of
demarcation between the serious and aggravated forms of breaches of public order which
affect the community or endanger the public interest at large from minor breaches of peace
which do not affect the public at large. He drew an analogy between public and private
crimes. The analogy is useful but not to be pushed too far. A large number of acts directed
against persons or individuals may total up into a breach of public order. In Dr. Ram Manohar
Lohia's case examples were given by Sarkar, and Hidayatullah, JJ. They show how similar
acts in different contexts affect differently law and order on the one hand and public order on
the other. It is always a question of degree of the harm and its effect upon the community.
The question to ask is: Does it lead to disturbance of the current of life of the community so
as to amount to a disturbance of the public order or does it affect merely an individual leaving
the tranquility of the society undisturbed? This question has to be faced in every case on facts.
There is no formula by which one case can be distinguished from another." (at pages 290 and
291).
35. This decision lays down the test that has to be formulated in all these cases. We have to
ask ourselves the question: does a particular act lead to disturbance of the current life of the
community or does it merely affect an individual leaving the tranquility of society
undisturbed? Going by this test, it is clear that Section 66A is intended to punish any person
who uses the internet to disseminate any information that falls within the sub-clauses of
Section 66A. It will be immediately noticed that the recipient of the written word that is sent
by the person who is accused of the offence is not of any importance so far as this Section is
concerned. (Save and except where under sub-clause (c) the addressee or recipient is deceived
or misled about the origin of a particular message.) It is clear, therefore, that the information
that is disseminated may be to one individual or several individuals. The Section makes no
distinction between mass dissemination and dissemination to one person. Further, the Section
does not require that such message should have a clear tendency to disrupt public order. Such
message need not have any potential which could disturb the community at large. The nexus
between the message and action that may be taken based on the message is conspicuously
absent - there is no ingredient in this offence of inciting anybody to do anything which a
reasonable man would then say would have the tendency of being an immediate threat to
public safety or tranquility. On all these counts, it is clear that the Section has no proximate
relationship to public order whatsoever. The example of a guest at a hotel `annoying' girls is
telling - this Court has held that mere `annoyance' need not cause disturbance of public order.
Under Section 66A, the offence is complete by sending a message for the purpose of causing
annoyance, either `persistently' or otherwise without in any manner impacting public order.
Clear and present danger - tendency to affect.
36. It will be remembered that Justice Holmes in Schenck v. United States, 63 L. Ed. 470
enunciated the clear and present danger test as follows:
"...The most stringent protection of free speech would not protect a man in falsely shouting
fire in a theatre and causing a panic. It does not even protect a man from an injunction against
uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co.,
Shreya Singhal v. U.O.I (SC) 121

221 U. S. 418, 439, 31 Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. The question in
every case is whether the words used are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree." (At page 473, 474)
37. This was further refined in Abrams v. Unites States 250 U.S. 616 (1919), this time in a
Holmesian dissent, to be clear and imminent danger. However, in most of the subsequent
judgments of the U.S. Supreme Court, the test has been understood to mean to be "clear and
present danger". The test of "clear and present danger" has been used by the U.S. Supreme
Court in many varying situations and has been adjusted according to varying fact situations. It
appears to have been repeatedly applied, see- Terminiello v. City of Chicago 93 L. Ed. 1131
(1949) at page 1134-1135, Brandenburg v. Ohio 23 L. Ed. 2d 430 (1969) at 434-435 & 436,
Virginia v. Black 155 L. Ed. 2d 535 (2003) at page 551, 552 and 553[4].
38. We have echoes of it in our law as well S. Rangarajan v. P. Jagjivan& Ors., (1989) 2 SCC
574 at paragraph 45:
"45. The problem of defining the area of freedom of expression when it appears to conflict
with the various social interests enumerated under Article 19(2) may briefly be touched upon
here. There does indeed have to be a compromise between the interest of freedom of
expression and special interests. But we cannot simply balance the two interests as if they are
of equal weight. Our commitment of freedom of expression demands that it cannot be
suppressed unless the situations created by allowing the freedom are pressing and the
community interest is endangered. The anticipated danger should not be remote, conjectural
or far-fetched. It should have proximate and direct nexus with the expression. The expression
of thought should be intrinsically dangerous to the public interest. In other words, the
expression should be inseparably locked up with the action contemplated like the equivalent
of a "spark in a powder keg".
39. This Court has used the expression "tendency" to a particular act. Thus, in State of Bihar
v. Shailabala Devi, [1952] S.C.R. 654, an early decision of this Court said that an article, in
order to be banned must have a tendency to excite persons to acts of violence (at page 662-
663). The test laid down in the said decision was that the article should be considered as a
whole in a fair free liberal spirit and then it must be decided what effect it would have on the
mind of a reasonable reader. (at pages 664-665)
40. In Ramji Lal Modi v. The State of U.P., [1957] S.C.R. 860 at page 867, this court upheld
Section 295A of the Indian Penal Code only because it was read down to mean that
aggravated forms of insults to religion must have a tendency to disrupt public order.
Similarly, in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) S.C.R. 769, Section 124A of
the Indian Penal Code was upheld by construing it narrowly and stating that the offence
would only be complete if the words complained of have a tendency of creating public
disorder by violence. It was added that merely creating disaffection or creating feelings of
enmity in certain people was not good enough or else it would violate the fundamental right
of free speech under Article 19(1)(a). Again, in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar
Kashinath Kunte & Ors., 1996 (1) SCC 130, Section 123 (3A) of the Representation of
122 Shreya Singhal v. U.O.I (SC)

People Act was upheld only if the enmity or hatred that was spoken about in the Section
would tend to create immediate public disorder and not otherwise.
41. Viewed at either by the standpoint of the clear and present danger test or the tendency to
create public disorder, Section 66A would not pass muster as it has no element of any
tendency to create public disorder which ought to be an essential ingredient of the offence
which it creates.
Defamation
42. Defamation is defined in Section 499 of the Penal Code as follows:
"499. Defamation.-Whoever, by words either spoken or intended to be read, or by signs or by
visible representations, makes or publishes any imputation concerning any person intending
to harm, or knowing or having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases hereinafter excepted, to defame that
person.
Explanation 1.-It may amount to defamation to impute anything to a deceased person, if the
imputation would harm the reputation of that person if living, and is intended to be hurtful to
the feelings of his family or other near relatives.
Explanation 2.-It may amount to defamation to make an imputation concerning a company or
an association or collection of persons as such.
Explanation 3.-An imputation in the form of an alternative or expressed ironically, may
amount to defamation.
Explanation 4.-No imputation is said to harm a person's reputation, unless that imputation
directly or indirectly, in the estimation of others, lowers the moral or intellectual character of
that person, or lowers the character of that person in respect of his caste or of his calling, or
lowers the credit of that person, or causes it to be believed that the body of that person is in a
loathsome state, or in a state generally considered as disgraceful."
43. It will be noticed that for something to be defamatory, injury to reputation is a basic
ingredient. Section 66A does not concern itself with injury to reputation. Something may be
grossly offensive and may annoy or be inconvenient to somebody without at all affecting his
reputation. It is clear therefore that the Section is not aimed at defamatory statements at all.
Incitement to an offence:
44. Equally, Section 66A has no proximate connection with incitement to commit an offence.
Firstly, the information disseminated over the internet need not be information which
"incites" anybody at all. Written words may be sent that may be purely in the realm of
"discussion" or "advocacy" of a "particular point of view". Further, the mere causing of
annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing
character are not offences under the Penal Code at all. They may be ingredients of certain
offences under the Penal Code but are not offences in themselves. For these reasons, Section
66A has nothing to do with "incitement to an offence". As Section 66A severely curtails
information that may be sent on the internet based on whether it is grossly offensive,
annoying, inconvenient, etc. and being unrelated to any of the eight subject matters under
Shreya Singhal v. U.O.I (SC) 123

Article 19(2) must, therefore, fall foul of Article 19(1)(a), and not being saved under Article
19(2), is declared as unconstitutional.
Decency or Morality
45. This Court in Ranjit Udeshi v. State of Maharashtra [1965] 1 S.C.R. 65 took a rather
restrictive view of what would pass muster as not being obscene. The Court followed the test
laid down in the old English judgment in Hicklin's case which was whether the tendency of
the matter charged as obscene is to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands a publication of this sort may fall. Great strides
have been made since this decision in the UK, United States as well as in our country. Thus,
in Director General, Directorate General of Doordarshan v. Anand Patwardhan, 2006 (8) SCC
433, this Court noticed the law in the United States and said that a material may be regarded
as obscene if the average person applying contemporary community standards would find that
the subject matter taken as a whole appeals to the prurient interest and that taken as a whole it
otherwise lacks serious literary artistic, political, educational or scientific value (see Para
31).
46. In a recent judgment of this Court, Aveek Sarkar v. State of West Bengal, 2014 (4) SCC
257, this Court referred to English, U.S. and Canadian judgments and moved away from the
Hicklin test and applied the contemporary community standards test.
47. What has been said with regard to public order and incitement to an offence equally
applies here. Section 66A cannot possibly be said to create an offence which falls within the
expression 'decency' or 'morality' in that what may be grossly offensive or annoying under the
Section need not be obscene at all - in fact the word 'obscene' is conspicuous by its absence in
Section 66A.
48. However, the learned Additional Solicitor General asked us to read into Section 66A each
of the subject matters contained in Article 19(2) in order to save the constitutionality of the
provision. We are afraid that such an exercise is not possible for the simple reason that when
the legislature intended to do so, it provided for some of the subject matters contained in
Article 19(2) in Section 69A. We would be doing complete violence to the language of
Section 66A if we were to read into it something that was never intended to be read into it.
Further, he argued that the statute should be made workable, and the following should be read
into Section 66A:
"(i) Information which would appear highly abusive, insulting, pejorative, offensive by
reasonable person in general, judged by the standards of an open and just multi-caste, multi-
religious, multi racial society;
Director of Public Prosecutions v. Collins - (2006) 1 WLR 2223 @ para 9 and 21Connolly v.
Director of Public Prosecutions reported in [2008] 1 W.L.R. 276/2007 [1] All ER 1012 House
of Lords Select Committee 1st Report of Session 2014-2015 on Communications titled as
"Social Media And Criminal Offences" @ pg 260 of compilation of judgments Vol I Part B
(ii) Information which is directed to incite or can produce imminent lawless action
Brandenburg v. Ohio 395 U.S. 444 (1969);
(iii) Information which may constitute credible threats of violence to the person or damage;
124 Shreya Singhal v. U.O.I (SC)

(iv) Information which stirs the public to anger, invites violent disputes brings about
condition of violent unrest and disturbances;
Terminiello v. Chicago 337 US 1 (1949)
(v) Information which advocates or teaches the duty, necessity or proprietary of violence as a
means of accomplishing political, social or religious reform and/or justifies commissioning of
violent acts with an intent to exemplify glorify such violent means to accomplish political,
social, economical or religious reforms [Whitney vs. California 274 US 357];
(vi) Information which contains fighting or abusive material;
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
(vii) Information which promotes hate speech i.e. Information which propagates hatred
towards individual or a groups, on the basis of race, religion, religion, casteism, ethnicity,
Information which is intended to show the supremacy of one particular religion/race/caste by
making disparaging, abusive and/or highly inflammatory remarks against religion/race/caste.
Information depicting religious deities, holy persons, holy symbols, holy books which are
created to insult or to show contempt or lack of reverence for such religious deities, holy
persons, holy symbols, holy books or towards something which is considered sacred or
inviolable.
(viii) Satirical or iconoclastic cartoon and caricature which fails the test laid down in Hustler
Magazine, Inc. v. Falwell 485 U.S. 46 (1988)
(ix) Information which glorifies terrorism and use of drugs;
(x) Information which infringes right of privacy of the others and includes acts of cyber
bullying, harassment or stalking.
(xi) Information which is obscene and has the tendency to arouse feeling or revealing an overt
sexual desire and should be suggestive of deprave mind and designed to excite sexual passion
in persons who are likely to see it.
Aveek Sarkar and Anr. vs. State of West Bengal and Ors. (2014) 4 SCC 257.
(xii) Context and background test of obscenity. Information which is posted in such a context
or background which has a consequential effect of outraging the modesty of the pictured
individual.
Aveek Sarkar and Anr. vs. State of West Bengal and Ors. (2014) 4 SCC 257."
49. What the learned Additional Solicitor General is asking us to do is not to read down
Section 66A - he is asking for a wholesale substitution of the provision which is obviously not
possible.
Vagueness
50. Counsel for the petitioners argued that the language used in Section 66A is so vague that
neither would an accused person be put on notice as to what exactly is the offence which has
been committed nor would the authorities administering the Section be clear as to on which
side of a clearly drawn line a particular communication will fall.
Shreya Singhal v. U.O.I (SC) 125

51. We were given Collin's dictionary, which defined most of the terms used in Section 66A,
as follows:
"Offensive:-
Unpleasant or disgusting, as to the senses Causing anger or annoyance; insulting For the
purpose of attack rather than defence.
Menace:-
To threaten with violence, danger, etc. A threat of the act of threatening Something menacing;
a source of danger A nuisance Annoy:-
To irritate or displease To harass with repeated attacks Annoyance The feeling of being
annoyed The act of annoying.
Inconvenience The state of quality of being inconvenient Something inconvenient; a
hindrance, trouble, or difficulty Danger:-
The state of being vulnerable to injury, loss, or evil risk A person or a thing that may cause
injury pain etc. Obstruct:-
To block (a road a passageway, etc.) with an obstacle To make (progress or activity) difficult.
To impede or block a clear view of.
Obstruction:- a person or a thing that obstructs.
Insult:-
To treat, mention, or speak to rudely; offend; affront To assault; attack An offensive or
contemptuous remark or action; affront; slight A person or thing producing the effect of an
affront = some television is an insult to intelligence An injury or trauma."
52. The U.S. Supreme Court has repeatedly held in a series of judgments that where no
reasonable standards are laid down to define guilt in a Section which creates an offence, and
where no clear guidance is given to either law abiding citizens or to authorities and courts, a
Section which creates an offence and which is vague must be struck down as being arbitrary
and unreasonable. Thus, in Musser v. Utah, 92 L. Ed. 562, a Utah statute which outlawed
conspiracy to commit acts injurious to public morals was struck down.
53. In Winters v. People of State of New York, 92 L. Ed. 840, a New York Penal Law read as
follows:-
"1141. Obscene prints and articles
1. A person......who,
2. Prints, utters, publishes, sells, lends, gives away, distributes or shows, or has in his
possession with intent to sell, lend, give away, distribute or show, or otherwise offers for sale,
loan, gift or distribution, any book, pamphlet, magazine, newspaper or other printed paper
devoted to the publication, and principally made up of criminal news, police reports, or
accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or
crime;.....................................................
126 Shreya Singhal v. U.O.I (SC)

'Is guilty of a misdemeanor, .....'" (at page 846) The court in striking down the said statute
held:
"The impossibility of defining the precise line between permissible uncertainty in statutes
caused by describing crimes by words well understood through long use in the criminal law -
obscene, lewd, lascivious, filthy, indecent or disgusting-and the unconstitutional vagueness
that leaves a person uncertain as to the kind of prohibited conduct-massing stories to incite
crime-has resulted in three arguments of this case in this Court. The legislative bodies in
draftsmanship obviously have the same difficulty as do the judicial in interpretation.
Nevertheless despite the difficulties, courts must do their best to determine whether or not the
vagueness is of such a character 'that men of common intelligence must necessarily guess at
its meaning.' Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed.
322. The entire text of the statute or the subjects dealt with may furnish an adequate standard.
The present case as to a vague statute abridging free speech involves the circulation of only
vulgar magazines. The next may call for decision as to free expression of political views in
the light of a statute intended to punish subversive activities.
The subsection of the New York Penal Law, as now interpreted by the Court of Appeals
prohibits distribution of a magazine principally made up of criminal news or stories of deeds
of bloodshed, or lust, so massed as to become vehicles for inciting violent and depraved
crimes against the person. But even considering the gloss put upon the literal meaning by the
Court of Appeals' restriction of the statute to collections of stories 'so massed as to become
vehicles for inciting violent and depraved crimes against the person * * * not necessarily * * *
sexual passion,' we find the specification of publications, prohibited from distribution, too
uncertain and indefinite to justify the conviction of this petitioner. Even though all detective
tales and treatises on criminology are not forbidden, and though publications made up of
criminal deeds not characterized by bloodshed or lust are omitted from the interpretation of
the Court of Appeals, we think fair use of collections of pictures and stories would be
interdicted because of the utter impossibility of the actor or the trier to know where this new
standard of guilt would draw the line between the allowable and the forbidden publications.
No intent or purpose is required- no indecency or obscenity in any sense heretofore known to
the law. 'So massed as to incite to crime' can become meaningful only by concrete instances.
This one example is not enough. The clause proposes to punish the printing and circulation of
publications that courts or juries may think influence generally persons to commit crime of
violence against the person. No conspiracy to commit a crime is required. See Musser v. State
of Utah, 68 S.Ct. 397, this Term. It is not an effective notice of new crime. The clause has no
technical or common law meaning. Nor can light as to the meaning be gained from the section
as a whole or the Article of the Penal Law under which it appears. As said in the Cohen
Grocery Co. case, supra, 255 U.S. at page 89, 41 S.Ct. at page 300, 65 L.Ed. 516, 14 A.L.R.
1045:
'It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can
foresee and the result of which no one can foreshadow or adequately guard against.' The
statute as construed by the Court of Appeals does not limit punishment to the indecent and
obscene, as formerly understood. When stories of deeds of bloodshed, such as many in the
accused magazines, are massed so as to incite to violent crimes, the statute is violated. it does
Shreya Singhal v. U.O.I (SC) 127

not seem to us that an honest distributor of publications could know when he might be held to
have ignored such a prohibition. Collections of tales of war horrors, otherwise
unexceptionable, might well be found to be 'massed' so as to become 'vehicles for inciting
violent and depraved crimes.' Where a statute is so vague as to make criminal an innocent act,
a conviction under it cannot be sustained. Herndon v. Lowry, 301 U.S. 242, 259, 57 S.Ct.
732, 739, 81 L.Ed. 1066." (at page 851-852)
54. In Burstyn v. Wilson, 96 L. Ed. 1098, sacrilegious writings and utterances were outlawed.
Here again, the U.S. Supreme Court stepped in to strike down the offending Section stating:
"It is not a sufficient answer to say that 'sacrilegious' is definite, because all subjects that in
any way might be interpreted as offending the religious beliefs of any one of the 300 sects of
the United States are banned in New York. To allow such vague, undefinable powers of
censorship to be exercised is bound to have stultifying consequences on the creative process
of literature and art-for the films are derived largely from literature. History does not
encourage reliance on the wisdom and moderation of the censor as a safeguard in the exercise
of such drastic power over the minds of men. We not only do not know but cannot know what
is condemnable by 'sacrilegious.' And if we cannot tell, how are those to be governed by the
statute to tell? (at page 1121)
55. In City of Chicago v. Morales et al, 527 U.S. 41 (1999), a Chicago Gang Congregation
Ordinance prohibited criminal street gang members from loitering with one another or with
other persons in any public place for no apparent purpose. The Court referred to an earlier
judgment in United States v. Reese 92 U.S. 214 (1875) at 221 in which it was stated that the
Constitution does not permit a legislature to set a net large enough to catch all possible
offenders and leave it to the Court to step in and say who could be rightfully detained and
who should be set at liberty. It was held that the broad sweep of the Ordinance violated the
requirement that a legislature needs to meet: to establish minimum guidelines to govern law
enforcement. As the impugned Ordinance did not have any such guidelines, a substantial
amount of innocent conduct would also be brought within its net, leading to its
unconstitutionality.
56. It was further held that a penal law is void for vagueness if it fails to define the criminal
offence with sufficient definiteness. Ordinary people should be able to understand what
conduct is prohibited and what is permitted. Also, those who administer the law must know
what offence has been committed so that arbitrary and discriminatory enforcement of the law
does not take place.
57. Similarly, in Grayned v. City of Rockford, 33 L.Ed. 2d. 222, the State of Illinois provided
in an anti noise ordinance as follows:
"'(N)o person, while on public or private grounds adjacent to any building in which a school
or any class thereof is in session, shall willfully make or assist in the making of any noise or
diversion which disturbs or tends to disturb the peace or good order of such school session or
class thereof. . . .' Code of Ordinances, c. 28, 19.2(a)."
The law on the subject of vagueness was clearly stated thus:
128 Shreya Singhal v. U.O.I (SC)

"It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined. Vague laws offend several important values. First,
because we assume that man is free to steer between lawful and unlawful conduct, we insist
that laws give the person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap the innocent by not
providing fair warning. Second, if arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for those who apply them. A vague law
impermissibly delegates basic policy matters to policemen, judges, and juries for resolution
on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory
application. Third, but related, where a vague statute 'abut(s) upon sensitive areas of basic
First Amendment freedoms, it 'operates to inhibit the exercise of (those) freedoms.' Uncertain
meanings inevitably lead citizens to "steer far wider of the unlawful zone' . . . than if the
boundaries of the forbidden areas were clearly marked.'"(at page 227-228)
58. The anti noise ordinance was upheld on facts in that case because it fixed the time at
which noise disrupts school activity - while the school is in session - and at a fixed place -
'adjacent' to the school.
59. Secondly, there had to be demonstrated a causality between disturbance that occurs and
the noise or diversion. Thirdly, acts have to be willfully done. It is important to notice that the
Supreme Court specifically held that "undesirables" or their "annoying conduct" may not be
punished. It is only on these limited grounds that the said Ordinance was considered not to be
impermissibly vague.
60. In Reno, Attorney General of the United States, et al. v. American Civil Liberties Union et
al., 521 U.S. 844 (1997), two provisions of the Communications Decency Act of 1996 which
sought to protect minors from harmful material on the internet were adjudged
unconstitutional. This judgment is a little important for two basic reasons - that it deals with a
penal offence created for persons who use the internet as also for the reason that the statute
which was adjudged unconstitutional uses the expression "patently offensive" which comes
extremely close to the expression "grossly offensive" used by the impugned Section 66A.
Section 223(d), which was adjudged unconstitutional, is set out hereinbelow:-
"223 (d) Whoever-
"(1) in interstate or foreign communications knowingly-
(A) uses an interactive computer service to send to a specific person or persons under 18
years of age, or (B) uses any interactive computer service to display in a manner available to a
person under 18 years of age, "any comment, request, suggestion, proposal, image, or other
communication that, in context, depicts or describes, in terms patently offensive as measured
by contemporary community standards, sexual or excretory activities or organs, regardless of
whether the user of such service placed the call or initiated the communication; or (2)
knowingly permits any telecommunications facility under such person's control to be used for
an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be
fined under Title 18, or imprisoned not more than two years, or both." (at page 860)
Interestingly, the District Court Judge writing of the internet said:
Shreya Singhal v. U.O.I (SC) 129

"[i]t is no exaggeration to conclude that the Internet has achieved, and continues to achieve,
the most participatory marketplace of mass speech that this country - and indeed the world -
as yet seen. The plaintiffs in these actions correctly describe the 'democratizing' effects of
Internet communication: individual citizens of limited means can speak to a worldwide
audience on issues of concern to them. Federalists and Anti- federalists may debate the
structure of their government nightly, but these debates occur in newsgroups or chat rooms
rather than in pamphlets. Modern- day Luthers still post their theses, but to electronic
bulletins boards rather than the door of the Wittenberg Schlosskirche. More mundane (but
from a constitutional perspective, equally important) dialogue occurs between aspiring artists,
or French cooks, or dog lovers, or fly fishermen." 929 F. Supp. At 881. (at page 425)
61. The Supreme Court held that the impugned statute lacked the precision that the first
amendment required when a statute regulates the content of speech. In order to deny minors
access to potentially harmful speech, the impugned Act effectively suppresses a large amount
of speech that adults have a constitutional right to receive and to address to one another.
62. Such a burden on adult speech is unacceptable if less restrictive alternatives would be as
effective in achieving the legitimate purpose that the statute was enacted to serve. It was held
that the general undefined term "patently offensive" covers large amounts of non-
pornographic material with serious educational or other value and was both vague and over
broad.
It was, thus, held that the impugned statute was not narrowly tailored and would fall foul of
the first amendment.
63. In Federal Communications Commission v. Fox Television Stations, 132 S.Ct. 2307, it
was held:
"A fundamental principle in our legal system is that laws which regulate persons or entities
must give fair notice of conduct that is forbidden or required. See Connally v. General Constr.
Co., 269 U. S. 385, 391 (1926) ("[A] statute which either forbids or requires the doing of an
act in terms so vague that men of common intelligence must necessarily guess at its meaning
and differ as to its application, violates the first essential of due process of law");
Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972) ("Living under a rule of law entails
various suppositions, one of which is that '[all persons] are entitled to be informed as to what
the State commands or forbids'" (quoting Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939)
(alteration in original))). This requirement of clarity in regulation is essential to the
protections provided by the Due Process Clause of the Fifth Amendment. See United States v.
Williams, 553 U. S. 285, 304 (2008). It requires the invalidation of laws that are
impermissibly vague. A conviction or punishment fails to comply with due process if the
statute or regulation under which it is obtained "fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement." Ibid. As this Court has explained, a
regulation is not vague because it may at times be difficult to prove an incriminating fact but
rather because it is unclear as to what fact must be proved. See id., at 306.
Even when speech is not at issue, the void for vagueness doctrine addresses at least two
connected but discrete due process concerns: first, that regulated parties should know what is
130 Shreya Singhal v. U.O.I (SC)

required of them so they may act accordingly; second, precision and guidance are necessary
so that those enforcing the law do not act in an arbitrary or discriminatory way. See Grayned
v. City of Rockford, 408 U. S. 104, 108-109 (1972). When speech is involved, rigorous
adherence to those requirements is necessary to ensure that ambiguity does not chill protected
speech."(at page 2317)
64. Coming to this Court's judgments, in State of Madhya Pradesh v. Baldeo Prasad, [1961] 1
S.C.R. 970 an inclusive definition of the word "goonda" was held to be vague and the offence
created by Section 4A of the Goondas Act was, therefore, violative of Article 19(1)(d) and (e)
of the Constitution. It was stated:
"Incidentally it would also be relevant to point out that the definition of the word "goonda"
affords no assistance in deciding which citizen can be put under that category. It is an
inclusive definition and it does not indicate which tests have to be applied in deciding whether
a person falls in the first part of the definition. Recourse to the dictionary meaning of the
word would hardly be of any assistance in this matter. After all it must be borne in mind that
the Act authorises the District Magistrate to deprive a citizen of his fundamental right under
Art. 19(1)(d) and (e), and though the object of the Act and its purpose would undoubtedly
attract the provisions of Art. 19(5) care must always be taken in passing such acts that they
provide sufficient safeguards against casual, capricious or even malicious exercise of the
powers conferred by them. It is well known that the relevant provisions of the Act are initially
put in motion against a person at a lower level than the District magistrate, and so it is always
necessary that sufficient safeguards should be provided by the Act to protect the fundamental
rights of innocent citizens and to save them from unnecessary harassment. That is why we
think the definition of the word "goonda" should have given necessary assistance to the
District Magistrate in deciding whether a particular citizen falls under the category of goonda
or not; that is another infirmity in the Act. As we have already pointed out s. 4-A suffers from
the same infirmities as s. 4.
Having regard to the two infirmities in Sections 4, 4-A respectively we do not think it would
be possible to accede to the argument of the Learned Advocate-General that the operative
portion of the Act can fall under Art. 19(5) of the Constitution. The person against whom
action can be taken under the Act is not entitled to know the source of the information
received by the District Magistrate; he is only told about his prejudicial activities on which
the satisfaction of the District Magistrate is based that action should be taken against him
under s.4 or s. 4-A. In such a case it is absolutely essential that the Act must clearly indicate
by a proper definition or otherwise when and under what circumstances a person can be called
a goonda, and it must impose an obligation on the District Magistrate to apply his mind to the
question as to whether the person against whom complaints are received is such a goonda or
not. It has been urged before us that such an obligation is implicit in Sections 4 and 4-A. We
are, however, not impressed by this argument. Where a statute empowers the specified
authorities to take preventive action against the citizens it is essential that it should expressly
make it a part of the duty of the said authorities to satisfy themselves about the existence of
what the statute regards as conditions precedent to the exercise of the said authority. If the
statute is silent in respect of one of such conditions precedent it undoubtedly constitutes a
serious infirmity which would inevitably take it out of the provisions of Art. 19(5). The result
Shreya Singhal v. U.O.I (SC) 131

of this infirmity is that it has left to the unguided and unfettered discretion of the authority
concerned to treat any citizen as a goonda. In other words, the restrictions which it allows to
be imposed on the exercise of the fundamental right of a citizen guaranteed by Art. 19(1)(d)
and (e) must in the circumstances be held to be unreasonable. That is the view taken by the
High court and we see no reason to differ from it." (at pages 979, 980)
65. At one time this Court seemed to suggest that the doctrine of vagueness was no part of the
Constitutional Law of India. That was dispelled in no uncertain terms in K.A. Abbas v. The
Union of India & Another, [1971] 2 S.C.R. 446:
"This brings us to the manner of the exercise of control and restriction by the directions. Here
the argument is that most of the regulations are vague and further that they leave no scope for
the exercise of creative genius in the field of art. This poses the first question before us
whether the 'void for vagueness' doctrine is applicable. Reliance in this connection is placed
on Municipal Committee Amritsar and Anr. v. The State of Rajasthan . In that case a Division
Bench of this Court lays down that an Indian Act cannot be declared invalid on the ground
that it violates the due process clause or that it is vague......" (at page 469) "These
observations which are clearly obiter are apt to be too generally applied and need to be
explained. While it is true that the principles evolved by the Supreme Court of the United
States of America in the application of the Fourteenth Amendment were eschewed in our
Constitution and instead the limits of restrictions on each fundamental right were indicated in
the clauses that follow the first clause of the nineteenth article, it cannot be said as an absolute
principle that no law will be considered bad for sheer vagueness. There is ample authority for
the proposition that a law affecting fundamental rights may be so considered. A very pertinent
example is to be found in State of Madhya Pradesh and Anr. v. Baldeo Prasad, 1961 (1) SCR
970 where the Central Provinces and Berar Goondas Act 1946 was declared void for
uncertainty. The condition for the application of Sections 4 and 4A was that the person sought
to be proceeded against must be a goonda but the definition of goonda in the Act indicated no
tests for deciding which person fell within the definition. The provisions were therefore held
to be uncertain and vague.
The real rule is that if a law is vague or appears to be so, the court must try to construe it, as
far as may be, and language permitting, the construction sought to be placed on it, must be in
accordance with the intention of the legislature. Thus if the law is open to diverse
construction, that construction which accords best with the intention of the legislature and
advances the purpose of legislation, is to be preferred. Where however the law admits of no
such construction and the persons applying it are in a boundless sea of uncertainty and the law
prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution
as was done in the case of the Goonda Act. This is not application of the doctrine of due
process. The invalidity arises from the probability of the misuse of the law to the detriment of
the individual. If possible, the Court instead of striking down the law may itself draw the line
of demarcation where possible but this effort should be sparingly made and only in the
clearest of cases." (at pages 470, 471)
66. Similarly, in Harakchand Ratanchand Banthia & Ors. v. Union of India& Ors., 1969 (2)
SCC 166, Section 27 of the Gold Control Act was struck down on the ground that the
132 Shreya Singhal v. U.O.I (SC)

conditions imposed by it for the grant of renewal of licences are uncertain, vague and
unintelligible. The Court held:
"21. We now come to Section 27 of the Act which relates to licensing of dealers. It was stated
on behalf of the petitioners that the conditions imposed by sub-section (6) of Section 27 for
the grant or renewal of licences are uncertain, vague and unintelligible and consequently wide
and unfettered power was conferred upon the statutory authorities in the matter of grant or
renewal of licence. In our opinion this contention is well founded and must be accepted as
correct. Section 27(6)(a) states that in the matter of issue or renewal of licences the
Administrator shall have regard to "the number of dealers existing in the region in which the
applicant intends to carry on business as a dealer". But the word "region" is nowhere defined
in the Act. Similarly Section 27(6)(b) requires the Administrator to have regard to "the
anticipated demand, as estimated by him, for ornaments in that region." The expression
"anticipated demand" is a vague expression which is not capable of objective assessment and
is bound to lead to a great deal of uncertainty. Similarly the expression "suitability of the
applicant" in Section 27(6)(e) and "public interest" in Section 27(6)(g) do not provide any
objective standard or norm or guidance. For these reasons it must be held that clauses
(a),(d),(e) and (g) of Section 27(6) impose unreasonable restrictions on the fundamental right
of the petitioner to carry on business and are constitutionally invalid. It was also contended
that there was no reason why the conditions for renewal of licence should be as rigorous as
the conditions for initial grant of licence. The requirement of strict conditions for the renewal
of licence renders the entire future of the business of the dealer uncertain and subjects it to the
caprice and arbitrary will of the administrative authorities. There is justification for this
argument and the requirement of Section 26 of the Act imposing the same conditions for the
renewal of the licence as for the initial grant appears to be unreasonable. In our opinion
clauses (a), (b), (e) and (g) are inextricably bound up with the other clauses of Section 27(6)
and form part of a single scheme. The result is that clauses (a), (b), (c), (e) and (g) are not
severable and the entire Section 27(6) of the Act must be held invalid. Section 27(2)(d) of the
Act states that a valid licence issued by the Administrator "may contain such conditions,
limitations and restrictions as the Administrator may think fit to impose and different
conditions, limitations and restrictions may be imposed for different classes of dealers". On
the face of it, this sub- section confers such wide and vague power upon the Administrator
that it is difficult to limit its scope. In our opinion Section 27(2)(d) of the Act must be struck
down as an unreasonable restriction on the fundamental right of the petitioners to carry on
business. It appears, however, to us that if Section 27(2)(d) and Section 27(6) of the Act are
invalid the licensing scheme contemplated by the rest of Section 27 of the Act cannot be
worked in practice. It is, therefore, necessary for Parliament to enact fresh legislation
imposing appropriate conditions and restrictions for the grant and renewal of licences to
dealers. In the alternative the Central Government may make appropriate rules for the same
purpose in exercise of its rule-making power under Section 114 of the Act."
67. In A.K. Roy & Ors. v. Union of India & Ors., [1982] 2 S.C.R. 272, a part of Section 3 of
the National Security Ordinance was read down on the ground that "acting in any manner
prejudicial to the maintenance of supplies and services essential to the community" is an
expression so vague that it is capable of wanton abuse. The Court held:
Shreya Singhal v. U.O.I (SC) 133

"What we have said above in regard to the expressions 'defence of India', 'security of India',
'security of the State' and 'relations of India with foreign powers' cannot apply to the
expression "acting in any manner prejudicial to the maintenance of supplies and services
essential to the community" which occurs in Section 3(2) of the Act. Which supplies and
services are essential to the community can easily be defined by the legislature and indeed,
legislations which regulate the prices and possession of essential commodities either
enumerate those commodities or confer upon the appropriate Government the power to do so.
In the absence of a definition of 'supplies and services essential to the community', the
detaining authority will be free to extend the application of this clause of sub-section (2) to
any commodities or services the maintenance of supply of which, according to him, is
essential to the community.
But that is not all. The Explanation to sub-section (2) gives to the particular phrase in that
sub-section a meaning which is not only uncertain but which, at any given point of time, will
be difficult to ascertain or fasten upon. According to the Explanation, no order of detention
can be made under the National Security Act on any ground on which an order of detention
may be made under the Prevention of Blackmarketing and Maintenance of Supplies of
Essential Commodities Act, 1980. The reason for this, which is stated in the Explanation
itself, is that for the purposes of sub-section (2), "acting in any manner prejudicial to the
maintenance of supplies essential to the community" does not include "acting in any manner
prejudicial to the maintenance of supplies of commodities essential to the community" as
defined in the Explanation to sub-section (1) of Section 3 of the Act of 1980. Clauses (a) and
(b) of the Explanation to Section 3(1) of the Act of 1980 exhaust almost the entire range of
essential commodities. Clause (a) relates to committing or instigating any person to commit
any offence punishable under the Essential Commodities Act, 10 of 1955, or under any other
law for the time being in force relating to the control of the production, supply or distribution
of, or trade and commerce in, any commodity essential to the community. Clause (b) of the
Explanation to Section 3(1) of the Act of 1980 relates to dealing in any commodity which is
an essential commodity as defined in the Essential Commodities Act, 1955, or with respect to
which provisions have been made in any such other law as is referred to in clause (a). We find
it quite difficult to understand as to which are the remaining commodities outside the scope of
the Act of 1980, in respect of which it can be said that the maintenance of their supplies is
essential to the community. The particular clause in sub- section (2) of Section 3 of the
National Security Act is, therefore, capable of wanton abuse in that, the detaining authority
can place under detention any person for possession of any commodity on the basis that the
authority is of the opinion that the maintenance of supply of that commodity is essential to the
community. We consider the particular clause not only vague and uncertain but, in the context
of the Explanation, capable of being extended cavalierly to supplies, the maintenance of
which is not essential to the community. To allow the personal liberty of the people to be
taken away by the application of that clause would be a flagrant violation of the fairness and
justness of procedure which is implicit in the provisions of Article 21." (at page 325-326)
68. Similarly, in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at para 130-131, it was
held:
134 Shreya Singhal v. U.O.I (SC)

"130. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if
its prohibitions are not clearly defined. Vague laws offend several important values. It is
insisted or emphasized that laws should give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap
the innocent by not providing fair warning. Such a law impermissibly delegates basic policy
matters to policemen and also judges for resolution on an ad hoc and subjective basis, with
the attendant dangers of arbitrary and discriminatory application. More so uncertain and
undefined words deployed inevitably lead citizens to "steer far wider of the unlawful zone ...
than if the boundaries of the forbidden areas were clearly marked.
131. Let us examine clause (i) of Section 2(1)(a). This section is shown to be blissfully and
impermissibly vague and imprecise. As rightly pointed out by the learned counsel, even an
innocent person who ingenuously and undefiledly communicates or associates without any
knowledge or having no reason to believe or suspect that the person or class of persons with
whom he has communicated or associated is engaged in assisting in any manner terrorists or
disruptionists, can be arrested and prosecuted by abusing or misusing or misapplying this
definition. In ultimate consummation of the proceedings, perhaps that guiltless and innoxious
innocent person may also be convicted."
69. Judged by the standards laid down in the aforesaid judgments, it is quite clear that the
expressions used in 66A are completely open-ended and undefined. Section 66 in stark
contrast to Section 66A states:
"66. Computer related offences.-If any person, dishonestly or fraudulently, does any act
referred to in Section 43, he shall be punishable with imprisonment for a term which may
extend to three years or with fine which may extend to five lakh rupees or with both.
Explanation.-For the purposes of this section,-
(a) the word "dishonestly" shall have the meaning assigned to it in Section 24 of the Indian
Penal Code (45 of 1860);
(b) the word "fraudulently" shall have the meaning assigned to it in Section 25 of the Indian
Penal Code (45 of 1860)."
70. It will be clear that in all computer related offences that are spoken of by Section 66, mens
rea is an ingredient and the expression "dishonestly" and "fraudulently" are defined with some
degree of specificity, unlike the expressions used in Section 66A.
71. The provisions contained in Sections 66B up to Section 67B also provide for various
punishments for offences that are clearly made out. For example, under Section 66B, whoever
dishonestly receives or retains any stolen computer resource or communication device is
punished with imprisonment. Under Section 66C, whoever fraudulently or dishonestly makes
use of any identification feature of another person is liable to punishment with imprisonment.
Under Section 66D, whoever cheats by personating becomes liable to punishment with
imprisonment. Section 66F again is a narrowly drawn section which inflicts punishment
which may extend to imprisonment for life for persons who threaten the unity, integrity,
security or sovereignty of India. Sections 67 to 67B deal with punishment for offences for
Shreya Singhal v. U.O.I (SC) 135

publishing or transmitting obscene material including depicting children in sexually explicit

acts in electronic form.
72. In the Indian Penal Code, a number of the expressions that occur in Section 66A occur in
Section 268.
"268. Public nuisance.-A person is guilty of a public nuisance who does any act or is guilty of
an illegal omission, which causes any common injury, danger or annoyance to the public or to
the people in general who dwell or occupy property in the vicinity, or which must necessarily
cause injury, obstruction, danger or annoyance to persons who may have occasion to use any
public right.
A common nuisance is not excused on the ground that it causes some convenience or
advantage."
73. It is important to notice the distinction between the Sections 268 and 66A. Whereas, in
Section 268 the various expressions used are ingredients for the offence of a public nuisance,
these ingredients now become offences in themselves when it comes to Section 66A. Further,
under Section 268, the person should be guilty of an act or omission which is illegal in nature
- legal acts are not within its net. A further ingredient is that injury, danger or annoyance must
be to the public in general. Injury, danger or annoyance are not offences by themselves
howsoever made and to whomsoever made. The expression "annoyance" appears also in
Sections 294 and 510 of the IPC:
"294. Obscene acts and songs.-Whoever, to the annoyance of others,
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs, ballad or words, in or near any public place,
shall be punished with imprisonment of either description for a term which may extend to
three months, or with fine, or with both.
510. Misconduct in public by a drunken person.-Whoever, in a state of intoxication, appears
in any public place, or in any place which it is a trespass in him to enter, and there conducts
himself in such a manner as to cause annoyance to any person, shall be punished with simple
imprisonment for a term which may extend to twenty-four hours, or with fine which may
extend to ten rupees, or with both."
74. If one looks at Section 294, the annoyance that is spoken of is clearly defined - that is, it
has to be caused by obscene utterances or acts. Equally, under Section 510, the annoyance
that is caused to a person must only be by another person who is in a state of intoxication and
who annoys such person only in a public place or in a place for which it is a trespass for him
to enter. Such narrowly and closely defined contours of offences made out under the Penal
Code are conspicuous by their absence in Section 66A which in stark contrast uses
completely open ended, undefined and vague language.
75. Incidentally, none of the expressions used in Section 66A are defined. Even "criminal
intimidation" is not defined - and the definition clause of the Information Technology Act,
Section 2 does not say that words and expressions that are defined in the Penal Code will
apply to this Act.
136 Shreya Singhal v. U.O.I (SC)

76. Quite apart from this, as has been pointed out above, every expression used is nebulous in
meaning. What may be offensive to one may not be offensive to another. What may cause
annoyance or inconvenience to one may not cause annoyance or inconvenience to another.
Even the expression "persistently" is completely imprecise - suppose a message is sent thrice,
can it be said that it was sent "persistently"? Does a message have to be sent (say) at least
eight times, before it can be said that such message is "persistently" sent? There is no
demarcating line conveyed by any of these expressions - and that is what renders the Section
unconstitutionally vague.
77. However, the learned Additional Solicitor General argued before us that expressions that
are used in Section 66A may be incapable of any precise definition but for that reason they
are not constitutionally vulnerable. He cited a large number of judgments in support of this
submission. None of the cited judgments dealt with a Section creating an offence which is
saved despite its being vague and in capable of any precise definition. In fact, most of the
judgments cited before us did not deal with criminal law at all. The few that did are dealt with
hereinbelow. For instance, Madan Singh v. State of Bihar, (2004) 4 SCC 622 was cited before
us. The passage cited from the aforesaid judgment is contained in para 19 of the judgment.
The cited passage is not in the context of an argument that the word "terrorism" not being
separately defined would, therefore, be struck down on the ground of vagueness. The cited
passage was only in the context of upholding the conviction of the accused in that case.
Similarly, in Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors., (2010) 5
SCC 246, the expression "insurgency" was said to be undefined and would defy a precise
definition, yet it could be understood to mean break down of peace and tranquility as also a
grave disturbance of public order so as to endanger the security of the State and its
sovereignty. This again was said in the context of a challenge on the ground of legislative
competence. The provisions of the Maharashtra Control of Organised Crime Act were
challenged on the ground that they were outside the expression "public order" contained in
Entry 1 of List I of the 7th Schedule of the Constitution of India. This contention was repelled
by saying that the expression "public order" was wide enough to encompass cases of
"insurgency". This case again had nothing to do with a challenge raised on the ground of
vagueness.
78. Similarly, in State of M.P. v. Kedia Leather & Liquor Limited, (2003) 7 SCC 389,
paragraph 8 was cited to show that the expression "nuisance" appearing in Section 133 of the
Code of Criminal Procedure was also not capable of precise definition. This again was said in
the context of an argument that Section 133 of the Code of Criminal Procedure was impliedly
repealed by the Water (Prevention and Control of Pollution) Act, 1974. This contention was
repelled by saying that the areas of operation of the two provisions were completely different
and they existed side by side being mutually exclusive. This case again did not contain any
argument that the provision contained in Section 133 was vague and, therefore,
unconstitutional. Similarly, in State of Karnataka v. Appa Balu Ingale, 1995 Supp. (4) SCC
469, the word "untouchability" was said not to be capable of precise definition. Here again,
there was no constitutional challenge on the ground of vagueness.
79. In fact, two English judgments cited by the learned Additional Solicitor General would
demonstrate how vague the words used in Section 66A are. In Director of Public Prosecutions
Shreya Singhal v. U.O.I (SC) 137

v. Collins, (2006) 1 WLR 2223, the very expression "grossly offensive" is contained in
Section 127(1)(1) of the U.K. Communications Act, 2003. A 61 year old man made a number
of telephone calls over two years to the office of a Member of Parliament. In these telephone
calls and recorded messages Mr. Collins who held strong views on immigration made a
reference to "Wogs", "Pakis", "Black bastards" and "Niggers". Mr. Collins was charged with
sending messages which were grossly offensive. The Leicestershire Justices dismissed the
case against Mr. Collins on the ground that the telephone calls were offensive but not grossly
offensive. A reasonable person would not so find the calls to be grossly offensive. The
Queen's Bench agreed and dismissed the appeal filed by the Director of Public Prosecutions.
The House of Lords reversed the Queen's Bench stating:
"9. The parties agreed with the rulings of the Divisional Court that it is for the Justices to
determine as a question of fact whether a message is grossly offensive, that in making this
determination the Justices must apply the standards of an open and just multi-racial society,
and that the words must be judged taking account of their context and all relevant
circumstances. I would agree also. Usages and sensitivities may change over time. Language
otherwise insulting may be used in an unpejorative, even affectionate, way, or may be
adopted as a badge of honour ("Old Contemptibles"). There can be no yardstick of gross
offensiveness otherwise than by the application of reasonably enlightened, but not
perfectionist, contemporary standards to the particular message sent in its particular context.
The test is whether a message is couched in terms liable to cause gross offence to those to
whom it relates.
10. In contrast with section 127(2)(a) and its predecessor subsections, which require proof of
an unlawful purpose and a degree of knowledge, section 127(1)(a) provides no explicit
guidance on the state of mind which must be proved against a defendant to establish an
offence against the subsection."
80. Similarly in Chambers v. Director of Public Prosecutions, [2013] 1 W.L.R. 1833, the
Queen's Bench was faced with the following facts:
"Following an alert on the Internet social network, Twitter, the defendant became aware that,
due to adverse weather conditions, an airport from which he was due to travel nine days later
was closed. He responded by posting several "tweets" on Twitter in his own name, including
the following: "Crap1 Robin Hood Airport is closed. You've got a week and a bit to get your
shit together otherwise I am blowing the airport sky high1" None of the defendant's
"followers" who read the posting was alarmed by it at the time. Some five days after its
posting the defendant's tweet was read by the duty manager responsible for security at the
airport on a general Internet search for tweets relating to the airport. Though not believed to
be a credible threat the matter was reported to the police. In interview the defendant asserted
that the tweet was a joke and not intended to be menacing. The defendant was charged with
sending by a public electronic communications network a message of a menacing character
contrary to section 127(1)(a) of the Communications Act 2003. He was convicted in a
magistrates' court and, on appeal, the Crown Court upheld the conviction, being satisfied that
the message was "menacing per se" and that the defendant was, at the very least, aware that
his message was of a menacing character."
138 Shreya Singhal v. U.O.I (SC)

81. The Crown Court was satisfied that the message in question was "menacing" stating that
an ordinary person seeing the tweet would be alarmed and, therefore, such message would be
"menacing". The Queen's Bench Division reversed the Crown Court stating:
"31. Before concluding that a message is criminal on the basis that it represents a menace, its
precise terms, and any inferences to be drawn from its precise terms, need to be examined in
the context in and the means by which the message was sent. The Crown Court was
understandably concerned that this message was sent at a time when, as we all know, there is
public concern about acts of terrorism and the continuing threat to the security of the country
from possible further terrorist attacks. That is plainly relevant to context, but the offence is
not directed to the inconvenience which may be caused by the message. In any event, the
more one reflects on it, the clearer it becomes that this message did not represent a terrorist
threat, or indeed any other form of threat. It was posted on "Twitter" for widespread reading,
a conversation piece for the defendant's followers, drawing attention to himself and his
predicament. Much more significantly, although it purports to address "you", meaning those
responsible for the airport, it was not sent to anyone at the airport or anyone responsible for
airport security, or indeed any form of public security. The grievance addressed by the
message is that the airport is closed when the writer wants it to be open. The language and
punctuation are inconsistent with the writer intending it to be or it to be taken as a serious
warning. Moreover, as Mr. Armson noted, it is unusual for a threat of a terrorist nature to
invite the person making it to be readily identified, as this message did. Finally, although we
are accustomed to very brief messages by terrorists to indicate that a bomb or explosive
device has been put in place and will detonate shortly, it is difficult to imagine a serious threat
in which warning of it is given to a large number of tweet "followers" in ample time for the
threat to be reported and extinguished."
82. These two cases illustrate how judicially trained minds would find a person guilty or not
guilty depending upon the Judge's notion of what is "grossly offensive" or "menacing". In
Collins' case, both the Leicestershire Justices and two Judges of the Queen's Bench would
have acquitted Collins whereas the House of Lords convicted him. Similarly, in the Chambers
case, the Crown Court would have convicted Chambers whereas the Queen's Bench acquitted
him. If judicially trained minds can come to diametrically opposite conclusions on the same
set of facts it is obvious that expressions such as "grossly offensive" or "menacing" are so
vague that there is no manageable standard by which a person can be said to have committed
an offence or not to have committed an offence. Quite obviously, a prospective offender of
Section 66A and the authorities who are to enforce Section 66A have absolutely no
manageable standard by which to book a person for an offence under Section 66A. This being
the case, having regard also to the two English precedents cited by the learned Additional
Solicitor General, it is clear that Section 66A is unconstitutionally vague.
Ultimately, applying the tests referred to in Chintaman Rao and V.G. Row's case, referred to
earlier in the judgment, it is clear that Section 66A arbitrarily, excessively and
disproportionately invades the right of free speech and upsets the balance between such right
and the reasonable restrictions that may be imposed on such right.
Chilling Effect And Overbreadth
Shreya Singhal v. U.O.I (SC) 139

83. Information that may be grossly offensive or which causes annoyance or inconvenience
are undefined terms which take into the net a very large amount of protected and innocent
speech. A person may discuss or even advocate by means of writing disseminated over the
internet information that may be a view or point of view pertaining to governmental, literary,
scientific or other matters which may be unpalatable to certain sections of society. It is
obvious that an expression of a view on any matter may cause annoyance, inconvenience or
may be grossly offensive to some. A few examples will suffice. A certain section of a
particular community may be grossly offended or annoyed by communications over the
internet by "liberal views" - such as the emancipation of women or the abolition of the caste
system or whether certain members of a non proselytizing religion should be allowed to bring
persons within their fold who are otherwise outside the fold. Each one of these things may be
grossly offensive, annoying, inconvenient, insulting or injurious to large sections of particular
communities and would fall within the net cast by Section 66A. In point of fact, Section 66A
is cast so widely that virtually any opinion on any subject would be covered by it, as any
serious opinion dissenting with the mores of the day would be caught within its net. Such is
the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect
on free speech would be total.
84. Incidentally, some of our judgments have recognized this chilling effect of free speech. In
R. Rajagopal v. State of T.N., (1994) 6 SCC 632, this Court held:
"19. The principle of Sullivan [376 US 254 : 11 L Ed 2d 686 (1964)] was carried forward -
and this is relevant to the second question arising in this case - in Derbyshire County Council
v. Times Newspapers Ltd. [(1993) 2 WLR 449 : (1993) 1 All ER 1011, HL] , a decision
rendered by the House of Lords. The plaintiff, a local authority brought an action for damages
for libel against the defendants in respect of two articles published in Sunday Times
questioning the propriety of investments made for its superannuation fund. The articles were
headed "Revealed: Socialist tycoon deals with Labour Chief" and "Bizarre deals of a council
leader and the media tycoon". A preliminary issue was raised whether the plaintiff has a cause
of action against the defendant. The trial Judge held that such an action was maintainable but
on appeal the Court of Appeal held to the contrary. When the matter reached the House of
Lords, it affirmed the decision of the Court of Appeal but on a different ground. Lord Keith
delivered the judgment agreed to by all other learned Law Lords. In his opinion, Lord Keith
recalled that in Attorney General v. Guardian Newspapers Ltd. (No. 2)[(1990) 1 AC 109 :
(1988) 3 All ER 545 : (1988) 3 WLR 776, HL] popularly known as "Spycatcher case", the
House of Lords had opined that "there are rights available to private citizens which
institutions of... Government are not in a position to exercise unless they can show that it is in
the public interest to do so". It was also held therein that not only was there no public interest
in allowing governmental institutions to sue for libel, it was "contrary to the public interest
because to admit such actions would place an undesirable fetter on freedom of speech" and
further that action for defamation or threat of such action "inevitably have an inhibiting effect
on freedom of speech". The learned Law Lord referred to the decision of the United States
Supreme Court in New York Times v. Sullivan [376 US 254 : 11 L Ed 2d 686 (1964)] and
certain other decisions of American Courts and observed - and this is significant for our
purposes-
140 Shreya Singhal v. U.O.I (SC)

"while these decisions were related most directly to the provisions of the American
Constitution concerned with securing freedom of speech, the public interest considerations
which underlaid them are no less valid in this country. What has been described as 'the
chilling effect' induced by the threat of civil actions for libel is very important. Quite often the
facts which would justify a defamatory publication are known to be true, but admissible
evidence capable of proving those facts is not available." Accordingly, it was held that the
action was not maintainable in law."
85. Also in S. Khushboo v. Kanniammal, (2010) 5 SCC 600, this Court said:
"47. In the present case, the substance of the controversy does not really touch on whether
premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate
response to the appellant's remarks. If the complainants vehemently disagreed with the
appellant's views, then they should have contested her views through the news media or any
other public platform. The law should not be used in a manner that has chilling effects on the
"freedom of speech and expression".
86. That the content of the right under Article 19(1)(a) remains the same whatever the means
of communication including internet communication is clearly established by Reno's case
(supra) and by The Secretary, Ministry of Information & Broadcasting v. Cricket Association
of Bengal & Anr., (1995) SCC 2 161 at Para 78 already referred to. It is thus clear that not
only are the expressions used in Section 66A expressions of inexactitude but they are also
over broad and would fall foul of the repeated injunctions of this Court that restrictions on the
freedom of speech must be couched in the narrowest possible terms. For example, see, Kedar
Nath Singh v. State of Bihar, [1962] Supp. 2 S.C.R. 769 at 808 -809. In point of fact,
judgments of the Constitution Bench of this Court have struck down sections which are
similar in nature. A prime example is the section struck down in the first Ram Manohar Lohia
case, namely, Section 3 of the U.P. Special Powers Act, where the persons who "instigated"
expressly or by implication any person or class of persons not to pay or to defer payment of
any liability were punishable. This Court specifically held that under the Section a wide net
was cast to catch a variety of acts of instigation ranging from friendly advice to systematic
propaganda. It was held that in its wide amplitude, the Section takes in the innocent as well as
the guilty, bonafide and malafide advice and whether the person be a legal adviser, a friend or
a well wisher of the person instigated, he cannot escape the tentacles of the Section. The
Court held that it was not possible to predicate with some kind of precision the different
categories of instigation falling within or without the field of constitutional prohibitions. It
further held that the Section must be declared unconstitutional as the offence made out would
depend upon factors which are uncertain.
87. In Kameshwar Prasad & Ors. v. The State of Bihar & Anr., [1962] Supp. 3 S.C.R. 369,
Rule 4-A of the Bihar Government Servants Conduct Rules, 1956 was challenged. The rule
states "No government servant shall participate in any demonstration or resort to any form of
strike in connection with any matter pertaining to his conditions of service."
88. The aforesaid rule was challenged under Articles 19 (1)(a) and (b) of the Constitution.
The Court followed the law laid down in Ram Manohar Lohia's case [1960] 2 S.C.R. 821 and
accepted the challenge. It first held that demonstrations are a form of speech and then held:
Shreya Singhal v. U.O.I (SC) 141

"The approach to the question regarding the constitutionality of the rule should be whether the
ban that it imposes on demonstrations would be covered by the limitation of the guaranteed
rights contained in Art. 19 (2) and 19(3). In regard to both these clauses the only relevant
criteria which has been suggested by the respondent-State is that the rule is framed "in the
interest of public order". A demonstration may be defined as "an expression of one's feelings
by outward signs." A demonstration such as is prohibited by, the rule may be of the most
innocent type - peaceful orderly such as the mere wearing of a badge by a Government
servant or even by a silent assembly say outside office hours - demonstrations which could in
no sense be suggested to involve any breach of tranquility, or of a type involving incitement
to or capable of leading to disorder. If the rule had confined itself to demonstrations of type
which would lead to disorder then the validity of that rule could have been sustained but what
the rule does is the imposition of a blanket-ban on all demonstrations of whatever type -
innocent as well as otherwise - and in consequence its validity cannot be upheld." (at page
374)
89. The Court further went on to hold that remote disturbances of public order by
demonstration would fall outside Article 19(2). The connection with public order has to be
intimate, real and rational and should arise directly from the demonstration that is sought to
be prohibited. Finally, the Court held:
"The vice of the rule, in our opinion, consists in this that it lays a ban on every type of
demonstration - be the same however innocent and however incapable of causing a breach of
public tranquility and does not confine itself to those forms of demonstrations which might
lead to that result." (at page 384)
90. These two Constitution Bench decisions bind us and would apply directly on Section 66A.
We, therefore, hold that the Section is unconstitutional also on the ground that it takes within
its sweep protected speech and speech that is innocent in nature and is liable therefore to be
used in such a way as to have a chilling effect on free speech and would, therefore, have to be
struck down on the ground of overbreadth.
Possibility of an act being abused is not a ground to test its validity:
91. The learned Additional Solicitor General cited a large number of judgments on the
proposition that the fact that Section 66A is capable of being abused by the persons who
administered it is not a ground to test its validity if it is otherwise valid. He further assured us
that this Government was committed to free speech and that Section 66A would not be used
to curb free speech, but would be used only when excesses are perpetrated by persons on the
rights of others. In The Collector of Customs, Madras v. Nathella Sampathu Chetty & Anr.,
[1962] 3 S.C.R. 786, this Court observed:
"....This Court has held in numerous rulings, to which it is unnecessary to refer, that the
possibility of the abuse of the powers under the provisions contained in any statute is no
ground for declaring the provision to be unreasonable or void. Commenting on a passage in
the judgment of the Court of Appeal of Northern Ireland which stated:
"If such powers are capable of being exercised reasonably it is impossible to say that they
may not also be exercised unreasonably"
142 Shreya Singhal v. U.O.I (SC)

and treating this as a ground for holding the statute invalid Viscount Simonds observed in
Belfast Corporation v. O.D. Commission [ 1960 AC 490 at pp. 520-521] :
"It appears to me that the short answer to this contention (and I hope its shortness will not be
regarded as disrespect) is that the validity of a measure is not to be determined by its
application to particular cases.... If it is not so exercised (i.e. if the powers are abused) it is
open to challenge and there is no need for express provision for its challenge in the statute."
The possibility of abuse of a statute otherwise valid does not impart to it any element of
invalidity. The converse must also follow that a statute which is otherwise invalid as being
unreasonable cannot be saved by its being administered in a reasonable manner. The
constitutional validity of the statute would have to be determined on the basis of its provisions
and on the ambit of its operation as reasonably construed. If so judged it passes the test of
reasonableness, possibility of the powers conferred being improperly used is no ground for
pronouncing the law itself invalid and similarly if the law properly interpreted and tested in
the light of the requirements set out in Part III of the Constitution does not pass the test it
cannot be pronounced valid merely because it is administered in a manner which might not
conflict with the constitutional requirements." (at page 825)
92. In this case, it is the converse proposition which would really apply if the learned
Additional Solicitor General's argument is to be accepted. If Section 66A is otherwise invalid,
it cannot be saved by an assurance from the learned Additional Solicitor General that it will
be administered in a reasonable manner. Governments may come and Governments may go
but Section 66A goes on forever. An assurance from the present Government even if carried
out faithfully would not bind any successor Government. It must, therefore, be held that
Section 66A must be judged on its own merits without any reference to how well it may be
administered.
Severability:
93. The argument of the learned Additional Solicitor General on this score is reproduced by
us verbatim from one of his written submissions:
"Furthermore it is respectfully submitted that in the event of Hon'ble Court not being satisfied
about the constitutional validity of either any expression or a part of the provision, the
Doctrine of Severability as enshrined under Article 13 may be resorted to."
94. The submission is vague: the learned Additional Solicitor General does not indicate which
part or parts of Section 66A can possibly be saved. This Court in Romesh Thappar v. The
State of Madras, [1950] S.C.R. 594 repelled a contention of severability when it came to the
courts enforcing the fundamental right under Article 19(1)(a) in the following terms:
"It was, however, argued that Section 9(1-A) could not be considered wholly void, as, under
Article 13(1), an existing law inconsistent with a fundamental right is void only to the extent
of the inconsistency and no more. Insofar as the securing of the public safety or the
maintenance of public order would include the security of the State, the impugned provision,
as applied to the latter purpose, was covered by clause (2) of Article 19 and must, it was said,
be held to be valid. We are unable to accede to this contention. Where a law purports to
authorise the imposition of restrictions on a fundamental right in language wide enough to
Shreya Singhal v. U.O.I (SC) 143

cover restrictions both within and without the limits of constitutionally permissible legislative
action affecting such right, it is not possible to uphold it even so far as it may be applied
within the constitutional limits, as it is not severable. So long as the possibility of its being
applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to
be wholly unconstitutional and void. In other words, clause (2) of Article 19 having allowed
the imposition of restrictions on the freedom of speech and expression only in cases where
danger to the State is involved, an enactment, which is capable of being applied to cases
where no such danger could arise, cannot be held to be constitutional and valid to any extent."
(At page 603)
95. It has been held by us that Section 66A purports to authorize the imposition of restrictions
on the fundamental right contained in Article 19(1)(a) in language wide enough to cover
restrictions both within and without the limits of constitutionally permissible legislative
action. We have held following K.A. Abbas' case (Supra) that the possibility of Section 66A
being applied for purposes not sanctioned by the Constitution cannot be ruled out. It must,
therefore, be held to be wholly unconstitutional and void. Romesh Thappar's Case was
distinguished in R.M.D. Chamarbaugwalla v. The Union of India, [1957] S.C.R. 930 in the
context of a right under Article 19(1)(g) as follows:
"20. In Romesh Thappar v. State of Madras [ (1950) SCR 594] , the question was as to the
validity of Section 9(1-A) of the Madras Maintenance of Public Order Act, 23 of 1949. That
section authorised the Provincial Government to prohibit the entry and circulation within the
State of a newspaper "for the purpose of securing the public safety or the maintenance of
public order." Subsequent to the enactment of this statute, the Constitution came into force,
and the validity of the impugned provision depended on whether it was protected by Article
19(2), which saved "existing law insofar as it relates to any matter which undermines the
security of or tends to overthrow the State." It was held by this Court that as the purposes
mentioned in Section 9(1-A) of the Madras Act were wider in amplitude than those specified
in Article 19(2), and as it was not possible to split up Section 9(1-A) into what was within and
what was without the protection of Article 19(2), the provision must fail in its entirety. That is
really a decision that the impugned provision was on its own contents inseverable. It is not an
authority for the position that even when a provision is severable, it must be struck down on
the ground that the principle of severability is inadmissible when the invalidity of a statute
arises by reason of its contravening constitutional prohibitions. It should be mentioned that
the decision in Romesh Thappar v. State of Madras [ (1950) SCR 594] was referred to in
State of Bombay v. F.N. Balsara [ (1951) SCR 682] and State of Bombay v. United Motors
(India) Ltd. [ (1953) SCR 1069 at 1098-99] and distinguished."[pic]
96. The present being a case of an Article 19(1)(a) violation, Romesh Thappar's judgment
would apply on all fours. In an Article 19(1)(g) challenge, there is no question of a law being
applied for purposes not sanctioned by the Constitution for the simple reason that the eight
subject matters of Article 19(2) are conspicuous by their absence in Article 19(6) which only
speaks of reasonable restrictions in the interests of the general public. The present is a case
where, as has been held above, Section 66A does not fall within any of the subject matters
contained in Article 19(2) and the possibility of its being applied for purposes outside those
144 Shreya Singhal v. U.O.I (SC)

subject matters is clear. We therefore hold that no part of Section 66A is severable and the
provision as a whole must be declared unconstitutional.
Article 14
97. Counsel for the petitioners have argued that Article 14 is also infringed in that an offence
whose ingredients are vague in nature is arbitrary and unreasonable and would result in
arbitrary and discriminatory application of the criminal law. Further, there is no intelligible
differentia between the medium of print, broadcast, and real live speech as opposed to speech
on the internet and, therefore, new categories of criminal offences cannot be made on this
ground. Similar offences which are committed on the internet have a three year maximum
sentence under Section 66A as opposed to defamation which has a two year maximum
sentence. Also, defamation is a non-cognizable offence whereas under Section 66A the
offence is cognizable.
98. We have already held that Section 66A creates an offence which is vague and overbroad,
and, therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2). We
have also held that the wider range of circulation over the internet cannot restrict the content
of the right under Article 19(1)(a) nor can it justify its denial. However, when we come to
discrimination under Article 14, we are unable to agree with counsel for the petitioners that
there is no intelligible differentia between the medium of print, broadcast and real live speech
as opposed to speech on the internet. The intelligible differentia is clear - the internet gives
any individual a platform which requires very little or no payment through which to air his
views. The learned Additional Solicitor General has correctly said that something posted on a
site or website travels like lightning and can reach millions of persons all over the world. If
the petitioners were right, this Article 14 argument would apply equally to all other offences
created by the Information Technology Act which are not the subject matter of challenge in
these petitions. We make it clear that there is an intelligible differentia between speech on the
internet and other mediums of communication for which separate offences can certainly be
created by legislation. We find, therefore, that the challenge on the ground of Article 14 must
fail.
Procedural Unreasonableness
99. One other argument must now be considered. According to the petitioners, Section 66A
also suffers from the vice of procedural unreasonableness. In that, if, for example, criminal
defamation is alleged, the safeguards available under Section 199 Cr.P.C. would not be
available for a like offence committed under Section 66A. Such safeguards are that no court
shall take cognizance of such an offence except upon a complaint made by some person
aggrieved by the offence and that such complaint will have to be made within six months
from the date on which the offence is alleged to have been committed. Further, safeguards
that are to be found in Sections 95 and 96 of the Cr.P.C. are also absent when it comes to
Section 66A. For example, where any newspaper book or document wherever printed appears
to contain matter which is obscene, hurts the religious feelings of some community, is
seditious in nature, causes enmity or hatred to a certain section of the public, or is against
national integration, such book, newspaper or document may be seized but under Section 96
any person having any interest in such newspaper, book or document may within two months
Shreya Singhal v. U.O.I (SC) 145

from the date of a publication seizing such documents, books or newspapers apply to the High
court to set aside such declaration. Such matter is to be heard by a Bench consisting of at least
three Judges or in High Courts which consist of less than three Judges, such special Bench as
may be composed of all the Judges of that High Court.
100. It is clear that Sections 95 and 96 of the Criminal Procedure Code reveal a certain degree
of sensitivity to the fundamental right to free speech and expression. If matter is to be seized
on specific grounds which are relatable to the subject matters contained in Article 19(2), it
would be open for persons affected by such seizure to get a declaration from a High Court
consisting of at least three Judges that in fact publication of the so-called offensive matter
does not in fact relate to any of the specified subjects contained in Article 19(2).
Further, Section 196 of the Cr.P.C. states:
"196. Prosecution for offences against the State and for criminal conspiracy to commit such
offence.- (1) No Court shall take cognizance of-
(a) any offence punishable under Chapter VI or under Section 153-A, [Section 295-A or sub-
section (1) of Section 505] of the Indian Penal Code, 1860 (45 of 1860), or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in Section 108-A of the Indian Penal Code (45 of
1860), except with the previous sanction of the Central Government or of the State
Government.
[(1-A) No Court shall take cognizance of-
(a) any offence punishable under Section 153-B or sub-section (2) or sub- section (3) of
Section 505 of the Indian Penal Code, 1860 (45 of 1860), or
(b) a criminal conspiracy to commit such offence, except with the previous sanction of the
Central Government or of the State Government or of the District Magistrate.] (2) No court
shall take cognizance of the offence of any criminal conspiracy punishable under Section 120-
B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit [an
offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of
two years or upwards, unless the State Government or the District Magistrate has consented in
writing to the initiation of the proceedings:
Provided that where the criminal conspiracy is one to which the provisions of Section 195
apply, no such consent shall be necessary.
(3) The Central Government or the State Government may, before according sanction [under
sub-section (1) or sub-section (1-A) and the District Magistrate may, before according
sanction under sub-section (1-A)] and the State Government or the District Magistrate may,
before giving consent under sub-section (2), order a preliminary investigation by a police
officer not being below the rank of Inspector, in which case such police officer shall have the
powers referred to in sub-section (3) of Section
155."
101. Again, for offences in the nature of promoting enmity between different groups on
grounds of religion etc. or offences relatable to deliberate and malicious acts intending to
146 Shreya Singhal v. U.O.I (SC)

outrage religious feelings or statements that create or promote enmity, hatred or ill-will
between classes can only be taken cognizance of by courts with the previous sanction of the
Central Government or the State Government. This procedural safeguard does not apply even
when a similar offence may be committed over the internet where a person is booked under
Section 66A instead of the aforesaid Sections.
Having struck down Section 66A on substantive grounds, we need not decide the procedural
unreasonableness aspect of the Section.
Section 118 of the Kerala Police Act.
102. Learned counsel for the Petitioner in Writ Petition No. 196 of 2014 assailed sub-section
(d) of Section 118 which is set out hereinbelow:
"118. Penalty for causing grave violation of public order or danger.- Any person who,-
(d) Causes annoyance to any person in an indecent manner by statements or verbal or
comments or telephone calls or calls of any type or by chasing or sending messages or mails
by any means; shall, on conviction be punishable with imprisonment for a term which may
extend to three years or with fine not exceeding ten thousand rupees or with both."
103. Learned counsel first assailed the Section on the ground of legislative competence
stating that this being a Kerala Act, it would fall outside Entries1 and 2 of List II and fall
within Entry 31 of List I. In order to appreciate the argument we set out the relevant entries:
"List - I
31. Posts and telegraphs; telephones, wireless, broadcasting and other like forms of
communication.
List - II
1. Public order (but not including the use of any naval, military or air force or any other
armed force of the Union or of any other force subject to the control of the Union or of any
contingent or unit thereof in aid of the civil power).
2. Police (including railway and village police) subject to the provisions of entry 2A of List
I."
The Kerala Police Act as a whole would necessarily fall under Entry 2 of List II. In addition,
Section 118 would also fall within Entry 1 of List II in that as its marginal note tells us it
deals with penalties for causing grave violation of public order or danger.
104. It is well settled that a statute cannot be dissected and then examined as to under what
field of legislation each part would separately fall. In A.S. Krishna v. State of Madras, [1957]
S.C.R. 399, the law is stated thus:
"The position, then, might thus be summed up : When a law is impugned on the ground that it
is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the
true character of the legislation. To do that, one must have regard to the enactment as a whole,
to its objects and to the scope and effect of its provisions. If on such examination it is found
that the legislation is in substance one on a matter assigned to the legislature, then it must be
held to be valid in its entirety, even though it might incidentally trench on matters which are
beyond its competence. It would be quite an erroneous approach to the question to view such
Shreya Singhal v. U.O.I (SC) 147

a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into
parts, examine under what heads of legislation those parts would severally fall, and by that
process determine what portions thereof are intra vires, and what are not." (at page 410)
105. It is, therefore, clear that the Kerala Police Act as a whole and Section 118 as part
thereof falls in pith and substance within Entry 2 List II, notwithstanding any incidental
encroachment that it may have made on any other Entry in List I. Even otherwise, the penalty
created for causing annoyance in an indecent manner in pith and substance would fall within
Entry 1 List III which speaks of criminal law and would thus be within the competence of the
State Legislature in any case.
106. However, what has been said about Section 66A would apply directly to Section 118(d)
of the Kerala Police Act, as causing annoyance in an indecent manner suffers from the same
type of vagueness and over breadth, that led to the invalidity of Section 66A, and for the
reasons given for striking down Section 66A, Section 118(d) also violates Article 19(1)(a)
and not being a reasonable restriction on the said right and not being saved under any of the
subject matters contained in Article 19(2) is hereby declared to be unconstitutional.
Section 69A and the Information Technology (Procedure and Safeguards for Blocking for
Access of Information by Public) Rules, 2009.
107. Section 69A of the Information Technology Act has already been set out in paragraph 2
of the judgment. Under sub-section (2) thereof, the 2009 Rules have been framed. Under Rule
3, the Central Government shall designate by notification in the official gazette an officer of
the Central Government not below the rank of a Joint Secretary as the Designated Officer for
the purpose of issuing direction for blocking for access by the public any information
referable to Section 69A of the Act. Under Rule 4, every organization as defined under Rule
2(g), (which refers to the Government of India, State Governments, Union Territories and
agencies of the Central Government as may be notified in the Official Gazette by the Central
Government)- is to designate one of its officers as the "Nodal Officer". Under Rule 6, any
person may send their complaint to the "Nodal Officer" of the concerned Organization for
blocking, which complaint will then have to be examined by the concerned Organization
regard being had to the parameters laid down in Section 69A(1) and after being so satisfied,
shall transmit such complaint through its Nodal Officer to the Designated Officer in a format
specified by the Rules. The Designated Officer is not to entertain any complaint or request for
blocking directly from any person. Under Rule 5, the Designated Officer may on receiving
any such request or complaint from the Nodal Officer of an Organization or from a competent
court, by order direct any intermediary or agency of the Government to block any information
or part thereof for the reasons specified in 69A(1). Under Rule 7 thereof, the
request/complaint shall then be examined by a Committee of Government Personnel who
under Rule 8 are first to make all reasonable efforts to identify the originator or intermediary
who has hosted the information. If so identified, a notice shall issue to appear and submit their
reply at a specified date and time which shall not be less than 48 hours from the date and time
of receipt of notice by such person or intermediary. The Committee then examines the request
and is to consider whether the request is covered by 69A(1) and is then to give a specific
recommendation in writing to the Nodal Officer of the concerned Organization. It is only
thereafter that the Designated Officer is to submit the Committee's recommendation to the
148 Shreya Singhal v. U.O.I (SC)

Secretary, Department of Information Technology who is to approve such requests or

complaints. Upon such approval, the Designated Officer shall then direct any agency of
Government or intermediary to block the offending information. Rule 9 provides for blocking
of information in cases of emergency where delay caused would be fatal in which case the
blocking may take place without any opportunity of hearing. The Designated Officer shall
then, not later than 48 hours of the issue of the interim direction, bring the request before the
Committee referred to earlier, and only on the recommendation of the Committee, is the
Secretary Department of Information Technology to pass the final order. Under Rule 10, in
the case of an order of a competent court in India, the Designated Officer shall, on receipt of a
certified copy of a court order, submit it to the Secretary, Department of Information
Technology and then initiate action as directed by the Court. In addition to the above
safeguards, under Rule 14 a Review Committee shall meet at least once in two months and
record its findings as to whether directions issued are in accordance with Section 69A(1) and
if it is of the contrary opinion, the Review Committee may set aside such directions and issue
orders to unblock the said information. Under Rule 16, strict confidentiality shall be
maintained regarding all the requests and complaints received and actions taken thereof.
108. Learned counsel for the petitioners assailed the constitutional validity of Section 69A,
and assailed the validity of the 2009 Rules. According to learned counsel, there is no pre-
decisional hearing afforded by the Rules particularly to the "originator" of information, which
is defined under Section 2(za) of the Act to mean a person who sends, generates, stores or
transmits any electronic message; or causes any electronic message to be sent, generated,
stored or transmitted to any other person. Further, procedural safeguards such as which are
provided under Section 95 and 96 of the Code of Criminal Procedure are not available here.
Also, the confidentiality provision was assailed stating that it affects the fundamental rights of
the petitioners.
109. It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision
with several safeguards. First and foremost, blocking can only be resorted to where the
Central Government is satisfied that it is necessary so to do. Secondly, such necessity is
relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be
recorded in writing in such blocking order so that they may be assailed in a writ petition under
Article 226 of the Constitution.
110. The Rules further provide for a hearing before the Committee set up - which Committee
then looks into whether or not it is necessary to block such information. It is only when the
Committee finds that there is such a necessity that a blocking order is made. It is also clear
from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the
"person" i.e. the originator is identified he is also to be heard before a blocking order is
passed. Above all, it is only after these procedural safeguards are met that blocking orders are
made and in case there is a certified copy of a court order, only then can such blocking order
also be made. It is only an intermediary who finally fails to comply with the directions issued
who is punishable under sub-section (3) of Section 69A.
111. Merely because certain additional safeguards such as those found in Section 95 and 96
CrPC are not available does not make the Rules constitutionally infirm. We are of the view
that the Rules are not constitutionally infirm in any manner.
Shreya Singhal v. U.O.I (SC) 149

Section 79 and the Information Technology (Intermediary Guidelines) Rules, 2011.

112. Section 79 belongs to Chapter XII of the Act in which intermediaries are exempt from
liability if they fulfill the conditions of the Section. Section 79 states:
"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-sections
(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 intermediary 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. Explanation.-For the purposes of this
section, the expression "third party information" means any information dealt with by an
intermediary in his capacity as an intermediary.]"
113. Under the 2011 Rules, by Rule 3 an intermediary has not only to publish the rules and
regulations, privacy policy and user agreement for access or usage of the intermediary's
computer resource but he has also to inform all users of the various matters set out in Rule
3(2). Since Rule 3(2) and 3(4) are important, they are set out hereinbelow:- "3. Due diligence
to be observed by intermediary.-The intermediary shall observe following due diligence while
discharging his duties, namely:-
(2) Such rules and regulations, terms and conditions or user agreement shall inform the users
of computer resource not to host, display, upload, modify, publish, transmit, update or share
any information that-
(a) belongs to another person and to which the user does not have any right to;
(b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic,
paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically
150 Shreya Singhal v. U.O.I (SC)

objectionable, disparaging, relating or encouraging money laundering or gambling, or

otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such messages or communicates any
information which is grossly offensive or menacing in nature;
(g) impersonate another person;
(h) contains software viruses or any other computer code, files or programs designed to
interrupt, destroy or limit the functionality of any computer resource;
(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations
with foreign states, or public order or causes incitement to the commission of any cognisable
offence or prevents investigation of any offence or is insulting any other nation.
(4) The intermediary, on whose computer system the information is stored or hosted or
published, upon obtaining knowledge by itself or been brought to actual knowledge by an
affected person in writing or through e-mail signed with electronic signature about any such
information as mentioned in sub- rule (2) above, shall act within thirty-six hours and where
applicable, work with user or owner of such information to disable such information that is in
contravention of sub-rule (2). Further the intermediary shall preserve such information and
associated records for at least ninety days for investigation purposes."
114. Learned counsel for the petitioners assailed Rules 3(2) and 3(4) on two basic grounds.
Firstly, the intermediary is called upon to exercise its own judgment under sub-rule (4) and
then disable information that is in contravention of sub-rule (2), when intermediaries by their
very definition are only persons who offer a neutral platform through which persons may
interact with each other over the internet. Further, no safeguards are provided as in the 2009
Rules made under Section 69A. Also, for the very reasons that Section 66A is bad, the
petitioners assailed sub-rule (2) of Rule 3 saying that it is vague and over broad and has no
relation with the subjects specified under Article 19(2).
115. One of the petitioners' counsel also assailed Section 79(3)(b) to the extent that it makes
the intermediary exercise its own judgment upon receiving actual knowledge that any
information is being used to commit unlawful acts. Further, the expression "unlawful acts"
also goes way beyond the specified subjects delineated in Article 19(2).
116. It must first be appreciated that Section 79 is an exemption provision. Being an
exemption provision, it is closely related to provisions which provide for offences including
Section 69A. We have seen how under Section 69A blocking can take place only by a
reasoned order after complying with several procedural safeguards including a hearing to the
originator and intermediary. We have also seen how there are only two ways in which a
blocking order can be passed - one by the Designated Officer after complying with the 2009
Rules and the other by the Designated Officer when he has to follow an order passed by a
Shreya Singhal v. U.O.I (SC) 151

competent court. The intermediary applying its own mind to whether information should or
should not be blocked is noticeably absent in Section 69A read with 2009 Rules.
117. Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual
knowledge that a court order has been passed asking it to expeditiously remove or disable
access to certain material must then fail to expeditiously remove or disable access to that
material. This is for the reason that otherwise it would be very difficult for intermediaries like
Google, Facebook etc. to act when millions of requests are made and the intermediary is then
to judge as to which of such requests are legitimate and which are not. We have been
informed that in other countries worldwide this view has gained acceptance, Argentina being
in the forefront. Also, the Court order and/or the notification by the appropriate Government
or its agency must strictly conform to the subject matters laid down in Article 19(2). Unlawful
acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79.
With these two caveats, we refrain from striking down Section 79(3)(b).
118. The learned Additional Solicitor General informed us that it is a common practice
worldwide for intermediaries to have user agreements containing what is stated in Rule 3(2).
However, Rule 3(4) needs to be read down in the same manner as Section 79(3)(b). The
knowledge spoken of in the said sub-rule must only be through the medium of a court order.
Subject to this, the Information Technology (Intermediaries Guidelines) Rules, 2011 are
valid.
119. In conclusion, we may summarise what has been held by us above:
Section 66A of the Information Technology Act, 2000 is struck down in its entirety being
violative of Article 19(1)(a) and not saved under Article 19(2).
Section 69A and the Information Technology (Procedure & Safeguards for Blocking for
Access of Information by Public) Rules 2009 are constitutionally valid.
Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary
upon receiving actual knowledge from a court order or on being notified by the appropriate
government or its agency that unlawful acts relatable to Article 19(2) are going to be
committed then fails to expeditiously remove or disable access to such material. Similarly, the
Information Technology "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3
sub-rule (4) being read down in the same manner as indicated in the judgment.
Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and
not saved by Article 19(2).
All the writ petitions are disposed in the above terms.
[1] [2]The genealogy of this Section may be traced back to Section 10(2)(a) of the U.K. Post
Office (Amendment) Act, 1935, which made it an offence to send any message by telephone
which is grossly offensive or of an indecent, obscene, or menacing character. This Section
was substantially reproduced by Section 66 of the UK Post Office Act, 1953 as follows:
66. Prohibition of sending offensive or false telephone messages or false telegrams, etc. If any
person-
152 Shreya Singhal v. U.O.I (SC)

(a)sends any message by telephone which is grossly offensive or of an indecent, obscene or

menacing character ;
(b)sends any message by telephone, or any telegram, which he knows to be false, for the
purpose of causing annoyance, inconvenience or needless anxiety to any other person ; or
(c)persistently makes telephone calls without reasonable cause and for any such purpose as
aforesaid, he shall be liable on summary conviction to a fine not exceeding ten pounds, or to
imprisonment for a term not exceeding one month, or to both.
This Section in turn was replaced by Section 49 of the British Telecommunication Act, 1981
and Section 43 of the British Telecommunication Act, 1984. In its present form in the UK, it
is Section 127 of the Telecommunication Act, 2003 which is relevant and which is as
follows:-
127. Improper use of public electronic communications network A person is guilty of an
offence if he -
sends by means of a public electronic communications network a message or other matter that
is grossly offensive or of an indecent, obscene or menacing character; or cause any such
message or matter to be so sent.
A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or
needless anxiety to another, he-
sends by means of a public electronic communications network, a message that he knows to
be false, causes such a message to be sent; or persistently makes use of a public electronic
communications network.
A person guilty of an offence under this section shall be liable, on summary conviction, to
imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the
standard scale, or to both.
Subsections (1) and (2) do not apply to anything done in the course of providing a programme
service (within the meaning of the Broadcasting Act 1990 (c.42)).
[3] [4] Incidentally, the Ark of the Covenant is perhaps the single most important focal point
in Judaism. The original ten commandments which the Lord himself gave to Moses was
housed in a wooden chest which was gold plated and called the Ark of the Covenant and
carried by the Jews from place to place until it found its final repose in the first temple - that
is the temple built by Solomon.
[5] [6] A good example of the difference between advocacy and incitement is Mark Antony's
speech in Shakespeare's immortal classic Julius Caesar. Mark Antony begins cautiously.
Brutus is chastised for calling Julius Caesar ambitious and is repeatedly said to be an
"honourable man". He then shows the crowd Caesar's mantle and describes who struck Caesar
where. It is at this point, after the interjection of two citizens from the crowd, that Antony
says-
"ANTONY- Good friends, sweet friends, let me not stir you up To such a sudden flood of
mutiny.
Shreya Singhal v. U.O.I (SC) 153

They that have done this deed are honourable: What private griefs they have, alas, I know not,
That made them do it: they are wise and honourable, And will, no doubt, with reasons answer
you. I come not, friends, to steal away your hearts: I am no orator, as Brutus is;
But, as you know me all, a plain blunt man, That love my friend; and that they know full well
That gave me public leave to speak of him: For I have neither wit, nor words, nor worth,
Action, nor utterance, nor the power of speech, To stir men's blood: I only speak right on; I
tell you that which you yourselves do know; Show you sweet Caesar's wounds, poor poor
dumb mouths, And bid them speak for me: but were I Brutus, And Brutus Antony, there were
an Antony Would ruffle up your spirits and put a tongue In every wound of Caesar that
should move The stones of Rome to rise and mutiny. ALL- We'll mutiny."
[7] [8] In its present form the clear and present danger test has been reformulated to say that:
"The constitutional guarantees of free speech and free press do not permit a State to forbid or
proscribe advocacy of the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to incite or produce
such action."
Interestingly, the US Courts have gone on to make a further refinement. The State may ban
what is called a "true threat".
"'True threats' encompass those statements where the speaker means to communicate a
serious expression of an intent to commit an act of unlawful violence to a particular individual
or group of individuals."
"The speaker need not actually intend to carry out the threat. Rather, a prohibition on true
threats protects individuals from the fear of violence and from the disruption that fear
engenders, in addition to protecting people from the possibility that the threatened violence
will occur. Intimidation in the constitutionally proscribable sense of the word is a type of true
threat, where a speaker directs a threat to a person or group of persons with the intent of
placing the victim in fear of bodily harm or death."
See Virginia v. Black (Supra) and Watts v. United States 22 L. Ed. 2d. 664 at 667

*****
 World Wrestling Entertainment, Inc. v. M/s Reshma Collection
FAO (OS) 506/2013 in CM Nos. 17627/2013, 18606/2013, Del(DB)

BADAR DURREZ AHMED, J

1. This appeal is directed against the order dated 04.10.2013 passed by a learned
Single Judge of this Court in CS(OS) 1801/2013, whereby the plaint filed by the
appellant/plaintiff was directed to be returned to the appellant/ plaintiff under Order 7
Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC), to
be presented before a court of competent jurisdiction.
2. The suit had been filed by the appellant/ plaintiff seeking permanent injunction
based on alleged infringement of its copyright, infringement of its trademarks, passing
off, dilution, rendition of accounts, damages and delivery up etc. It is an admitted
position that the appellant/ plaintiff is a company incorporated under the laws of the
State of Delaware, United States of America and that all the defendants reside in
Mumbai and do not carry on business within the jurisdiction of this Court. The
appellant/ plaintiff claimed that this Court has jurisdiction to entertain the said suit on
account of the provisions of Section 134(2) of the Trademarks Act, 1999 and
Section 62(2) of the Copyright Act, 1957. The specific plea with regard to
jurisdiction was made in paragraph 32 of the plaint which reads as under:-
32. It is submitted that this Honble Court has territorial jurisdiction
to entertain and try the present suit under Section 134 (2) of the Trade
Marks Act, 1999 and Section 62 (2) of the Copyright Act, 1957 on
account of the fact the Plaintiff carries on business within the territorial
limits of this Hon'ble court as briefly summarized below:
i. The Plaintiff's programmes, consisting of its various characters including John Cena,
Undertaker, Triple H, Randy Orton and Batista are broadcast at Delhi, within the
territorial limits of this Hon'ble Court;
ii. The Plaintiffs products, such as its merchandising goods and books, are available
within the territorial limits of this Hon'ble Court;
iii. The Plaintiffs goods and services are sold to consumers in Delhi through its websites
which can be accessed and operated from all over the country, including from Delhi.
The appellant/plaintiff is, inter alia, engaged in the development, production and
marketing of television programming, pay-per-view programming, live events and the
licensing and sale of branded consumer products featuring its well known World
Wrestling Entertainment (WWE) brand. The WWE scratch logo and World Wrestling
Entertainment are registered trademarks of the appellant/plaintiff worldwide including
India. The appellant/plaintiff is also the owner of the copyright of the pictorial
representations of World Wrestling Entertainment and WWE Wrestlers and the WWE
World Wrestling Entertainment, Inc. v. M/s Reshma Collection 155

scratch logo as they appear on various publicity materials and promotional

merchandise of the appellant/ plaintiff. The appellant/ plaintiff also has trademark
registrations in respect of various WWE talent names and talent slogans such as
JOHN CENA, BATISTA, UNDERTAKER, TRIPLE H, RANDY ORTON etc.

4. The appellant/ plaintiff offers a variety of memorabilia including, but not

limited to, apparel, posters, calendars, fact books, sunglasses, water bottles, key-rings,
DVDs etc. It has more than 200 licensees distributing its products in 86 countries,
including India. It has been averred by the appellant/ plaintiff that it licenses out its
well known trademarks and the images/characters to different parties for use on
merchandise in a wide range of products.
It is the allegation of the appellant/ plaintiff that the defendants, who are stationed at
Mumbai, are engaged in the business of manufacture and sale of various forms of
garments and apparel, such as T-shirts, wrist bands, caps and other counterfeit goods
and garments bearing the reproductions of the plaintiffs talents. According to the
appellant/ plaintiff, the defendants, are infringing the appellant/plaintiffs registered
trademarks. It is alleged that the apparels sold by the defendants bear the images of
WWE talents and, representations of the well known WWE characters are displayed
prominently on the defendants products.
6. The learned Single Judge, by virtue of the impugned order, has, without
issuing summons in the said suit, directed the return of the plaint to the appellant/
plaintiff by holding that the Delhi High Court would have no territorial jurisdiction
insofar as the said suit was concerned. The learned Single Judge rejected the pleas
raised on behalf of the appellant/ plaintiff that this Court had territorial jurisdiction to
entertain the suit by virtue of the provisions of Section 134(2) of the Trademarks Act,
1999 and Section 62(2) of the Copyright Act, 1957. While doing so, the learned
Single Judge placed
reliance on the decision of the Supreme Court in the case of Dhodha House
v. S.K. Maingi: 2006 (9) SCC 41 as also on a decision of a Division Bench of this
Court in Archie Comic Publications, Inc. v. Purple Creations Pvt. Ltd. &
Others: 172 DLT 234 (DB).
7. Before the learned Single Judge, it had been contended on behalf of the appellant/
plaintiff that the decisions of the Supreme Court in Dhodha House (supra) and this
Court in Archie Comic (supra) were not applicable inasmuch as they did not take into
account the new media of web-based business models where transactions are
conducted over the internet. The learned counsel for the appellant/ plaintiff had placed
reliance on Yahoo Inc. v. Akash Arora: 1999 (19) PTC 201; Banyan Tree Holding
(P) Limited v. A. Murali Krishna Reddy and Another: 2010 (42) PTC 361 (Del); and
156 World Wrestling Entertainment, Inc. v. M/s Reshma Collection

Wipro Limited and Another v. Oushadha Chandrika Ayurvedic India (P) Limited
and Others: 2008 (37) PTC 269 (MAD) (DB). It was also contended on behalf of the
appellant/ plaintiff before the learned Single Judge that the question of territorial
jurisdiction was a mixed question of law and fact and, therefore, the same ought to be
adjudicated at the final stage of the suit and not at the preliminary stage of admission.
All these pleas were rejected by the learned Single Judge by placing reliance on the
decision in the case of Dhodha House (supra) which had interpreted the expression
carries on business appearing in both, Section 134(2) of the Trademarks Act, 1999
and Section 62(2) of the Copyright Act, 1957. The learned Single Judge observed that
the sum and substance of the criteria laid down in Dhodha House (supra) was that an
essential part of the plaintiffs business, coupled with an element of control exercised
by the plaintiff, must exist in such a place where the plaintiff claims to be carrying on
business either on its own or through an exclusive agent. The learned Single Judge
also observed that merely because of the e-commerce models, which have become
prevalent, and because of the use of the internet as a medium for doing business, the
tests, which apply for determination of issues, such as, when and where the contract is
made or whether the vendor carries on business at the place where the merchandise
may be sold, or service may be offered, would not change and would be the same as
applicable to communications over the telephone and fax. For this, the learned Single
Judge made a reference to the Supreme Court decision in Bhagwan Goverdhandas
Kedia v. Girdharilal Parshottamdas & Co.: AIR 1966 SC
543.
8. With regard to the reliance placed by the appellant/ plaintiff on the decision in
Banyan Tree (supra), the learned Single Judge observed that the same was misplaced
inasmuch as, according to him, in Banyan Tree (supra) the question related to the
website of a defendant and not that of plaintiff as in the present case. At this juncture
itself we may point out that the decision in Banyan Tree (supra) would not be
applicable here just because the questions there pertained to a defendants website but,
because (a) it specifically dealt with a case where it was admitted that the plaintiff did
not carry on business within the jurisdiction of the Court, (b) it was concerned only
with the provisions of Section 20(c) CPC, and (c) it was a case of passing off. In
Banyan Tree (supra) the Division Bench did not examine the meaning and scope of
the expression carries on business as appearing in Section 134(2) and 62(2) of the
Trademarks Act, 1999 and the Copyright Act, 1957, respectively. That case was
decided on the basis of the plea of cause of action and not on the basis of the
expression carries on business, which is the case here.
9. The learned Single Judge also held that whenever the legislature thought it
necessary, it amended the laws to make provision for the new media. He observed
that while enacting the Information Technology Act, 2000 and amending other
World Wrestling Entertainment, Inc. v. M/s Reshma Collection 157

statutes, Parliament had consciously not amended the Trademarks Act, 1999 or the
Copyright Act, 1957 or the Code of Civil Procedure, 1908 for expressly bringing in
the concepts with regard to new media. Consequently, it was observed by the
learned Single Judge that the new media did not change the basic concepts or legal
principles which applied to trade and commerce and they continued to remain the
same as applicable to the old media i.e., telephone and fax.
For all the above reasons, the learned Single Judge rejected the plea of the appellant/
plaintiff that the Delhi High Court would have territorial jurisdiction to entertain the
suit. Being aggrieved by the said decision, the appellant/ plaintiff is in appeal before
us.
11. Before we proceed any further, it would be necessary to set out the provisions
of Section 134 of the Trademarks Act, 1999 and Section 62 of the Copyright Act,
1957. They are as under:-
134. Suit for infringement, etc., to be instituted before district Court.- (1) No
suit
(a) for the infringement of a registered trade mark, or
(b) relating to any right in a registered trade mark, or
(c) for passing off arising out of the use by the defendant of any trade mark which
is identical with or deceptively similar to the plaintiffs trade mark, whether registered
or unregistered.
shall be instituted in any court inferior to a District Court having jurisdiction to try the
suit.
(2) For the purpose of clauses (a) and (b) of sub-section (1), a District Court
having jurisdiction shall, notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a
District Court within the local limits of whose jurisdiction, at the time of the
institution of the suit or other proceeding, the person instituting the suit or proceeding,
or where there are more than one such person any of them, actually and voluntarily
resides or carries on business or personally works for gain.
Explanation. For the purpose of sub-section (2), person includes the registered
proprietor and the registered user. 62. Jurisdiction of court over matters arising
under this Chapter:- (1) Every suit or other civil proceeding arising under this
Chapter in respect of the infringement of copyright in any work or the infringement of
any other right conferred by this Act shall be instituted in the direct court having
jurisdiction.
158 World Wrestling Entertainment, Inc. v. M/s Reshma Collection

(2) For the purpose of sub-section (1), a district court having jurisdiction shall,
notwithstanding anything contained in the Code of Civil Procedure, 1908(5 of 1908),
or any other law for the time being in force include a district court within the local
limits of whose jurisdiction, at the time of the institution of the suit or other
proceedings, the person instituting the suit or other proceeding or, where there are
more than one such persons, any of them actually and voluntarily resides or carries on
business or personally works for gain.
12. The provisions of Section 134 (2) of the Trademarks Act, 1999 and of
Section 62(2) of the Copyright Act, 1957 are material. Both the provisions are
virtually identical. They are both non-obstante provisions inasmuch as it is clearly
stated therein that they are notwithstanding anything contained in the Code of Civil
Procedure, 1908, or any other law for the time being in force. Furthermore, the word
include is used in both the provisions so as to include a District Court within the
local limits of whose jurisdiction, at the time of institution of the suit or other
proceeding, the person instituting the suit or proceeding, or where there are more than
one such person, any of them, actually and voluntarily resides or carries on
business or personally works for gain. Insofar as the present case is concerned, it is
not claimed by the appellant/ plaintiff that it resides or personally works for gain in
Delhi. It has, as pointed out above, taken the plea that it carries on business in
Delhi because, according to it, its programmes are broadcast in Delhi; its merchandise
and books are available for sale in Delhi; and its goods and services are sold to
customers in Delhi through its website which can be accessed in Delhi over the
internet.
Therefore, the entire case turns on the meaning to be given to the expression
carries on business as appearing in the above two provisions. In Dhodha House
(supra), the Supreme Court, inter alia, considered the meaning of the expression
carries on business. The following extracts from the said decision would be
relevant:-
46. The expression carries on business and the expression personally works for
gain connote two different meanings. For the purpose of carrying on business only
presence of a man at a place is not necessary. Such business may be carried at a place
through an agent or a manager or through a servant. The owner may not even visit
that place. The phrase carries on business at a certain place would, therefore, mean
having an interest in a business at that place, a voice in what is done, a share in the
gain or loss and some control thereover. The expression is much wider than what the
expression in normal parlance connotes, because of the ambit of a civil action within
the meaning of section 9 of the Code. But it is necessary that the following three
conditions should be satisfied, namely,
World Wrestling Entertainment, Inc. v. M/s Reshma Collection 159

(1) The agent must be a special agent who attends exclusively to the business of the
principal and carries it on in the name of the principal and not a general agent who
does business for any one that pays him. Thus, a trader in the mufassil who habitually
sends grain to Madras for sale by a firm of commission agents who have an
independent business of selling goods for others on commission, cannot be said to
carry on business in Madras. So a firm in England, carrying on business in the
name of A.B. & Co., which employs upon the usual terms a Bombay firm carrying on
business in the name of C.D. & Co., to act as the English firm's commission agents in
Bombay, does not carry on business in Bombay so as to render itself liable to be
sued in Bombay.
The person acting as agent must be an agent in the strict sense of the term. The
manager of a joint Hindu family is not an agent within the meaning of this
condition.
(3) To constitute carrying on business at a certain place, the essential part of
the business must take place in that place. Therefore, a retail dealer who sells goods in
the mofussil cannot be said to carry on business in Bombay merely because he has
an agent in Bombay to import and purchase his stock for him. He cannot be said to
carry on business in Bombay unless his agent made sales there on his behalf. A
Calcutta firm that employs an agent at Amritsar who has no power to receive money
or to enter into contracts, but only collects orders which are forwarded to and dealt
with in Calcutta, cannot be said to do business in Amritsar. But a Bombay firm that
has a branch office at Amritsar, where orders are received subject to confirmation by
the head office at Bombay, and where money is paid and disbursed, is carrying on
business at Amritsar and is liable to be sued at Amritsar. Similarly a Life Assurance
Company which carries on business in Bombay and employs an agent at Madras who
acts merely as a Post Office forwarding proposals and sending moneys cannot be said
to do business in Madras. Where a contract of insurance was made at place A and the
insurance amount was also payable there, a suit filed at place B where the insurance
Co. had a branch office was held not maintainable. Where the plaintiff instituted a suit
at Kozhikode alleging that its account with the defendant Bank at its Calcutta branch
had been wrongly debited and it was claimed that that court had jurisdiction as the
defendant had a branch there, it was held that the existence of a branch was not part of
the cause of action and that the Kozhikode Court therefore had no jurisdiction. But
when a company through incorporated outside India gets itself registered in India and
does business in a place in India through its agent authorized to accept insurance
proposals, and to pay claims, and to do other business incidental to the work of
agency, the company carries on business at the place of business in India. [See Mulla
on the Code of Civil Procedure, 15 th Edn., Vol.I, pp 246-47.]
160 World Wrestling Entertainment, Inc. v. M/s Reshma Collection

47. A corporation in view of Explanation appended to Section 20 of the Code would

be deemed to be carrying on business inter alia at a place where it has a subordinate
office. Only because, its goods are being sold at a place would thus evidently not
mean that it carries a business at that place.
51. The plaintiff was not a resident of Delhi. It has not been able to establish that it
carries on any business at Delhi. For our purpose, the question as to whether the
defendant had been selling its produce in Delhi or not is wholly irrelevant (sic). It is
possible that the goods manufactured by the plaintiff are available in the market of
Delhi or they are sold in Delhi but that by itself would not mean that the plaintiff
carries on any business in Delhi.
From the above extracts, it is evident that when we say that a person carries on
business at a place we mean that the person has an interest in a business at that place,
a voice in what is done, a share in the gain or loss and some control at that place.
There is no doubt that a person may carry on business at a place not necessarily by
himself but through an agent or a manager or through a servant. But, as pointed out in
Dhodha House (supra), three conditions have to be fulfilled: (i) the agent must be a
special agent who attends exclusively to the business of the principal and carries it on
in the name of the principal and not as a general agent who does business for any one
that pays him; (ii) the person acting as agent, must be an agent in the strict sense of
the term and a manager of a Joint Hindu Family cannot be regarded as an agent
within the meaning of this condition; and (iii) to constitute carrying on business at
a certain place, the essential part of the business must be performed at that place. An
illustration of which is given in the above extract itself where a Bombay firm has a
branch office at Amritsar, where orders are received, subject to confirmation by the
head office at Bombay, and where money is paid and disbursed. Such a firm is said to
be carrying on business at Amritsar and is liable to be sued at Amritsar.
15. Mr Praveen Anand, the learned counsel appearing on behalf of the appellant/
plaintiff, submitted before us, after placing reliance on Exphar SA and Another v.
Eupharma Laboratories Limited and Another: AIR 2004 SCC 1682 that the use
of the word include in Section 134(2) of the Trademarks Act, 1999 and Section
62(2) of the Copyright Act, 1957 make the provisions broader than Section 20 of the
CPC. There is no dispute with this proposition. There is also no dispute with the
proposition of the learned counsel for the appellant that the expression carries on
business is not confined to the head office, but can also include a branch office. This
proposition is based on a decision of the Madras High Court in Wipro Limited
(supra). But, this proposition is of no use to the appellant/ plaintiff inasmuch as it is
not the case of the appellant/ plaintiff that it has any office within the territorial limits
of this Court, what to speak of a branch office.
World Wrestling Entertainment, Inc. v. M/s Reshma Collection 161

16. Faced with this eventuality, Mr Anand submitted that, in fact, there is no need to
have any office at all at a particular place for establishing the fact that a person carries
on business at that place. He placed reliance, once again, on Wipro Limited (supra),
wherein it was observed that the plain meaning of the expression carries on
business only conveys that wherever there is a business activity be it the principal
place or branch or branches the party concerned is said to carry on business at such
places. In fact, we may point out that Mr Anand need not haved laboured on this point
at all because in Dhodha House (supra) itself, the Supreme Court had clearly
observed that for the purpose of carrying on business, the presence of the person
concerned at a particular place was not at all necessary and that such business could
be carried on at that place through an agent or a manager or through a servant. Mr
Anand also submitted that while considering the question of territorial jurisdiction at
the threshold stage and particularly while considering the question of return of a plaint
under Order 7 Rule 10 CPC, only the averments made in the plaint ought to be seen
and, if, on a demurrer, a case for territorial jurisdiction has been made out, the plaint
ought not to be returned. In our view, there is no quarrel with this proposition either.
17. The main issue before us is one of considering as to whether on the basis of the
averments made in the plaint, the appellant/ plaintiff carries on business in Delhi. It is
nowhere pleaded in the plaint that the appellant/ plaintiff, has an agent or a manager
or a servant, through whom the appellant/ plaintiff carries on business in Delhi. As
pointed out above, it is also not the appellant/ plaintiffs case that it has an office in
Delhi. The question then arises as to whether the third condition specified in Dhodha
House (supra) is satisfied or not. If we recall, in Dhodha House (supra), the Supreme
Court had observed that the expression carries on business , as appearing in the
above two provisions, is much wider than what the expression in normal parlance
connotes because of the ambit of a civil action within the meaning of Section 9 of the
CPC. The Supreme Court, however, cautioned that although the expression has a very
wide meaning, it is necessary that the three conditions specified in the said decision
should be satisfied.
18. Insofar as the first two conditions are concerned, they relate to agents. Inasmuch
as it is an admitted position that the appellant/ plaintiff has no agent in Delhi, those
two conditions are clearly not fulfilled. However, it is the appellant/ plaintiffs case
that it carries on business in Delhi directly inasmuch as its goods and services are sold
to consumers in Delhi through its website which is accessed in Delhi. It is on this
basis that the learned counsel for the appellant/ plaintiff submitted that the decision in
Dhodha House (supra) as also in Archie Comic (supra) would really not be
applicable in the present case as in those decisions web-based business models, which
have been referred to as the new media, were not considered. The question which
then arises is whether the introduction and spread of e-commerce and business over
the internet impacts the meaning of the expression carries on business at a certain
162 World Wrestling Entertainment, Inc. v. M/s Reshma Collection

place. The learned Single Judge, as we have pointed out above, felt that the
introduction of the new business models of doing business over the internet was not
any different from the old model of doing business over the telephone or fax. He had
placed reliance on the Supreme Court decision in the case of Bhagwan
Goverdhandas Kedia (supra).
19. Considering the fact that in Dhodha House (supra), the third condition stipulated
that to constitute carrying on business at a certain place, the essential part of the
business must take place there, it would be necessary to examine this aspect in the
backdrop of business over the internet. When a transaction takes place over the
internet, where is the contract concluded? This is the question which needs to be
answered. In other words, at which place does the essential part of the business
transaction take place? The example of the Bombay firm having a branch office at
Amritsar, where orders were received, subject to confirmation by the head office at
Bombay and where money was paid and disbursed, needs to be examined in the
context of internet transactions. In that example, it was noted that the Bombay firm
could be said to be carrying on business at Amritsar and was liable to be sued at
Amritsar. In the present case, the plaintiff/ appellant is incorporated in USA. It has a
website. We do not know as to where that website is hosted. The server would, in all
likelihood, be in USA. It has not been pleaded that the website of the appellant/
plaintiff is hosted on a server in Delhi. Therefore, it can be safely presumed that the
web server is not located in Delhi. However, if a customer in Delhi wishes to
purchase an article, which is available on the website of the appellant/ plaintiff, the
purchaser in Delhi accesses the said website on his or her computer in Delhi. The said
purchaser places the order for the said article from his computer in Delhi. The
payment is made either through a credit/ debit card or through a cash card from Delhi
and ultimately the goods are delivered to the customer in Delhi. In the nature of such
transactions, the question arises as to which is the place where the essential part of the
business occurs?
20. We may recall that the learned Single Judge had referred to the Supreme Court
decision in Bhagwan Goverdhandas Kedia (supra), wherein transactions over the
telephone and telegraph had been considered. It would be instructive to examine that
decision of the Supreme Court . The facts before the Supreme Court in Bhagwan
Goverdhandas Kedia (supra) were that the plaintiff therein had commenced an action
in the City Civil Court at Ahmedabad against the defendant for a decree of Rs
31,150/- on the plea that the defendants had failed to supply cotton seed cake, which
they had agreed to supply under an oral contract entered into on 22.07.1959, which
had been negotiated between the parties through a long distance conversation over the
telephone. The question arose as to whether the City Civil Court at Ahmedabad had
jurisdiction to entertain the said suit. The offer to purchase cotton seed cake had
emanated from the plaintiff and that offer had been accepted by the defendant. The
World Wrestling Entertainment, Inc. v. M/s Reshma Collection 163

City Civil Court held that as the contract was concluded over the telephone, the place
where the acceptance of the offer is intimated to the offeror is the place where the
contract is made, and, therefore, the City Civil Court at Ahmedabad would have
jurisdiction to try the suit. The matter travelled up to the Supreme Court, which, by a
majority decision, upheld the conclusion of the City Civil Court at Ahmedabad by
holding that : -
The trial Court was therefore right in the view which it has taken that a part of the
cause of action arose within the jurisdiction of the Civil City Court, Ahmedabad,
where acceptance was Communicated by telephone to the plaintiffs. In doing so, the
Supreme Court considered the relevant provisions of the Indian Contract Act, 1872 as
also the common law of England. The Supreme Court also undertook to compare
contracts concluded over the post and telegraph on the one hand and contracts
concluded over the telephone on the other. The Supreme Court noted that acceptance
and intimation of acceptance of an offer are both necessary to result in a binding
contract. The Supreme Court held that in the case of a contract which consists of
mutual promises, the offeror must receive intimation that the offeree has accepted his
offer and has signified his willingness to perform his promise. The Supreme Court
further noted that when parties are in the presence of each other, the method of
communication will depend upon the nature of the offer and the circumstances in
which it is made and that when an offer is orally made, acceptance may be expected
to be made by an oral reply, but even a nod or other act which indubitably intimates
acceptance, may suffice. Furthermore, if the offeror receives no such intimation, even
if the offeree has resolved to accept the offer, a contract may not result. The Supreme
Court further observed as under:-
But on this rule is engrafted an exception based on ground of convenience which
has the merit not of logic or principle in support, but of long acceptance by judicial
decisions. If the parties are not in the presence of each other, and the offeror has not
prescribed a mode of communication of acceptance, insistence upon communication
of acceptance of the offer by the offeree would be found to be inconvenient, when the
contract is made by letters sent by post..
The exception has long been recognised in the United Kingdom and in other countries
where the law of contracts is based on the common law of England. Authorities in
India also exhibit a fairly uniform trend that in case of negotiations by post the
contract is complete when acceptance of the offer is put into a course of transmission
to the offeror: see Baroda Oil Cakes Traders case ILR (1954) Bom 1137: (AIR) 1954
Bom 451, and cases cited therein. A similar rule has been adopted when the offer and
acceptance are by telegrams. The exception to the general rule requiring intimation of
acceptance may be summarised as follows. When by agreement, course of conduct, or
usage of trade, acceptance by post or telegram is authorised, the bargain is struck and
164 World Wrestling Entertainment, Inc. v. M/s Reshma Collection

the contract is complete when the acceptance is put into a course of transmission by
the offeree by posting a letter or dispatching a telegram. (underlining added)
21. From the above, it is clear that the general rule is that the contract is complete
when the offeror receives intimation that the offeree has accepted his offer. An
exception to this has been carved out in respect of contracts negotiated by
postal communications or telegrams. The exception being that the bargain in such
cases (post or telegram) would be struck and the contract would be complete when the
acceptance of the offeree is put into a course of transmission by him by posting a
letter or despatching a telegram. The Supreme Court then held as under:-
10. It is true that the Post and Telegraphs Department has general control over
communication by telephone and especially long distance telephone, but that is not a
ground for assuming that the analogy of a contract made by post will govern this
mode of making contracts. In the case of correspondence by post or telegraphic
communication, a third agency intervenes and without the effective intervention of
that third agency, Letters or messages cannot be transmitted. In the case of a
conversation by telephone, once a connection is established there is in the normal
course no further intervention of another agency. Parties holding conversation on the
telephone are unable to see each other: They are also physically separated in space,
but they are in the hearing of each other by the aid of a mechanical contrivance which
makes the voice of one heard by the other instantaneously, and communication does
not depend upon an external agency.(underlining added)
It is obvious that the Supreme Court distinguished the case of a contract negotiated
over the telephone from that of contracts through letters or through telegrams.
Whereas in the latter, there was an intervention of an external agency, which took
time to deliver the acceptance of the offer by the offeree to the offeror, in the former,
the communication of the acceptance was instantaneous once the communication link
had been established. The Supreme Court, by virtue of its majority decision, went on
to hold as under:-
14. Obviously the draftsman of the Indian Contract Act did not envisage use of the
telephone as a means of personal conversation between parties separated in space, and
could not have intended to make any rule in that behalf. The question then is whether
the ordinary rule which regards a contract as completed only when acceptance is
intimated should apply, or whether the exception engrafted upon the rule in respect of
offers and acceptances by post and by telegrams is to be accepted. If regard be had to
the essential nature of conversation by telephone, it would be reasonable to hold that
the parties being in a sense in the presence of each other, and negotiations are
concluded by instantaneous communication of speech, communication of acceptance
is a necessary part of the formation of contract, and the exception to the rule imposed
on grounds of commercial expediency is in-applicable.(underlining added)
World Wrestling Entertainment, Inc. v. M/s Reshma Collection 165

22. It is interesting to note that the Supreme Court had observed that the draftsman
of the Indian Contract Act could not have envisaged use of the telephone as a means
of personal conversation between parties separated in space and could not have
intended to make any rule in that behalf. This applies with greater vigour insofar as
commerce and business over the internet is concerned. Just as in the case of
telephone conversation, there is instantaneous communication, so, too, in the case of
business over the internet. Therefore, the rule that applies to contracts concluded over
the telephone would apply with equal vigour to contracts concluded over the internet.
In other words, contracts would be completed at the place where the acceptance is
communicated. In the case before the Supreme Court, the offer had emanated from
the plaintiff, who was situated in Ahmedabad. The acceptance of the offer was by the
defendants, who were to make the supply of cotton seed cakes to the plaintiff therein.
The acceptance, since it was over the telephone, was instantaneously communicated
via that technology to the plaintiff at Ahmedabad. The Supreme Court held that the
cause of action would arise within the jurisdiction of the City Civil Court at
Ahmedabad, where the acceptance was communicated by telephone to the plaintiff.
23. Let us now apply these principles to the type of transaction over the internet,
which we have explained above. The website of the appellant/ plaintiff refers to
various goods and services. It is not an offer but an invitation to an offer, just as a
menu in a restaurant. The invitation, if accepted by a customer in Delhi, becomes an
offer made by the customer in Delhi for purchasing the goods advertised on the
website of the appellant/ plaintiff.
When, through the mode of the software and the browser, the transaction is confirmed
and payment is made to the appellant/ plaintiff through its website, the appellant /
plaintiff accepts the offer of the customer at Delhi. Since the transaction between the
two takes place instantaneously, the acceptance by the appellant/ plaintiff is
instantaneously communicated to its customer through the internet at Delhi.
Therefore, in such a case, part of the cause of action would arise in Delhi.
21. But, we are not concerned with the question of cause of action between the
appellant/ plaintiff and its customers in Delhi because the defendants are not such
customers and they are, in any event, all residents of Mumbai. What we are
examining is whether the third condition specified in Dhodha House (supra) is
satisfied or not. In other words, if the contracts and/ or transactions entered into
between the appellant/ plaintiff on the one hand and its customers are being concluded
in Delhi, can it not be said that the essential part of the business of the appellant/
plaintiff, insofar as its transactions with customers in Delhi are concerned, takes place
in Delhi? The offers are made by customers at Delhi. The offers are subject to
confirmation/ acceptance of the appellant/ plaintiff through its website. The money
would emanate or be paid from Delhi. Can it not then be considered that the appellant/
166 World Wrestling Entertainment, Inc. v. M/s Reshma Collection

plaintiff is, to a certain extent, carrying on business at Delhi? In our view, it would be
so. Because of the advancements in technology and the rapid growth of new models
of conducting business over the internet, it is possible for an entity to have a virtual
presence in a place which is located at a distance from the place where it has a
physical presence. The availability of transactions through the website at a particular
place is virtually the same thing as a seller having shops in that place in the physical
world. Let us assume for the sake of argument that the appellant/ plaintiff had a shop
in Delhi from where it sold its various goods and services. In that case, it could not be
denied that the plaintiff carried on business in Delhi. This is apart from the fact that
the appellant/ plaintiff may also have been regarded as having voluntarily resided in
Delhi. When the shop in the physical sense is replaced by the virtual shop because
of the advancement of technology, in our view, it cannot be said that the appellant/
plaintiff would not carry on business in Delhi.
22. Therefore, in our view, although the learned Single Judge had made a correct
reference to the decision of the Supreme Court in the case of Bhagwan
Goverdhandas Kedia (supra), the full ramifications of that decision were not
perceived by him. When the two decisions of the Supreme Court in Bhagwan
Goverdhandas Kedia (supra) and Dhodha House (supra) are considered in the
manner indicated above, it would appear that, on the averments made by the
appellant/ plaintiff in the plaint, the Delhi High court would, on a demurrer, have
jurisdiction to entertain the suit inasmuch as the appellant/ plaintiff would be regarded
as carrying on business in Delhi within the meaning of the expression under Section
134(2) of the Trademarks Act, 1999 and Section 62(2) of the Copyright Act, 1957.
Consequently, the learned Single Judge ought not to have returned the plaint under
Order 7 Rule 10 CPC. As a result, the impugned order is set aside and the suit is
restored to its original number and the same be placed before the Roster Bench for
further steps therein on 28.10.2014, in the first instance. This, however, would not
preclude the defendants from raising the plea of jurisdiction on facts which, if raised,
could be considered by the court based on the evidence and upon the law explained
above. The appeal is allowed, as above.

*****
 Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd.
2004 Supp(2) SCR 465

RUMA PAUL J. - Leave granted.

The principal question raised in this appeal in whether internet domain names are subject
to the legal norms applicable to other intellectual properties such as trade marks? The
appellant which was incorporated in 1995 registered several domain names like
www.sifynet, www.sifymall.com, www.sifyrealestate.com etc. in June 1999 with the
internationally recognised Registrars, viz the internet Corporation for Assigned Names
and Numbers (ICANN) and the World Intellectual Property Organisation (WIPO). The
word 'Sify is a coined word which the appellant claims to have invented by using
elements of its corporate name, Satyam Infoway. The appellant claims a wide reputation
and goodwill in the name 'Sify'.
The respondent started carrying on business of internet marketing under the domain
names, www.siffynet.net and www.sijfynet.com from 5th June 2001. The respondent
claims to have obtained registration of its two domain names with ICANN on 5th June,
2001 and 16th March, 2002 respectively.
Coming to know of the use of the word 'Siffy' as part of the respondent's corporate and
domain name, the appellant served notice on the respondent to cease and desist from
either carrying on business in the name of Siffynet Solutions (P) Ltd. or Siffynet
Corporation and to transfer the domain names to the appellant. The respondent refused.
The appellant filed a suit in the City Civil Court against the respondent on the basis that
the respondent was passing off its business and services by using the appellant's business
name and domain name. An application for temporary injunction was also filed. The City
Civil Court Judge allowed the application for temporary injunction on the grounds that
the appellant was the prior user of the trade name 'Sify', that it had earned good reputation
in connection with the internet and computer services under the name 'Sify', that the
respondent's domain names were similar to the domain name of the appellant and that
confusion would be caused in the mind of the general public by such deceptive similarity.
It was also found that the balance of convenience was in favour of granting an injunction
in favour of the appellant.
The respondent preferred an appeal before the High Court. An interim stay of the City
Civil Judge's judgment was granted. The appeal was ultimately allowed by the High
Court. This order is the subject matter of challenge in this appeal. In allowing the appeal,
the High Court was of the view that merely because the appellant had started the business
first, no order could have been granted in its favour without considering where the
balance of convenience lay. It was held that the finding that the appellant had earned a
reputation and goodwill in respect of the domain name 'Sify' was not based on a
consideration of the necessary factors. On the other hand, the documents on record
showed that the respondent was doing business other than that done by the appellant and
168 Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd.

since there was no similarity between the two businesses, there was no question of
customers being misled or misguided or getting confused. It was held that the respondent
had invested a large amount in establishing its business and that it had enrolled about
50,000 members already. It was held that the respondent would be put to great hardship
and inconvenience and also irreparable injury in case the injunction order was granted.
On the other hand, since the appellant had a separate trade name, namely, Satyam
Infoways, no injury or hardship would be caused to the appellant if the order of injunction
was not granted.
From the narration of these facts, it is clear that both the Courts below had proceeded on
the basis that the principles relating to passing off actions in connection with trademarks
are applicable to domain names. However, the respondent has contended that a Domain
Name could not be confused with "property names" such as Trade Marks. According to
the respondent, a domain name is merely an address on the internet. It was also submitted
that registration of a domain name with ICANN did not confer any intellectual property
right; that it is a contract with a registration authority allowing communication to reach
the owner's computer via internet links channelled through the registration authority's
server and that it is akin to registration of a company name which is a unique identifier of
a company but of itself confers no intellectual property rights.
A "trade mark" has been defined in section 2(zb) of the Trade Marks Act, 1999 (hereafter
referred to as "the Act") as meaning :
"trade mark means a mark capable of being represented graphically and which is capable
of distinguishing the goods or services of one person from those of others and may
include shape of goods, their packaging and combination of colours".
Therefore a distinctive mark in respect of goods or services is a 'Trade mark'.
A "mark" has been defined in Section 2(m) as including "a device, brand, heading, label,
ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination
of colours or any combination thereof and a 'name' includes any abbreviation of a name
(S.2(k).
"Goods" have been defined in Section 2(j) as meaning "anything" which is the subject of
trade or manufacture, and "Services" has been defined in section 2(z) as meaning :
"service of any description which is made available to potential users and includes the
provision of services in connection with business of any industrial or commercial matters
such as banking, communication, education, financing, insurance, chit funds, real estate,
transport, storage, material treatment, processing, supply of electrical or other energy,
boarding, lodging, entertainment, amusement, construction, repair, conveying of news or
information and advertising."
Analysing and cumulatively paraphrasing the relevant parts of the aforesaid definitions,
the question which is apposite is whether a domain name can be said to be a word or
name which is capable of distinguishing the subject of trade or service made available to
potential users of the internet?
Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd. 169

The original role of a domain name was no doubt to provide an address for computers on
the internet. But the internet has development from a mere means of communication to a
mode of carrying on commercial activity. With the increase of commercial activity on the
internet, a domain name is also used as business identifier. Therefore, the domain name
not only serves as an address for internet communication but also identifies the specific
internet site. In the commercial field, each domain name owner provides
information/services which are associated with such domain name. Thus domain name
may pertain to provision of services within the meaning of Section 2(z). A domain name
is easy to remember and use, and is chosen as an instrument of commercial enterprise not
only because it facilitates the ability of consumers to navigate the Internet to find websites
they are looking for, but also at the same time, services to identify and distinguish the
business itself, or its goods or services, and to specify its corresponding online internet
location. Consequently a domain name as an address must, of necessary, be peculiar and
unique and where a domain name is used in connection with a business, the value of
maintaining an exclusive identity becomes critical. "As more and more commercial
enterprises trade or advertise their presence on the web, domain names have become more
and more valuable and the potential for dispute is high. Whereas large number of
trademarks containing the same name can comfortably co-exist because they are
associated with different products, belong to business in different jurisdictions etc., the
distinctive nature of the domain name providing global exclusivity is much sought after.
The fact that many consumers searching of a particular site are likely, in the first place, to
try and guess its domain name has further enhanced this value"2. The answer to the
question posed in the preceding paragraph is
1. Intellectual and the Internet-RODNEY D RYDER-Page 96 to 97.
2. See Information Technology Law Diane Rowland and Elizabeth Macdonald 2nd
Edition p. 251. therefore an affirmative.
The next question is would the principles of trade mark law and in particular those
relating to passing off apply? An action for passing off. as the phrase "passing off itself
suggests, is to restrain the defendant from passing off its goods or services to the public as
that of the plaintiff's. It is an action not only to preserve the reputation of the plaintiff but
also to safeguard the public. The defendant must have sold its goods or offered its service
in a manner which has deceived or would be likely to deceive the public into thinking that
the defendant's goods or services are the plaintiff's. The action is normally available to the
owner of a distinctive trademark and the person who, if the word or name is an invented
one. invents and uses it. If two trade rivals claim to have individually invented the same
mark, then the trader who is able to establish prior user will succeed. The question is, as
has been aptly put, who gets these first? It is not essential for the plaintiff to prove long
user to establish reputation in a passing off action. It would depend upon the volume of
sales and extent of advertisement.
The second element that must be established by a plaintiff in a passing off action is
misrepresentation by the defendant to the public. The word misrepresentation does not
170 Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd.

mean that the plaintiff has to prove any malafide intention on the part of the defendant.
Ofcourse, if the misrepresentation is intentional, it might lead to an inference that the
reputation of the plaintiff is such that it is worth the defendant's while to cash in on it. An
innocent misrepresentation would be relevant only on the question of the ultimate relief
which would be granted to plaintiff. What has to be established is the likelihood of
confusion in the minds of the public, (the word "public" being understood to mean actual
or potential customers or users) that the goods or services offered by the defendant are the
goods or the services of the plaintiff. In assessing the likelihood of such confusion the
courts must allow for the "imperfect recollection of a person of ordinary memory"4 The
third element of a passing off action is loss or the likelihood of it.
3 CADBURYSCEHWEPPES v. PUB SQUASH (1981) RFC 429. ERVEN WARNINA
v. TOWNEND. (1980) RFC 31.
4 ARISTOC v. RYSTA. (1945) AC 68.
The use of the same or similar domain name may lead to a diversion of users which could
result from such users, mistakenly accessing one domain name instead of another. This
may occur in e-commerce with its rapid progress and instant (and theoretically limitless)
accessibility to users and potential customers and particularly so in areas of specific
overlap. Ordinary consumers/users seeking to locate the functions available under one
domain name may be confused if they accidentally arrived at a different but similar web
site which offers no such services. Such users could well conclude that the first domain
name owner had mis-represented its goods or services through its promotional activities
and the first domain owner would thereby lose their custom. It is apparent therefore that a
domain name may have all the characteristics of a trademark and could found an action
for passing off.
Over the last few years the increased user of the internet has led to a proliferation of
disputes resulting in litigation before different High Courts in this country. The Courts
have consistently applied the law relating to passing off to domain name disputes. Some
disputes were between the trademark holders and domain name owners. Some were
between domain name owners themselves. These decisions namely Rediff
Communication Ltd. v. Cyberbooth and Anr., AIR (2000) Bombay 27, Yahoo Inc. v.
Akash Arora, (1999) PTC 19 201, Dr. Reddy's Laboratories Ltd. v. Manu Kosuri, (2001)
PTC 859 (Del.), Tata Sons Ltd. v. Manu Kosuri, (2001) PTC 432 (Del.), Acqua Minerals
Ltd. v. Pramod Borse & Anr., (2001) PTC 619 (Del.), and info Edge (India) Pvt. Ltd. &
Anr. v. Shailesh Gupta & Anr., (2002) 24 PTC 355 (Del.) correctly reflect the law as
enunciated by us. No decision of any court in India has been shown to us which has taken
a contrary view. The question formulated at the outset is therefore answered in the
affirmative and the submission of the respondent is rejected.
However, there is a distinction between a trademark and a domain name which is not
relevant to the nature of the right of an owner in connection with the domain name, but is
material to the scope of the protection available to the right. The distinction lies in the
Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd. 171

manner in which the two operate. A trademark is protected by the laws of a country
where such trademark may be registered. Consequently, a trade mark may have multiple
registration in many countries throughout the world. On the other hand, since the internet
allows for access without any geographical limitation, a domain name is potentially
accessible irrespective of the geographical location of the consumers. The outcome of this
potential for universal connectivity is not only that a domain name would require world
wide exclusivity but also that national laws might be inadequate to effectively protect a
domain name. The lacuna necessitated international regulation of the domain name
system (DNS). This international regulation was effected through WIPO and ICANN.
India is one of the 171 states of the world which are members of WIPO. WIPO was
established as a vehicle for promoting the protection, dissemination and use of intellectual
property through the world. Services provided by WIPO to its member states include the
provision of a forum for the development and implementation of intellectual property
policies internationally through treaties and other policy instruments.5 The outcome of
consultation between ICANN and WIPO has resulted in the setting up not only of a
system of registration of domain names with accredited Registrars but also the evolution
of the Uniform Domain Name Disputes Resolution Policy (UDNDR Policy) by ICANN
on 24th October 1999. As far as registration is concerned, it is provided on a first come
first serve basis.
While registration with such Registrars may not have the same consequences as
registration under the Trademark Act, 1999 nevertheless it at least evidences recognised
user of a mark. Besides the UDNDR Policy is instructive as to the kind of rights which a
domain name owner may have upon registration with ICANN accredited Registrars. In
Rule 2 of the Policy, prior to application for registration of a domain name, the applicant
is required to determine whether the domain name for which registration is sought
"infringes or violates someone else's rights". A person may complain before
administration-dispute-resolution service providers listed by ICANN under Rule 4(a) that
:
(i) a domain name is identical or confusingly similar to a trademark or service mark in
which the complainant has Final Report of WIPO dt. 30.4.1999 rights; and
(ii) the domain name owner/registrant has no right or legitimate interest in respect of the
domain name; and
(iii) a domain name has been registered and is being used in bad faith.
Rule 4(b) has listed by way of illustration the following four circumstances as evidence of
registration and use of a domain name in bad faith.
(i) circumstances indicating that the domain name owner/ registrant has registered or the
domain name owner/registrant has acquired the domain name primarily for the purpose of
selling, renting or otherwise transferring the domain name registration to the complainant
who is the owner of the trademark or service mark or to a competitor of that complainant,
172 Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd.

for valuable consideration in excess of its documented out-of-pocket costs directly related
to the domain name; or
(ii) the domain name owner/registrant has registered the domain name in order to prevent
the owner of the trademark or service mark from reflecting the mark in a corresponding
domain name, provided that it has engaged in a pattern of such conduct; or
(iii) the domain name owner/registrant has registered the domain name primarily for the
purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the domain name owner/registrant has intentionally
attempted to attract, for commercial gain internet users, to its web site or other on-line
location, by creating a likelihood of confusion with the complainants mark as to the
source, sponsorship, affiliation, or endorsement of the domain name owner/registrant web
site or location or of a product or service on its web site or location."
The defences available to such a complaint have been particularised "but without
limitation", in Rule 4(c) as follows :
(i) before any notice to the domain name owner/registrant, the use of, or demonstrable
preparations to use, the domain name or a name corresponding to the domain name in
connection with bonafide offering of goods or services; or
(ii) the domain name owner/registrant (as an individual, business, or other organization)
has been commonly known by the domain name, even if it has acquired no trademark or
service mark rights; or
(iii) the domain name owner/registrant is making a legitimate non- commercial or fair use
of the domain name, without intent for commercial gain to misleadingly divert consumers
or to tarnish the trademark or service mark at issue".
These rules indicate that the disputes may be broadly categorised as : (a) disputes between
trademark owners and domain name owners and (b) between domain name owners inter
se. What is important for the purposes of the present appeal is the protection given to
intellectual property in domain names. A prior registrant can protect its domain name
against subsequent registrants. Confusing similarity in domain names may be a ground
for complaint and similarity is to be decided on the possibility of deception amongst
potential customers. The defences available to a compliant are also substantially similar
to those available to an action for passing off under trademark law.
Rule 4(k) provides that the proceedings under the UDNDR Policy would not prevent
either the domain name owner/registrant or the complainant from submitting the dispute
to a court of competent jurisdiction for independent resolution, either before proceeding
under ICANN's policy or after such proceeding is concluded. As far as India is concerned,
there is no legislation which explicitly refers to dispute resolution in connection with
domain names. But although the operation of the Trade Marks Act, 1999 itself is not extra
territorial and may not allow for adequate protection of domain names, this does not mean
Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd. 173

that domain names are not to be legally protected to the extent possible under the laws
relating to passing off.
This bring us to the merits of the dispute between the parties. As we have already said, a
passing off action is based on the goodwill that a trader has in his name unlike an action
for infringement of a trademark where as trader's right is based on property in the name as
such. Therefore unless goodwill can be established by the appellant by showing that the
public associates the name 'Sify' with the services provided by the appellant, it cannot
succeed.
The appellant's claim to be a leading information technology services company and one
of the largest internet services providers in the country has not been seriously disputed by
the respondent nor is there any challenge to the appellant's claim that it has more than 5
lac subscribers, 480 Cyber cafes, and 54 points of presence all over India. That it is the
first Indian internet company to be listed in 1999 with NASDAQ where it trades under
the tradename 'Sify' was given extensive coverage in leading national Newspapers. The
appellant has brought on record the stringent conditions and deposit of a large fee for
having a trade name included in the NASDAQ International market. The appellant has
complied with the conditions for listing. The appellants have claimed that its shares are
since 1999 actively traded in on a daily basis on the NASDAQ. It is also claimed that the
appellant has widely used the word Sify as a trade name/domain name for its software
business and services. The appellant's website www.sify.com is claimed to be a
comprehensive internet site with a gamut of subjects to choose from. It has brought out
brochures and issued advertisements offering services in the internet under the name
'Sify'. It has submitted its sale figure and expenses incurred on advertisement and market
promotion of its business under the trademark Sify. It is also claimed that apart from the
fact that the appellant is popularly known as Sify, it has also applied for registration of
more than 40 trademarks with the prefix Sify under the Trade and Merchandise Marks
Act. 1958 (since replaced by the Trade Marks Act, 1999). In support of its claim of
goodwill in respect of the name of 'Sify', the appellant had brought on record press
clippings of articles/newspapers in which the appellant has been referred to as 'Sify'. For
example, a news item published in Hindu on 5th May 2000 talks of "Sify plans of internet
gateways". Another article published in the Business Standard on 11th May 2000 says
"Sify chief sees strong dotcom valuations rising". There are several other publications
filed along with the plaint all of which show that the appellant was referred to as 'Sify'.
That the listing of the appellant with NASDAQ in 1000 under the trade name 'Sify' was
featured on several newspapers has been established by copies of the news items.
Documents have also been produced to show that the appellant had been awarded prizes
in recognition of achievements under the tradename 'Sify'. For example, the Golden Web
Award for the year 2000 was awarded to the appellant's corporate site www.sifycorp.com.
A number of advertisements in connection with "e-market services from Sify".
"Messaging solutions from Sify" have also been filed. It is unfortunate that none of these
documents were even noticed by the High Court. We have, therefore, been constrained to
174 Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd.

appreciate the evidence and on doing so, we have reached, at least prima facie conclusion
that the appellant has been able to establish the goodwill and reputation claimed by it in
connection with the tradename 'Sify'.
Apart from the close visual similarity between 'Sify' and 'Siffy', there is phonetic
similarity between the two names. The addition of 'net' to 'Siffy' does not detract from this
similarity.
According to the respondent the word "Siffynet" which features both as its corporate
name and in its domain names was derived from a combination of the first letter of the
five promoters of the respondent, namely Saleem, Ibrahim, Fazal, Fareed and Yusuf, and
the word "net" implies the business of the respondent. The stand taken by the respondent
is that it was not aware of the appellant's trade name and trading style 'Sify'. This is not
credible for several reasons. In answer to the legal notice issued by the appellant no such
case was made. The refusal of the respondent to comply with the demand notice issued by
the appellant was based only on an alleged difference between the trade name, 'Sify' and
'Siffynet' and a claimed difference in the field or operation. The High Court has not also
found that the respondent-company was unaware or ignorant of the use of the trade name
'Sify' by the appellant. The reason put forward by the respondent for the choice of the
word 'Siffy' as part of its corporate and domain names appears from the second written
statement filed by the respondent before the trial Court where it has been said that the
respondent company was the brain child of its founder Director, Mr. Bawa Salim and that
the word 'Siffy' was invented from the first letters of the five persons involved in the
setting up of the respondent company. But only four names were given. The fifth name
was given in the counter affidavit filed in this Court. In the first written statement and the
first answer to the interlocutory application of the appellant verified by Bawa Salim was
Managing Director of the respondent, no such case as has been put forward now
regarding the choice of the name "Siffy" was made out. In fact in the original written
statement, the respondent had stated that though its domain name "was got registered in
the name of one Mr. C.V. Kumar, now the said person does not have any connection with
this defendant since the second defendant is no longer in existence as a partner(sio)".
Thus, it appears that the respondent may originally have been a firm because C.V. Kumar,
in whose name 'Siffynet' was registered, has been described as a partner. Even if this
inference is incorrect and the respondent was always a company, we are still not
convinced as to the reason why the name "Siffy" was chosen by the respondent. If the
originators of the company were the five persons viz. Salim, Ibrahim, Fazal, Fareed and
Yousuf why was the domain name of the respondent already registered as 'Siffynet' in the
name of Mr. C.V. Kumar? Furthermore, the list of names provided by the respondent to
support its case that 'Siffy' as an original acronym was based on the initial letters of the
respondent company's promoters seems unsupported by any evidence whatsoever. No
document apart from a bare assertion that the five named individuals had any special
collective role in the origination or promotion of the business has been filed. The
appellant's internet based business was, from 1999, high profile. The evident media
Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd. 175

prominence to 'SIFY' and large subscriber base could have left the respondent in no doubt
as to its successful existence prior to the adoption of Siffy as part of its corporate name
and registration of Siffynet and Siffy.com as its domain names. It would therefore appear
that the justification followed the choice and that the respondent's choice of the word
"Siffy" was not original but inspired by the appellant's business name and that the
respondent's explanation for its choice of the word "Siffy" as a corporate and domain
name is an invented post-rationalisation.
What is also important is that the respondent admittedly adopted the mark after the
appellant. The appellant is the prior user and has the right to debar the respondent from
eating into the goodwill it may have built up in connection with the name.
Another facet of passing off is the likelihood of confusion with possible injury to the
public and consequential loss to the appellant. The similarity in the name may lead an
unwary user of the internet of average intelligence and imperfect recollection to assume a
business connection between the two. Such user may, while trying to access the
information or services provided by the appellant, put in that extra 'f' and be disappointed
with the result. Documents have been filed by the respondent directed at establishing that
the appellant name Sify was similar to other domain names such as Scifinet, Scifi.com
etc. The exercise has been undertaken by the respondent presumably to show that the
word 'Sify' is not an original word and that several marks which were phonetically similar
to the appellants' trade name are already registered. We are not prepared to deny the
appellant's claim merely on the aforesaid basis. For one, none of the alleged previous
registrants are before us. For another, the word 'sci- fi is an abbreviation of 'science
fiction' and is phonetically dissimilar to the word Sify. (See Collins Dictionary of the
English Language).
The respondent then says that confusion is unlikely because they operate in different
fields. According to the respondent their business is limited to network marketing unlike
the appellant which carries on the business of software development, software solution
and connected activities. The respondent's assertion is factually incorrect and legally
untenable. A domain name, is accessible by all internet users and the need to maintain an
exclusive symbol for such access is crucial as we have earlier noted. Therefore a
deceptively similar domain name may not only lead to a confusion of the source but the
receipt of unsought for services. Besides the appellants have brought on record printouts
of the respondent's website in which they have advertised themselves as providing inter
alia software solution, integrating and management solutions and software development
covering the same field as the appellant. To take a specific example, the respondent's
brochure explicitly offers Intranet and Extranet solutions which are also explicitly offered
by the appellant. There is clearly an overlap of identical or similar services. It may be
difficult for the appellant to prove actual loss having regard to the nature of the service
and the means of access but the possibility of loss in the form of diverted customers is
more than reasonably probable.
176 Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd.

The last question is - where does the balance of convenience lie? Given the nature of the
business, it is necessary to maintain the exclusive identity which a domain name requires.
In other words, either 'Sify' or 'Siffy' must go. Apart from being the prior user, the
appellant has adduced sufficient evidence to show that the public associates the trade
name SIFY with the appellant. The respondent on the other hand has produced little proof
to establish the averments in support of its case that it had a membership of 50,000. We
are unable to hold, while not commenting on the authenticity of the bills relied on by the
respondents, as the High Court has done, that the bills by themselves show that the
respondent "has been carrying on conferences at different places and enrolling members
who would be transacting with them in the business and like that they have enrolled about
50,000 members already". Similarly, several Bills raised in the name of the respondent in
respect of different items do not by themselves establish that the members of the public
have come to associate the word "Siffy" only with the respondent. Weighed in the balance
of comparative hardship, it is difficult to hold that the respondent would suffer any such
loss as the appellant would unless an injunction is granted. The respondent can carry on
its business and inform its members of the change of name. We are conscious of the fact
that the grant of an interlocutory order may disrupt the respondent's business. But that
cannot be seen as an argument which should deter us from granting relief to the appellant
to which we are otherwise satisfied it is entitled.
The High Courts' finding that no prejudice would be caused to the appellant because it
had another domain name was a consideration which might have been relevant if there
was a case of bonafide concurrent use and where the right to use was co-equal. The
doubtful explanation given by the respondent for the choice of the word ''Sify'' coupled
with the reputation of the appellant can rationally lead us to the conclusion that the
respondent was seeking to cash in on the appellant's reputation as a provider of service on
the internet. In view of our findings albeit prima facie on the dishonest adoption of the
appellant's tradename by the respondent, the investments made by the appellant in
connection with the trade name, and the public association of the tradename Sify with the
appellant, the appellant is entitled to the relief it claims. A different conclusion may be
arrived at if evidence to the contrary is adduced at the trial. But at this stage and on the
material before the Court, we are of the view that the conclusion of the High Court to the
contrary was unwarranted.
The appeal is accordingly allowed. The decision of the High Court is set aside and that of
the City Civil Court affirmed. There will be no order as to costs.
*****
 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy
CS (OS) No. 894/2008, Del(DB
S. Muralidhar,J.
The learned single Judge has by an order dated 11.8.2008 referred for the decision of the
Division Bench of this Court questions concerning the jurisdiction of this Court to
entertain the present suit.
2. The factual background in which the questions arise requires to be briefly
recapitulated. A peculiar feature of the present suit which is an action for passing of is
that neither the plaintiff nor the Defendants is located within the territorial jurisdiction of
this Court. The Plaintiff is a company having its registered office at Singapore whereas
the Defendants 1 and 2 are at Hyderabad. Defendant no. 1 is the promoter of the
Defendant no. 2 company.
The Case of the Plaintiff
The Plaintiff claims that it is part of a group of companies involved in the hospitality
business. Since 1994 it adopted and used the word mark Banyan Tree and also the
banyan tree device. It is claimed that on the account of the extensive and continuous use
by the Plaintiff of the said mark and device in relation to its business, they have acquired
secondary meaning, have become highly distinctive and have come to be associated with
the Plaintiff and its sister concerns. The Plaintiff maintains the websites
www.banyantree.com and www.banayantreespa.com since 1996. The said websites are
accessible in India.
4. It is not in dispute that the Plaintiff does not hold a registration for the said mark
and device in India. Its application for registration is stated to be pending. Since the year
2002, the Plaintiff has, in collaboration with the Oberoi Group, been operating 15 spas
across India. In October 2007, the Plaintiff learnt that the Defendants had initiated work
on a project under the name Banyan Tree Retreat. The Plaintiff has averred that the
word mark and the device adopted by the Defendants in relation to their retreat is
deceptively similar to that of the Plaintiff. The Plaintiff states that the Defendants have
advertised their project on their website www.makprojects.com/banyantree. The Plaintiff
alleges that the use of the said mark and device by the Defendants was dishonest and was
an attempt to encash on the reputation and goodwill of the Plaintiff and was calculated to
cause confusion and deception among the public by passing off the services of the
Defendants as that of the Plaintiff. Accordingly, the present suit was filed by the Plaintiff
for an injunction to restrain the Defendants from the use of the said mark and device.
5. The learned single Judge has, in the referral order dated 11.8.2008, noticed that the
plaintiff has in para 30 of the plaint claimed that this Court has the territorial jurisdiction
under Section 20 of the Code of Civil Procedure, 1908 (CPC) to entertain the suit.
According to the Plaintiff the Defendants solicit business through use of the impugned
mark BANYAN TREE RETREAT and the Banyan device in Delhi. It is stated that the
178 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

Defendants have presence in Delhi through their website

http://www.makprojects.com/banyantree.htm which is accessible in Delhi. It is further
contended that the said website is not a passive website. It not only provides contact
information but also seeks feedback and inputs from its customers through an interactive
web-page. Further, the Plaintiff submits that the services of the Defendants are being
offered to the customers in Delhi also because of the ubiquity, universality and utility of
the features of the Internet and the World Wide Web and hence the cause of action has
arisen within the jurisdiction of this Court.
The referral order
6. In the referral order, the learned single Judge has examined the above claim of the
Plaintiff as to the territorial jurisdiction of this Court on account of the Defendants
hosting a website which is accessible in Delhi and through which not only information
can be obtained by a viewer sitting in Delhi but also a feedback and input can be sent to
the Defendants through the said web-page. After noticing the developments in the law in
India, Canada, USA
and England, the learned single Judge has formulated the following questions for
consideration by the Division Bench:
1. Whether this court can entertain the present suit, having regard to the averments and
documents, in the context of special provisions in to the Trademark and Copyrights Act,
which do not provide for exercise of jurisdiction based on internet or web-presence of
such alleged infringers, even while making explicit departure from the general law as to
territorial jurisdiction;
Whether the court can entertain the present suit, in the absence of a long arm statute,
having regard to the existing state of law, particularly Section 20, CPC, and the impact, if,
any of the Information Technology Act, 2009 on it;
3. Applicable standards for entertaining a suit, based on use of a trademark by a
Defendant, on its website, or infringement or passing off of the plaintiffs trademark, in
such website and the relevant criteria to entertain such suits;
4. Applicable standards and criteria where the plaintiff relies exclusively on trap orders
or transactions, in relation to passing off, or trademark infringement cases, as constituting
use or cause of action, as the case may be.

The questions as reframed

7. Having considered the submissions of Mr. Praveen Anand, learned counsel for the
Plaintiff, we consider it appropriate to reframe the questions referred to us for our opinion
as under:
Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy 179

(i) For the purposes of a passing off action, or an infringement action where the
Plaintiff is not carrying on business within the jurisdiction of a court, in what
circumstances can it be said that the hosting of a universally accessible website by the
Defendants lends jurisdiction to such Court where such suit is filed (the forum court)?
(ii) In a passing off or infringement action, where the defendant is sought to be sued
on the basis that its website is accessible in the forum state, what is the extent of the
burden on the Plaintiff to prima facie establish that the forum court has jurisdiction to
entertain the suit?
(iii) Is it permissible for the Plaintiff to establish such prima facie case through trap
orders or trap transactions?
8. At the outset it needs to be noted that the present suit is not one for infringement by the
Defendants of the Plaintiffs trademark and the Plaintiff carries on business within the
jurisdiction of the court. If it were, then in terms of Section 134 (2) of the Trademarks Act
1999 (TM Act) this court would have jurisdiction to entertain the suit although the
defendants do not reside or carry on business within its jurisdiction. Section 134 (2) of the
TM Act (like and Section 62 (2) of the Copyright Act 1957) is therefore a long arm
provision in a limited sense, confined to infringement actions by Plaintiffs carrying on
business within the jurisdiction of the forum court. The present suit is an action for
passing off in which neither the Plaintiff nor any of the Defendants voluntarily resides or
carries on business within the local limits of Delhi. Consequently, neither Section 20 (a)
nor Section 20(b) CPC applies. The Plaintiff seeks to find the territorial jurisdiction of
this Court in terms of Section 20(c) CPC. In other words, according to the Plaintiff the
cause of action, wholly or in part, arises within the jurisdiction of this Court. This,
according to the Plaintiff is on account of two factors. One, that the website of the
Defendants is accessible in Delhi; it is not a passive website but used for soliciting
business in Delhi. Second, that there was at least one instance of the Defendants
brochure being sent to a Delhi resident for the purposes of sale of property.
Submissions of counsel
9. As regards the accessibility of the Defendants website in
Delhi, the learned counsel for the Plaintiff emphasized that (a) the nature of the website,
(b) the intention of the websites host to market its products in Delhi and (c) the effect of
such action by the Defendants in Delhi, are the three factors that have to be accounted for
in determining whether this court has territorial jurisdiction. As regards the nature of the
website, counsel for the Plaintiff submits that it could be passive, interactive or active.
The case of the Plaintiff is that a mere advertisement on the website, without any move by
the Defendants to block access to Delhi viewers through a device of purposeful
avoidance would be a case of passive plus. It is contended that all the viewers outside
Andhra Pradesh where the Defendants are located are, in the absence of such blocking of
access, targeted by the Defendants. According to the Plaintiff where the website is
passive, in the absence of any intention to market, which absence of intention is express,
180 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

the forum court would have no jurisdiction. If the intention to market its product is not
discernible on account of non-application of mind by the website owner, the forum court
might still have jurisdiction where there is an effect on the market in the forum state.
10. As regards an interactive website, it is submitted that for jurisdiction of the forum
court to get attracted, there should be an intention on the part of the website owner to
target potential customers in the forum state. This intention can be presumed unless the
website owner demonstrates purposeful avoidance by placing filters or blocking off the
website to viewers outside the state within whose territory he is located. Where the owner
has not applied his mind to target a specific city, region or state, but if some effect is
nevertheless felt in the forum state, the forum court would have jurisdiction. It is
submitted that when there is no intention to target a specific city or a customer and there
is no effect on the market, the forum court would have no jurisdiction. Learned counsel
for the Plaintiff has relied on a large number of judicial precedents, including those of
foreign courts, in support of his plea that this court has jurisdiction to entertain the suit.
These will be discussed presently. The questions that arise are examined with reference to
the development of the law in common law jurisdictions particularly the U.S.A., the U.K.,
Canada, Australia and India.
Question (i): Jurisdiction of a forum court in suits involving internet related disputes
The law in the U.S.A.
Purposeful availment as a test
11. Among the early decisions, is one of the U.S. Supreme Court in International Shoe
Co. v. Washington 326 U.S. 340 (1945) where a two-part test for determining jurisdiction
of the forum court over a defendant not residing or carrying on business within its
jurisdiction was evolved. It was held that in such instance the Plaintiff had to show that
the defendant has sufficient minimum contacts in the forum state. In other words, the
defendant must have purposefully directed its activities towards the forum state or
otherwise purposefully availed of the privilege of conducting activities in the forum
state. Further, the forum court had to be satisfied that exercising jurisdiction would
comport with the traditional notions of fair play and substantial justice. This law was
further developed in later cases.
12. In Burger King Corp v. Rudzewicz 471 U.S. 462 (1985) the Appellant Burger King
Corp. had its principal offices in Miami. It entered into a franchise agreement with the
defendant who opened a restaurant pursuant thereto in Michigan. The defendant defaulted
in making the monthly payments. The Plaintiff terminated the franchise agreement and
ordered the defendant to vacate the premises. When the defendant refused, the Plaintiff
sued him in Miami. Florida had a long arm statute that extended jurisdiction to any
person, whether or not a resident of that state, who committed a breach of a contract in
the state by failing to perform acts that the contract required to be performed there. The
District Court held that the defendant franchisee was subject to the personal jurisdiction
of the court in Miami. The Court of appeals reversed and the Plaintiff appealed to the
Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy 181

Supreme Court. Reversing the Court of Appeals and restoring the judgment of the District
Court, the Supreme Court held that the defendant did not have to be physically present
within the jurisdiction of the forum court and that the forum court may exercise
jurisdiction over a non-resident where an alleged injury arises out of or relates to actions
by the Defendant himself that are purposefully directed towards residents of the forum
State. It was held that purposeful availment would not result from random or
fortuitous contacts by the defendant in the forum state requires the plaintiff to show that
such contracts resulted from the actions by the defendant himself that created a
substantial connection with the forum State. He must have engaged in significant
activities within the forum state or have created continuing obligations between
himself and residents of the forum state. It was held on facts that the 20 year relationship
that the defendant had with the Plaintiff reinforced his deliberate affiliation with the
forum state and the reasonable foreseeability of litigation there.
13. In Asahi Metal Industries v. Superior Court 480 U.S. 102 (1987) a Japanese
company sold assemblies manufactured by it to a company in Taiwan which in turn
incorporated them into the finished tyres and sold them worldwide including the US
where 20 per cent of its sales took place in California. A product liability suit was brought
in the Superior Court in California against the Taiwanese company arising from a
motorcycle accident caused as a result of a defect in the tyre. The Taiwanese company in
turn filed a counter claim against the Japanese company. The order of the Superior Court
declining to quash the summons issued to the Japanese company was reversed by the
State Court of Appeal. However, the Supreme Court of California in an appeal by the
Taiwanese company reversed and restored the order of the Superior Court. The U.S.
Supreme Court reversed the State Supreme Court and held that exercise of personal
jurisdiction over the Japanese company would be unreasonable and unfair, in violation
of the Due Process Clause. Further it was held that the mere placement of a product
into the stream of commerce was not an act purposefully directed towards the forum
State and would not result in a substantial connection between the defendant and the
forum state necessary for a finding of minimum contacts.
14. As regards cases involving torts committed in relation to the internet, the early
decisions on the point handed down by the District courts in the U.S.A. appeared to
permit a forum state to exercise jurisdiction even where the website was a passive one. In
Inset Systems Inc. v. Instruction Set Inc. 937 F.Supp. 161 (D.Conn.1996), the
Defendant had displayed on its website used for advertising its goods and services, a toll-
free telephone number 1-800-US-INSET. The Plaintiff, a company in Connecticut
brought an infringement action against the Defendant in a court in Connecticut, which in
any event had a long arm statute. The District court held that the Defendant had
purposefully availed itself of doing business in Connecticut because it directed its
advertising activities via the Internet sites and toll-free number toward the State of
Connecticut (and all states); Internet sites and toll-free numbers are designed to
communicate with people and their businesses in every state; an Internet advertisement
182 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

could reach as many as 10,000 Internet users within Connecticut alone; and once posted
on the Internet, an advertisement is continuously available to any Internet user.
15. However, the approach in Bensusan Restaurant Corp. v. King, 937 F. Supp.295
(S.D.N.Y. 1996) was different although New York too had a long arm statute. The
Defendant there had a small jazz club known as The Blue Note in Columbia, Missouri
and created a general access web-page giving information about the said club as well as a
calendar of events and ticketing information. In order to buy tickets, web browsers had to
use the names and addresses of ticket outlets in Columbia. Bensusan (the Plaintiff therein)
was a New York corporation that owned The Blue Note, a popular jazz club in the heart
of Greenwich Village in New York. It owned the rights to the The Blue Note mark. It
accordingly sued the Defendant for trademark infringement in New York. It was noticed
that New York had a long arm statute. The New York court held that the Defendant had
not done anything to purposefully avail himself of the benefits of New York. Like
numerous others, the Defendant had simply created a web site and permitted anyone
who could find it to access it. Creating a site, like placing a product into the stream of
commerce, may be felt nationwide or even worldwide but, without more, it is not an
act purposefully directed towards the forum state. (emphasis supplied)
16. In Ballard v. Savage 65 F.3d 1495 (1995) it was explained that the expression
purposefully availed meant that the Defendant has taken deliberate action within the
forum state or if he has created continuing obligations to forum residents. It was further
explained that it was not required that a Defendant be physically present within, or have
physical contacts with, the forum, provided that his efforts are purposefully directed
toward forum residents. In CompuServe, Inc. v. Patterson, 89 F.3d 1257(6th Cir. 1996)
it was found that the Defendant had chosen to transmit its products from Texas to
CompuServes system, and that system provided access to his software to others to whom
he advertised and sold his product. It was held that Patterson had purposefully availed
himself of the privilege of doing business. In Maritz, Inc. v. CyberGold, Inc., 947
F.Supp. 1328 (E.D.Mo.) (1996) where browsers who came on to its website were
encouraged by the Defendant CyberGold to add their address to a mailing list that
basically subscribed the user to the service, it was held that the Defendant had obtained
the website for the purpose of and in anticipation that, internet users, searching the
internet for websites, will access CyberGolds website and eventually sign up on
CyberGolds mailing list. Therefore, although CyberGold claimed that its website was a
passive one, it was held that through its website, CyberGold has consciously decided to
transmit advertising information to all internet users, knowing that such information will
be transmitted globally.
17. In Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 890 (6th Cir. 2002) the
Court of Appeals held that the purposeful availment requirement is satisfied "if the web
site is interactive to a degree that reveals specifically intended interaction with residents
of the state". In that case, the Plaintiff (Neogen), a Michigan Corporation, was in the
business of developing and marketing a range of health care, food, and animal-related
Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy 183

products and services, including certain diagnostic test kits. It filed a suit in the Michigan
District Courts alleging, inter alia, trademark infringement against the Defendant (Neo
Gen Screening), a Pennsylvania Corporation performing diagnostic testing of blood
samples from newborn infants. The District Court dismissed the suit for lack of personal
jurisdiction. The Court of Appeals held that the maintenance of the Defendants website,
in and of itself, does not constitute purposeful availment of the privilege of acting in
Michigan. It observed that the level of contact with a state that occurs simply from the
fact of a websites availability on the Internet is therefore an attenuated contact that falls
short of purposeful availment. However, the Court in that case did not decide the
question that whether the Defendants website alone would be sufficient to sustain
personal jurisdiction in the forum State as it held that the website must be considered
alongside NGS's [Neo Gen Screenings] other interactions with Michigan residents. Most
significantly, when potential customers from Michigan have contacted NGS to purchase
its services, NGS has welcomed their individual business on a regular basis. The Court
further observed that although customers from Michigan contacted NGS, and not the
other way around, NGS could not mail test results to and accept payment from customers
with Michigan addresses without intentionally choosing to conduct business in
Michigan. It was in this context that the Court of Appeals reversed the finding of the
District Court and remanded the matter.
The Zippo sliding scale test
18. The sliding scale test for determining the level of interactivity of the website, for
the purposes of ascertaining jurisdiction of the forum state, was laid down in Zippo Mfg.
Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997). The Plaintiff Zippo
Manufacturing was a Pennsylvania corporation making cigarette lighters. The Defendant
was a California corporation operating an internet website and an internet news service. It
had its offices only in California. Viewers who were resident of other states had to go on
the website to subscribe for the Defendants news service by filling out an on-line
application. Payment was made by credit card over the internet or telephone. Around
3,000 of the Defendants subscribers were residents of Pennsylvania who had contracted
to receive the Defendants service by visiting its website and filling out the on-line
application. Additionally the Defendant entered into agreements with seven internet
access providers in Pennsylvania to permit their subscribers to access the Defendants
news service. The Defendant was sued in a Pennsylvania court for trademark dilution,
infringement and false designation. After discussing the development of the law till then,
the District Court first observed:
The Constitutional limitations on the exercise of personal jurisdiction differ depending
upon whether a court seeks to exercise general or specific jurisdiction over a non-resident
defendant. Mellon, 960 F.2d at 1221. General jurisdiction permits a court to exercise
personal jurisdiction over a non-resident defendant for non-forum related activities when
the defendant has engage3d in systematic and continuous activities in the forum state
Helicopteos Nacionales de Colombia, S.A. v. Hall, 466 US 408. In the absence of general
184 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

jurisdiction, specific jurisdiction permits a court to exercise personal jurisdiction

over a non-resident defendant for forum-related activities where the relationship
between the defendant and the forum falls within the minimum contacts
framework of International Shoe Co. v. Washington, 326 US 310 and its progeny
Mellon, 960 F.2d at 1221 (emphasis supplied)
19. The Zippo court then noted that a three pronged test has emerged for determining
whether the exercise of specific personal jurisdiction over a non-resident defendant is
appropriate: (1) the defendant must have sufficient minimum contacts with the forum
state, (2) the claim asserted against the defendant must arise out of those contacts, and (3)
the exercise of jurisdiction must be reasonable. The court in Zippo classified websites as
(i) passive, (ii) interactive and (iii) integral to the defendants business. On facts it was
found that the Defendants website was an interactive one. Accordingly it was held that
the court had jurisdiction to try the suit. The Zippo courts observation that the
likelihood that personal jurisdiction can be constitutionally exercised is directly
proportionate to the nature and quality of commercial activity that an entity conducts over
the internet has been compared by that court to a sliding scale.
20. In Cybersell, Inc. v. Cybersell. Inc. 130 F.3d 414 (1997), the facts were that an
Arizona Corporation that advertised for commercial services over the internet under
service mark Cybersell, brought an infringement action against Florida Corporation
which offered web-page construction services over the Internet. As part of its marketing
effort, the forum Cybersell Inc in Florida created a web-page at
http://www.cybsell.com/cybsell/index.htm. The same page had a logo at the top with
CyberSell over a depiction of the planet earth, with the caption underneath
Professional Services for the World Wide Web with a local phone number and
hypertext link allowing the browser to introduce herself. That link invited a company not
on the web but interested in getting on the web-to Email us to find out how!. A
hypertext link allowed a user to move directly from one web location to another by using
the mouse to click twice on the colored link. Arizona had a long arm statute that
permitted a court to exercise personal jurisdiction over parties whether found within or
outside the state to the maximum extent permitted by the court in United States. A
reference was made to the decision of the Arizona Supreme Court in Uberti v. Leonardo,
181 Ariz. 565 in which it was held that Arizona will exert personal jurisdiction over a
non resident litigant to the maximum extent allowed by the federal constitution. The
Arizona Court of Appeals adopted a three part test to determine whether the district court
could exercise specific jurisdiction over the non-resident Defendant: (1) the non-resident
defendant must do some act or consummate some transaction with the forum or perform
some act by which he purposefully avails himself of the privilege of conducting activities
in the forum, thereby invoking the benefits and protections; (2) the claim must be one
which arises out of the results from the defendants forum-related activities; and (3)
exercise of jurisdiction must be reasonable. It was held by the Court of Appeals that all
that Cybersell FL (the Florida Corporation) did was post an essentially passive home
Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy 185

page on the web, using the name CyberSell, which Cybersell AZ (the Arizona
Corporation) was in the process of registering as a federal service mark. While there is no
question that anyone, anywhere could access that home page and thereby learn about the
services offered, we cannot see how from that fact alone it can be inferred that Cybersell
FL deliberately directed its merchandising efforts toward Arizona residents. It was
further noticed that the interactivity of its web page is limited to receiving the
browsers name and address and an indication of interest-signing up for the service
is not an option, nor did anyone from Arizona do so. No money changed hands on
the Internet from (or through) Arizona. It was held that Cybersell FLs contacts are
insufficient to establish purposeful availment.
21. There have been difficulties experienced in the application of the Zippo sliding scale
test in terms of which the assertion of a courts jurisdiction depended upon the level of
interactivity and commercial nature of the exchange of information as a result of the use
of the website. The courts have been finding it problematic in determining the degree of
interactivity that should suffice for jurisdiction to be attracted. Mere ability to exchange
files with users through the internet has been held not to be sufficiently interactive for
the forum court to assume jurisdiction (Desktop Technologies v. Colourworks
Reproduction & Designs Inc 1999 WL 98572 (E.D.Pa. 1999). In People Solutions v.
People Solutions 2000 WL 1030619 (N.D.Tex., 2000), although it was possible for
customers visiting the Defendants website to download information, obtain product
brochures and order products on-line, the court refused to assert jurisdiction since the
Plaintiff failed to show that Defendant had sold its products or contracted for services
with any person in the forum state through the website. Again in Mink v. AAAA
Development 190 F.3d 333 (5th Cir. 1999) although the Defendants website
offered printable mail-in order forms that could be downloaded, provided a toll-free
number, a mailing and an e-mail address, the forum court declined to exercise jurisdiction
since in fact no orders were placed using the website. The levels of interactivity now
demanded are of a much higher order. In Winfield Collection v. McCauley 105
F.Supp.2d 746 (E.D.Mich,2000) the website provided an interactive mechanism of
doing on-line business and the Plaintiff showed that auction sales were conducted over
the net with bidders in Michigan. Nevertheless jurisdiction was declined because the
Defendant was not shown as having actively and intentionally doing business with
customers in Michigan. It was held that the form of on-line sale made it impossible for
the Defendants website to target the users of any particular state and therefore other than
the court of the state where the principal place of the business of the Defendant was
located, other state courts could not exercise jurisdiction. Since over the years, most
websites are interactive to some degree, there has been a shift from examining whether
the website is per se passive or active to examining the nature of the activity performed
using the interactive website.
The Effects test
186 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

22. The difficulty experienced with the application of the Zippo sliding scale test, has
paved way for the application of the effects test. The courts have thus moved from a
subjective territoriality test (that a court will regulate an activity only if it is shown
having originated in its territory exemplified by the decision in Louis Feraud Intl
SARL v. Viewfinder Inc 406 F Supp 2d 274 (SDNY 2005)] to an objective
territoriality or effects test in which the forum court will exercise jurisdiction if it is
shown that effects of the Defendants website are felt in the forum state. In other words it
must have resulted in some harm or injury to the Plaintiff within the territory of the forum
state. Since some effect of a website is bound to be felt in several jurisdictions given the
nature of the internet, courts have adopted a tighter version of the effects test, which
is intentional targeting. Thomas Schultz in his illuminative piece Carving up the
Internet: Jurisdiction, Legal Orders, and the Private/Public International Law
Interface EJIL 2008 19 (779) points out that the dynamics of jurisdiction is
reasonableness and fairness. Schultz concludes that both the subjective territoriality and
objective territoriality or the effects test, if construed too broadly, are bound to be
unfair and unreasonable. According to Schultz, a middle path had to be chosen between
the too narrow (subjective territoriality) and too broad (effects) jurisdictional bases
for better managing trans-border externalities. This middle path was targeting. Schultz
defines targeting to mean in essence that the activity must be intended to have effects
within the territory of the state asserting jurisdiction. According to another scholar,
Professor Michael Geist (Is There a There There? Towards Greater Certainty for Internet
Jurisdiction 16 Berkeley Tech LJ (2001) 1345 at 1357) the principle of targeting is to
identify the intentions of the parties and to assess the steps taken to either enter or avoid
a particular jurisdiction. Targeting is described as something more than effects, but less
than physical presence. We now examine the decisions in which the above tests were
evolved.
23. The effects test was first evolved in Calder v. Jones, 465 U.S. 783 (1984). The
Plaintiff there was a resident of California who commenced a libel action in a California
court against the National Enquirer based on an article that it printed and circulated
in California. Apart from the Enquirer and its local distribution company, its editor and
the author of the article were all in Florida. Affirming the assertion by the California court
of personal jurisdiction over the defendants, the Supreme Court held:
The allegedly libelous story concerned the California activities of a California resident.
It impugned the professionalism of an entertainer whose television career was centered in
California. The article was drawn from California sources, and the brunt of the harm, in
terms both of respondent's emotional distress and the injury to her professional reputation,
was suffered in California. In sum, California is the focal point both of the story and of
the harm suffered. Jurisdiction over petitioners is therefore proper in California
based on the "effects" of their Florida conduct in California.
On facts it was held that the author and editor expressly aimed their tortuous actions at
California and that they knew that the article would have a devastating impact on the
Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy 187

respondent and that they should have reasonably anticipated that the brunt of that injury
would be reasonably felt by the defendant in the State in which she lived and worked.
24. The effects test propounded in Calder has been applied with mixed results. One of
the most discussed decisions of a French court where the effects doctrine was applied is
the Yahoo! Case (UJEF et LICRA v. Yahoo! Inc. et Yahoo France, Tribunal de Grande
Instance de Paris, No RG:00/0538, May 22, 2000 and November 22, 2000). A French
Jew while surfing on the net came across Nazi memorabilia being offered for sale on a
web page hosted by Yahoo!. Offering Nazi memorabilia for sale was an offence under the
French Penal law. Although the website of Yahoo! France did not host a similar web
page, it could be viewed on Yahoo! Website hosted from the U.S. by anyone in France.
LICRA, an organization fighting racism and anti-Semitism, and the Union of Jewish
students in France (UJEF) sued Yahoo! And Yahoo! France in the court in France. The
French court ordered the US Internet portal to block access to its US website from France,
in order to prevent internet users in France from accessing the objectionable items offered
for auction sale on that site. It found that this was technologically feasible through a series
of devices for which it examined experts. It thus rejected Yahoo!s argument that the
French courts order was not capable of being implemented beyond the borders of
France. The French court essentially applied the effects test to assert jurisdiction. It
held that by permitting visualization in France of nazi objects and eventual participation
of a surfer established in France in the exposition/sale of such objects Yahoo! had
committed a wrong within the territory of France. Although the website was capable of
being viewed from anywhere in the world, the French court concluded that it had caused
harm to the two claimants located in France. The mere downloadability of the
objectionable information/material did not alone determine the question of jurisdiction.
The French court also considered the effect it would have on the public at large in France
who could access Yahoo!s website and who were targeted. This the Court concluded
from the fact that Yahoo! Inc. U.S.A displayed advertisements in French to visitors at the
US based server and Yahoo! France provided a link to the U.S. based Yahoo! Server that
Yahoo! Inc. did intend its services to reach persons in France and intended to profit for
the visitors from France to its U.S. based website. (There was a second phase of this
litigation in the courts in California where Yahoo! sued LICRA and UJEF on the ground
that the order of the French court was unenforceable in the U.S.A. However, that is not
being discussed as not being relevant to the questions that arise for consideration in the
instant case).
25. While courts have more readily applied the effects test in defamation cases [see
Remick v. Manfredy, 238 F.3d 248 (2001); Noonan v. Winston Comp., 135 F.3d 85, 91
(1998)]; Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002) there have been problems in its
application to trademark infringement cases. For instance, the Court of Appeals in
Cybersell held that the effects test did not apply with the same force to Cybersell AZ as
it would to an individual, because a corporation does not suffer harm in a particular
geographic location in the same sense that an individual does. Cybersell FLs web page
188 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

simply was not aimed intentionally at Arizona knowing that harm was likely to be caused
there to Cybersell AZ. In Digital Equipment Corp. v. Alta Vista Technology 969
F.Supp 456 (Mass., 1997) the Plaintiff, a Massachusetts company sued the Defendant
which was its licensee alleging infringement of its mark. Although the Defendant argued
that it had structured its affairs to avoid the forum state, the court found that the
Defendants use of its website to infringe the Plaintiffs mark did have effects in the
forum state and its purpose may be said to targeting the forum state and its citizens. In
Nissan Motor Co. v. Nissan Computer Corp.89 F. Supp. 2d 1154 (C.D. Cal.,2000)
although the Defendant did not sell goods to its consumers on its websites (which were
registered under the domain names nissan.com and nissan.net) it had intentionally
changed the content of its web site to exploit the goodwill of the Plaintiff (a leading car
manufacturer) by profiting from confusion among the consumers. It was therefore held to
have deliberately and substantially directed its activity toward the forum state.
26. The courts in the U.S.A. have adopted a combination of the Zippo sliding scale test
and the Calder effects test in examining whether the forum court has jurisdiction in a
case involving infringement by use of the internet. Recently in Toys R US, v. Step
Two, 318 F.3d 446 (2003), the US Court of Appeals revisited the issue. In that case, the
Plaintiff, Toys "R" Us (Toys), a Delaware corporation with its headquarters in New
Jersey, owned retail stores worldwide where it sold toys, games, and numerous other
products. In August 1999, Toys acquired Imaginarium Toy Centers, Inc., which owned
and operated a network of "Imaginarium" stores for the sale of educational toys and
games. In this process, Toys also acquired several Imaginarium trademarks. The
Defendant, Step Two, a Spanish corporation owned or franchised toy stores operating
under the name "Imaginarium" in Spain and nine other countries. It had registered the
Imaginarium mark in several countries where its stores were located. At the time of trial,
there were 165 Step Two Imaginarium stores having the same unique facade and logo as
those owned by Toys, and selling the same types of merchandise as Toys sold in its
Imaginarium stores. However, Step Two did not operate any stores, maintain any offices
or bank accounts, or had any employees anywhere in the United States. In 1995,
Imaginarium Toy Centers, Inc. (which Toys later acquired) registered the domain name
<imaginarium.com> and launched a web site featuring merchandise sold at Imaginarium
stores. In 1996, Step Two registered the domain name <imaginarium.es>, and began
advertising merchandise that was available at its Imaginarium stores. In April 1999,
Imaginarium Toy Centers registered the domain name <imaginarium.net>, and launched
another web site where it offered Imaginarium merchandise for sale. In June 1999, Step
Two registered two additional "Imaginarium" domain names, <imaginariumworld.com>
and <imaginarium-world.com>. In May 2000, Step Two registered three more domain
names: <imaginariumnet.com>, <imaginariumnet.<page>net>, and
<imaginariumnet.org>. Toys brought action against Step Two alleging that Step Two
used its Internet web sites to engage in trademark infringement, unfair competition,
misuse of the trademark notice symbol, and unlawful "cybersquatting". The District Court
of New Jersey denied Toys' request for jurisdictional discovery and, simultaneously,
Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy 189

granted Step Two's motion to dismiss for lack of personal jurisdiction. However, the
Court of Appeals held that the record did not support the finding that the Defendant Step
Two knowingly conducted business with residents of New Jersey. It reversed and
remanded the case for limited jurisdictional discovery relating to Step Two's business
activities in the United States. The Court emphasized that the mere operation of a
commercially interactive website should not subject the operator to jurisdiction anywhere
in the world. Rather, there must be evidence that the Defendant purposefully
availed itself of conducting activity in the forum state, by directly targeting its
website to the state, knowingly interacting with residents of the forum state via its
website, or through sufficient other related contacts.
27. Thomas Schultz (supra) points out that since the concept of targeting does not have
an inherently precise meaning, what it means to target seems to be very much up for
grabs. He suggests that positive actions by a Defendant to direct activities towards
specific states may also constitute the threshold of what amounts to targeting. It could be
the language or a currency used on the website, the language in which the terms and
conditions of use are drafted. Schultz also challenges the notions that the internet is
inherently incapable of being regulated or that it is global or borderless as is largely
believed. He points out that while there has been a horizontal fragmentation of the
internet by constitution of legal systems which are transnational and largely autonomous
of state control (he cites the example of e Bays dispute resolution mechanism) there is
also vertical fragmentation of the internet by states exercising greater controls over web
based information flows within (and into) their territory based on local values and
preferences. The latter has been triggered by a variety of factors including libel
originating in distant countries, online casinos, domain name cyber squatting, hate speech
websites and so on. He predicts that this inevitably leads to carving up of the internet
for the purposes of regulation and control.
28. To summarise the position in the US, in order to establish the jurisdiction of the forum
court, even when a long arm statute exists, the Plaintiff would have to show that the
Defendant purposefully availed of jurisdiction of the forum state by specifically
targeting customers within the forum state. A mere hosting of an interactive web-page
without any commercial activity being shown as having been conducted within the forum
state, would not enable the forum court to assume jurisdiction. Even if one were to apply
the effects test, it would have to be shown that the Defendant specifically directed its
activities towards the forum state and intended to produce the injurious effects on the
Plaintiff within the forum state. We now take a brief look at the decisions in other
common law jurisdictions.
Canada
29. In Morguard Investments Ltd. V. De Savoye, [1990] 3 SCR 1077 the Canadian
Supreme Court emphasized the real and substantial connection as a test for
determining jurisdiction. It was observed as follows:
190 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

It seems to me that the approach of permitting suit where there is a real and substantial
connection with the action provides a reasonable balance between the rights of the
parties.
30. In Pro-C Ltd. v. Computer City Inc. (2000) OJ No. 2823 (Ont.Sup.Ct.), 7 CPR (4th)
193 it was held that the listing of Canadian retail outlets on the Defendants website
coupled with there being a de facto common market between Canada and the U.S.
meant that Candian consumers were being targeted and therefore the Ontario court in
Canada would have jurisdiction to try the trademark infringement action against the
Defendant located in the U.S.A.
31. In Patrick Desjean v. Intermix Media Inc. 2006 FC 1395, the Defendant, a Delaware
Corporation with its principal office in Los Angeles, used to offer ostensible free software
programs. When the Plaintiff, a resident of Canada, installed a free Intermix Screensaver
or game from www.mycoolscreen.com, he also unwittingly installed one or more
spyware programs. Thereafter the Plaintiff brought an action against the Defendant in
Canada for violating the misleading representations provisions of the Competition Act,
1985 (of Canada). The Federal Court of Ottawa, after referring to the decision of the
Ontario Court of Appeal in Muscutt v. Courcelles (2002) 213 DLR (4th) 577, took the
following eight factors into account while determining whether it had jurisdiction: (1) The
connection between the forum and the Plaintiffs claim; (2) The connection between the
forum and the Defendant; (3) Unfairness to the Defendant in assuming jurisdiction; (4)
Unfairness to the Plaintiff in not assuming jurisdiction; (5) Involvement of other parties to
the suit; (6) The Courts willingness to recognize and enforce an extra-provincial
judgment rendered on the same jurisdictional basis; (7) Whether the case is
interprovincial or international in nature; (8) Comity and standards of jurisdiction,
recognition and enforcement prevailing elsewhere. The Court observed that the
Defendant had no office in Canada although in the past it subsidized office space for
contractors working on two websites purchased by Intermix. Intermix had no server in
Canada and www.mycoolscreen.com also was not hosted on servers located in Canada
but on a server in California. It was also observed that 66% of downloads from either the
Defendants websites or third parties distributing the Defendants applications were made
by American users and the remaining were made throughout the world. Canada accounted
for only 2.5% to 5.3% of downloads. On the basis of these facts, the Federal Court held
that the Canadian courts had no jurisdiction over the Defendant since there was no
substantial connection between the Defendant and the forum.
United Kingdom
32. In 1-800 Flowers Inc v. Phonenames [2002] FSR 12 CA, the Defendant was a UK
based phonebook company and the Plaintiff was engaged in the business of delivery of
flowers. Customers across the world could access the Plaintiffs website to place orders
for flowers. There was, however, no evidence to show that UK residents had placed
orders on its website. It was argued that because the website was accessible from the UK
and the UK residents could place orders online, the use by the Defendant of the mark 1-
Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy 191

800 on its website amounted to use in the UK. It was held in the first appeal by the
Bench that mere fact that websites could be accessed anywhere in the world did not
mean, for trade mark purposes, that the law should regard them as being used everywhere
in the world. The intention of the website owner and what the reader will understand if
he accesses the website was held to be relevant. The Court of Appeals also rejected the
argument. Justice Buxton, in a concurring opinion pointed out as under:
I would wish to approach these arguments, and particularly the last of them, with
caution. There is something inherently unrealistic in saying that A uses his mark in the
United Kingdom when all that he does is to place the mark on the internet, from a
location outside the United Kingdom, and simply wait in the hope that someone from the
United Kingdom will download it and thereby create use on the part of A. By contrast, I
can see that it might be more easily arguable that if A places on the internet a mark that is
confusingly similar to a mark protected in another jurisdiction, he may do so at his peril
that someone from that other jurisdiction may download it; though that approach conjured
up in argument before us the potentially disturbing prospect that a shop in Arizona or
Brazil that happens to bear the same name as a trademarked store in England or Australia
will have to act with caution in answering telephone calls from those latter jurisdictions.
However that may be, the very idea of use within a certain area would seem to require
some active step in that area on the part of the user that goes beyond providing facilities
that enable others to bring the mark into the area. Of course, if persons in the United
Kingdom seek the mark on the internet in response to direct encouragement or
advertisement by the owner of the mark, the position may be different; but in such a case
the advertisement or encouragement in itself is likely to suffice to establish the necessary
use.
Australia
33. As far as Australian High Court is concerned, its judgment in Dow Jones &
Company Inc. v. Gutnick, (2002) HCA 56 (10 December 2002) is instructive of the
application of the effects test. Dow Jones & Company Inc, a corporation registered in
the US had published material on the Internet that was allegedly defamatory of Mr.
Gutnick who sued in the Supreme Court of Victoria to recover damages to vindicate his
reputation. The Victorian law was treated as a long arm rule which provided for
jurisdiction based upon the mere happening of damage within a jurisdiction. The High
Court held that the primary judge was correct in deciding the issue of jurisdiction in
favour of the Plaintiff. Since the long arm was found to be valid and applicable, the
arguments that the Defendant had minimal commercial interest in the sale of its magazine
in Victoria and that it had published them principally for the benefit of US readers was
considered irrelevant. However, what is important to note is that the state of Victoria in
the said case did have a long arm law which was held to be valid and which permitted
extension of jurisdiction.
192 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

India
34. Finally, the decisions of our court. At one end of the spectrum we have decision of the
learned single Judge of this Court in Casio India Co. Limited v. Ashita Tele Systems Pvt.
Limited 2003 (27) PTC 265 (Del). That was a passing-off action where the Defendant
was carrying on business from Bombay. The Defendant had managed to get a registration
of domain name www.casioindia.com and Defendant no. 2 was the Registrar with whom
the domain name had been registered. The Plaintiff, on the other hand, claimed to be a
100% subsidiary of Casio Computer Ltd., Japan (Casio Japan) which was the registered
owner of the trade mark Casio in India used for a large number of electronic and other
products. He had also obtained the registration of large number of domain names in India
like CasioIndia Company.com, CasioIndia.org, CasioIndia.net as well as Casio India.info,
CasioIndia.Biz and CasioIndia Co. Defendant no. 1 had managed to get the registration of
the aforementioned domain names during the time when it held a distributorship
agreement with the Plaintiff. It was held by the learned single Judge after referring to the
decisions in Rediff Communication Ltd. V. Cyber Booth, AIR 2000 Bombay 27 and the
High Court of Australia in Dow
Jones & Co. Inc. v. Gutnick (supra) that once access to the impugned domain name
website could be had from anywhere else, the residence of the Defendant. According to
the learned single Judge since a mere likelihood of deception, whereby an average person
is likely to be deceived or confused was sufficient to entertain an action for passing off, it
was not at all required to be proved that any actual deception took place at Delhi.
Accordingly, the fact that the website of Defendant no. 1 can be accessed from Delhi is
sufficient to invoke the territorial jurisdiction of this Court
35. A different approach was adopted in a later judgment by another learned single Judge
of this Court in (India TV) Independent News Service Pvt. Limited v. India Broadcast
Live Llc And Ors., 2007 (35) PTC 177 (Del.). The facts in brief of that case were that the
Plaintiff company ran a Hindi news channel INDIA TV which was launched in March
2004. The Plaintiff claimed to have adopted the mark INDIA TV since 01.12.2002. The
Plaintiff had applied for the registration of the said mark and the said applications were
published in the trademarks journal. The Plaintiff was also the owner of the domain name
INDIA TV which domain name was registered on 18.11.2003. The channel was made
available for live viewing on the said website. Defendant nos. 1 and 2 hosted a website
indiatvlive.com which the Plaintiff came across in January 2007 while carrying out
an internet search. The website contained the words INDIA TV which were displayed
prominently inside the sketch of a television. A passing off action was initiated to injunct
the Defendant no. 2 from using the domain name www.indiatvlive.com. While the suit
was pending, Defendant no. 1 was proceeding with the action instituted by it in the
Arizona District Court in US, where the Defendants were located, against the Plaintiff in
respect of reverse domain name hijacking seeking a declaration of non-infringement of
the Plaintiffs mark by Defendant no. 1. The Plaintiff then applied to this Court stating
that the Defendant had suppressed the fact of having filed the aforesaid action in Arizona
Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy 193

and prayed for an injunction against Defendant from proceeding with the said action in
the Arizona courts particularly since the suit of this court was prior action. In resisting the
said application, the Defendant no. 1 took stand that this court was not a court of
competent jurisdiction not being the appropriate forum/forum conveniens. Inasmuch as
Defendants did not reside or work for gain in India, it was only the District Court Arizona
that was the appropriate forum/forum conveniens to decide the dispute.
36. It was argued before the court that in order to attain personal jurisdiction i.e. the
jurisdiction over the person of a Defendant in contrast to the jurisdiction of a court over a
Defendants property or his interest therein, there should be a long-arm statute on the
basis of which the court could exercise jurisdiction over any individual located
outside the state. As regards the Internet, it was argued that it was not enough to establish
that there was a passive website. The court referred to the purposeful availment test and
the three factors highlighted in Cybersell. The learned single Judge then noticed that India
did not have a long arm statute which dealt with the jurisdiction as regards non-resident
Defendants. Therefore it had to be examined whether the Defendants activities
have a sufficient connection with the forum state (India); whether the cause of action
arises out of the Defendants activities within the forum and whether the exercise of
jurisdiction would be reasonable. In paras 46 and 47, it was observed as under:
46. I am in agreement with the proposition that the mere fact that a website is accessible
in a particular place may not itself be sufficient for the courts of that place to exercise
personal jurisdiction over the owners of the website. However, where the website is not
merely 'passive' but is interactive permitting the browsers to not only access the contents
thereof but also subscribe to the services provided by the owners/operators, the position
would be different. However, as noticed in the judgment in CyberSell Inc. case (supra),
even where a website is interactive, the level of interactivity would be relevant and
limited interactivity may also not be sufficient for a court to exercise jurisdiction. In
Panavision International LP case (supra), it was found that the registration of the
Plaintiff's mark as a domain name by the Defendant had the effect of injuring the Plaintiff
in California and therefore the court had jurisdiction. In Compuserve case (supra) again it
was found that the Defendant had contacted Ohio to sell his computer software's in the
Plaintiffs Ohio based systems and sent his goods to Ohio further for their ultimate sale
and thus those courts had jurisdiction.
47.In the present case, the website indiatvlive.com of Defendant No. 1 is not wholly
of a 'passive' character. It has a specific section for subscription to its services and the
options (provided on the website itself) for the countries whose residents can subscribe to
the services include India. The services provided by Defendant No. 1 can thus be
subscribed to and availed of in Delhi (India) i.e. within the jurisdiction of this court.
37. After referring to the articles posted on the net the learned Single Judge concluded in
India TV that the Defendant No. 1 intended to target expatriate Indians as well as
Indians within the country. Further the stand taken by Defendant No. 1 in its
written statement was that it had a global presence including in India. It claimed to be the
194 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

first IPTV delivery system of Indian content from India. The website of Defendant No. 1
was launched in India as well as in Los Angeles. It was accordingly held that Defendant
No. 1 company has sufficient connection with India. As regards the effects test, it was
held that since the Plaintiff channel was an Indian news channel intended for Indian
audiences, any damage alleged to have been caused or alleged to be likely to arise to the
goodwill, reputation etc of the Plaintiff would be in India. However, the alleged damage
that may have arisen or may be likely to arise to the Plaintiff would be as a consequence
of the fact that the impugned website is accessible in India and the services provided can
be availed of in India. Consequently, it was held that the Defendant is carrying on
activities within the jurisdiction of this court; has a sufficient contacts with the
jurisdiction of the court and the claim of the Plaintiff has arisen as a consequence of the
activities of Defendant no. 1 within the jurisdiction of this court.
38. Having surveyed the law as it has developed in different jurisdictions, this Court is of
the view that the essential principles developed as part of the common law can be adopted
without difficulty by our courts in determining whether the forum court has jurisdiction
where the alleged breach is related to an activity on the internet. At the outset, this court
does not subscribe to the view that the mere accessibility of the Defendants website in
Delhi would enable this Court to exercise jurisdiction. A passive website, with no
intention to specifically target audiences outside the State where the host of the website is
located, cannot vest the forum court with jurisdiction. This court is therefore unable to
agree with the proposition laid down in Casio. The said decision cannot be held to be
good law and to that extent is overruled.
39. India TV appears to be somewhat closer to the development of law in this regard
since the decision in Casio. In India TV, the learned single Judge impliedly doubted the
correctness of the decision in Casio. The learned single Judge in India TV acknowledged
that a mere accessibility of website may not be sufficient to attract jurisdiction of the
forum court. This, in the considered view of this Court, is the correct position in law.
40. There was no occasion for this court even in India TV to examine the finer aspects of
the question of jurisdiction based on the nature of the website, the intention of the host of
the website to specifically target viewers outside its jurisdiction, and the effect of hosting
such website on audiences outside such state. It appears to this court that for the purposes
of a passing off action or an action for infringement where the Plaintiff is not carrying on
business within the jurisdiction of the forum court, and where there is no long arm statute,
the Plaintiff would have to show that the Defendant purposefully availed itself of the
jurisdiction of the forum court. It is not enough merely to show that the website hosted by
the Defendant is an interactive one. It would have to be shown that the nature of the
activity indulged in by the Defendant by the use of the website was with an intention to
conclude a commercial transaction with the website user.
41. This court is not able to accept the submission of the learned counsel for the Plaintiff
that the test of purposeful availment must be replaced by the test of purposeful
avoidance. While the Defendant may in his defence show how he avoided the forum
Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy 195

state, the initial burden is on the Plaintiff to show that the Defendant purposefully
availed itself of the jurisdiction of the forum court. The issue of incorporating filters to
block access to the website by viewers located outside the forum state will have to be
considered while deciding if the Defendant had purposefully avoided the forum state.
However, that question will arise only if the Plaintiff has been able to show that the
website of the Defendant is interactive and permits commercial transactions to be
concluded by the Defendant with a user of the website.
42. This Court holds that jurisdiction of the forum court does not get attracted merely on
the basis of interactivity of the website which is accessible in the forum state. The degree
of the interactivity apart, the nature of the activity permissible and whether it results in a
commercial transaction has to be examined. For the effects test to apply, the Plaintiff
must necessarily plead and show prima facie that the specific targeting of the forum state
by the Defendant resulted in an injury or harm to the Plaintiff within the forum state. For
the purposes of a passing off or an infringement action (where the plaintiff is not located
within the jurisdiction of the court), the injurious effect on the Plaintiffs business,
goodwill or reputation within the forum state as a result of the Defendants website being
accessed in the forum state would have to be shown. Naturally therefore, this would
require the presence of the Plaintiff in the forum state and not merely the possibility of
such presence in the future. Secondly, to show that an injurious effect has been felt by the
Plaintiff it would have to be shown that viewers in the forum state were specifically
targeted. Therefore the effects test would have to be applied in conjunction with the
sliding scale test to determine if the forum court has jurisdiction to try a suit concerning
internet based disputes.
43. The question no. (i) is accordingly answered.
Question (ii): In a passing off or infringement action, where the defendant is sought to
be sued on the basis that its website is accessible in the forum state, what is the extent
of the burden on the Plaintiff to prima facie establish that the forum court has
jurisdiction to entertain the suit?
44. This brings us to the question as to the extent of burden of proof on the Plaintiff to
prima facie show that the Defendant has purposefully availed of the jurisdiction of this
court. In the present case, it is argued that by enabling customers to go on the website and
get a copy of its brochure and make enquiries, the Defendant must be held to have
purposefully availed of the jurisdiction of this court. The question that arises is for the
purposes of Section 20 (c) CPC, in such circumstances, is what is the extent of the burden
on the Plaintiff to show prima facie that a part of the cause of action arose within the
jurisdiction of the forum court.
45. This court holds that in order to prima facie establish that the Defendant purposefully
availed of the jurisdiction of this court, the Plaintiff would have to show that the
Defendant engaged in some commercial activity in the forum State by targeting its
website specifically at customers within that State. This is consistent with the law laid
196 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

down in Cybersell and reiterated later in Toys R Us. It is also consistent with the
application of the tighter version of the effects test which is targeting. In any action
for passing off or infringement, it would have to be shown that the Defendant by using its
mark intended to pass off its goods as that of the Plaintiffs. A mere hosting of a website
which can be accessible from anyone from within the jurisdiction of the court is not
sufficient for this purpose. Also a mere posting of an advertisement by the Defendant
depicting its mark on a passive website which does not enable the Defendant to enter into
any commercial transaction with the viewer in the forum state cannot satisfy the
requirement of giving rise to a cause of action in the forum state. Even an interactive
website, which is not shown to be specifically targeted at viewers in the forum state for
commercial transactions, will not result in the court of the forum state having jurisdiction.
In sum, for the purposes of Section 20 (c) CPC, in order to show that some part of the
cause of action has arisen in the forum state by the use of the internet by the Defendant,
the Plaintiff will have to show prima facie that the said website, whether euphemistically
termed as passive plus or interactive, was specifically targeted at viewers in the
forum state for commercial transactions. The Plaintiff would have to plead this and
produce material to prima facie show that some commercial transaction using the website
was entered into by the Defendant with a user of its website within the forum state and
that the specific targeting of the forum state by the Defendant resulted in an injury or
harm to the Plaintiff within the forum state. Question no. (ii) is answered accordingly.
Question (iii) Is it permissible for the Plaintiff to establish such prima facie case
through trap orders or trap transactions?
46. It may be recalled that the Plaintiff has to show that a part of the cause of action in a
suit for passing off or infringement has arisen within the jurisdiction of the forum court.
Relevant to this, it would have to be shown by the Plaintiff that the Defendant availed
of the jurisdiction of the forum court by commercially transacting with a viewer located
in the forum state through the internet. The question is whether this transaction can be a
trap
transaction that is engineered by the Plaintiff itself, particularly when it is not otherwise
shown that the Defendant intended to specifically target customers in the forum state.
47. Courts in foreign jurisdictions have underlined the need for fairness and certainty
while accepting evidence in the form of trap orders. In California Fig Syrup Company v
Taylors Drug Company Ltd (1897) 14 RPC 564 (Court of Appeal, UK), the Plaintiffs
trade name was California Syrup of Figs and the Defendants trade name was
American Syrup of Figs. The Plaintiffs sought trap orders for California American
Syrup, thereby creating ambiguity as to the name under which the defendant was selling
its own syrup of figs product. Carr & Sons v Crisp & Co Ltd (1902) 19 RPC 497 (High
Court of Justice, Chancery Division) was another case where there was ambiguity as to
what was actually said at the time of the trap purchase, coupled with difficulties of
subsequent recall. The Court observed that it would be wise on the part of the person
setting the trap to send a written order in order to avoid ambiguity.
Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy 197

48. In Foxs Glacier Mints Ltd v Joblings (1932) 49 RPC 352, (High Court of Justice,
Chancery Division), there was a possibility that requests for Glacier mints were
misunderstood or not heard, particularly as there was a common use of the word glassy
for sweets of that kind in the relevant market (the city of Leicester). In C Stillitz (a Firm)
v Jones & Higgins Ltd (1943) 60 RPC 15 (High Court of Justice, Chancery Division),
there was a conflict in evidence as to what happened in the making of the trap purchases.
In Cellular Clothing Coy Ltd v G White &
Coy Ltd (1952) 70 RPC 9 (High Court of Justice, Chancery Division), two trap orders
were successfully obtained through purchases in a shop, but no notice was given to the
Defendants of what had happened before issuing proceedings. Therefore, there was no
certainty as to whether the shop assistants in question were really made aware of what
was being asked for. The Court emphasised the need to either support the trap orders by
written evidence or atleast bring them to the notice of the person who was trapped. In the
view of the court (Harman J), this was exactly the way in which trap orders should not
be given and that such fragile evidence with no confirmation and which has been
sedulously concealed from the Defendants could not be relied upon to support a claim
for injunctive relief.
49. In C C Wakefield & Co Ltd v Purser (1934) 51 RPC 167 (High Court of Justice,
Chancery Division), there was evidence of one isolated instance of passing off, but it was
still held that this was insufficient for the purposes of an injunction to restrain continuing
conduct that was alleged to be occurring, unless it could be shown that there was some
kind of intentional conduct involved. In this regard, the following comments of Farwell J
underline the fairness considerations involved in evidence of trap purchases, while noting
that such orders may often be a necessary means of proof:
Test orders or, as the Defendant prefers to call them, trap orders are in a case of this
kind, it seems to me, quite essential. I fail to see how the Plaintiffs can safeguard
themselves or the public without having regard to such methods of testing the matter as is
used in the present case; but, trap orders or test orders, whichever they may be called, are
scrutinised by the Courts with some jealousy, and rightly so, because, if as the result of a
trap order or a test order, a person is to be charged with the very serious offence of
fraudulently misrepresenting the goods which he is supplying to the public, to the
detriment of the public as well as of the Plaintiffs, the Court must be satisfied that the
offence has been proved strictly. Further, if a person is resorting to a test order or a trap
order, even in a case of this kind, where the necessity for such a device may be a real one,
that person is bound to carry out the proceeding with the utmost fairness to the
prospective defendant to the action. It is essential, if the plaintiff is to succeed in the
action which he ultimately brings, that he should be able to satisfy the Court that he has
acted throughout with the utmost fairness to the defendant and given him every
reasonable chance of investigating the matter for himself, so that he may be in a position
to put forward in the action, if one follows, any and every defence properly open to him.
198 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

His Lordships concern was not to grant an injunction unless satisfied that the conduct
was likely to continue. On the basis of an isolated instance of passing off, he was not
prepared to do so, unless satisfied that the defendant had been intentionally seeking to
pass off the plaintiffs product (which he was not).
50. Showerings Ltd v Fern Vale Brewery Coy Ld. [1958] RPC 484 (High Court of
Justice, Chancery Division) was a case involving passing off constituted by several trap
purchases (asking for the Plaintiffs Babycham perry at the same public house and
being supplied with another perry drink). Danckwerts J rejected criticisms that were made
of the Plaintiffs trap orders here, noting that they were not based on one isolated instance
and that the Plaintiffs had tested the matter by several visits to see whether there was
simply one mistake or a regular practice; it was only after these inquiries, that a letter
was written and action subsequently launched. As this was in fact a motion for committal
of the defendant for contempt in relation to an earlier order of the court, the court did not
order committal because the defendant had acted honestly and the passing off was the
fault of his servants who were, in the Courts view, unfortunately persons of extremely
low intelligence.
51. Similar judicial remarks about the need for fairness in the use of trap orders, and the
giving of notice to defendants so that they can investigate alleged breaches, are to be
found in several Australian cases: see, for example, OT Co v Muir (1914) 31 WN (NSW)
87, 88 (Harvey J) and Bryant v Keith Harris & Co Ltd (1908) 33 ALR 437, 450-452
(Lockhart J)
52. In Marie Claire Album SA v Hartstone Hosiery Ltd [1993] FSR 693 (Chancery
Divison), a trap order had been made by the Plaintiffs solicitors for hosiery sold under
the name Marie Claire (the plaintiffs published a womens magazine under that name).
The Defendant challenged the way in which this had been done by the Plaintiffs
solicitors (this included arranging the meeting at which the order was given and the
making of a tape recording of the discussions), and there had also been a complaint to the
Solicitors Complaints Bureau. Chadwick J observed that if it is the law that a plaintiff is
entitled to misrepresent himself as a bona fide customer in the guise of executing a trap
order then his solicitor must be entitled, first, to advise him that this is so and secondly, to
set up the arrangements which enable the trap order to be executed effectively. It is but a
short step from that for the solicitor to be present at the execution of the trap order, if only
to ensure that a proper record is made of what occurs.
53. In Hilti AG v. Ucan Development Limited [1963] 7 RPC 160 (High Court of Justice,
Chancery Division), the Court, while considering the likelihood of repetition and the
danger of further instances of passing off, was concerned with only one transaction,
which was a trap order. The Court refused to grant an interlocutory injunction on the basis
of an isolated instance. Even in cases where no trap purchase was involved, the Courts
have not granted relief where only an isolated instance was shown.
Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy 199

[See: Rutter and Co. v. Smith (1901) 18 RPC 49 (High Court of Justice, Chancery
Division); John Knight & Sons v. Crisp (1904) 21 RPC 671 (High Court of Justice,
Chancery Division); Burberrys v. Watkinson (1906) 23 RPC 141 (High Court of
Justice, Chancery Division); Armstrong Oiler Company Ld v. Patent Axlebox and
Foundry Company (1910) 27 RPC 362 (High Court of Justice, Chancery Division)]. In
any event, to show that the Defendant was availing a jurisdiction, a series of
transactions by way of commercial dealings would have to be shown to have taken place
within the forum state.
54. Although evidence of trap orders has been accepted by courts in both trade mark
infringement and passing off cases, [See Bostitch Inc v McGarry & Cole Ltd[1964] RPC
173; Thomas French & Sons Ltd v John Rhind & Sons Ltd [1958] RPC 82; Pearson
Brothers v Valentine & Co (1917) 34 RPC 267; Procea Products Ltd v Evans & Sons
Ltd (1951) 68 RPC 210] the nature of business transacted through an internet website and
the nature of goods or services offered by the Defendant would be relevant. This would
involve two levels of examination. The nature of goods or services offered would be
relevant to determine as to their feasibility of being ordered on the internet by the
customers. For example, goods like books, DVDs and cosmetic products can be easily
ordered by the customers on the Internet. But goods like cars and furniture would be less
obvious candidates to be ordered online as the customers, in general, would like to
purchase these goods after actually visiting the shops and seeing them. Similarly, services
are another instance where online ordering may not be feasible. For example, food
services offered by restaurants, etc. However, professional services such as legal or
accounting services may be provided online to the clients. (See Sam Ricketson,
Trademark Liability Issues Arising out of Internet Advertising, Legal Studies Research
Paper No. 207, January 2007, Melbourne Law School available at
<http://ssrn.com/abstract=958858>)
In Walt Disney Productions Ltd. v. Gurvitz, [1982] F.S.R. the question was whether an
illegal sale of a video which constituted a trap order could be relied upon for the purposes
of demonstrating contempt of court. It was held that since the case involved a breach of
undertaking given to the Court by the Defendant, he would still be liable. In Ward Group
Pty Ltd v. Brodie & Stone Plc, (2005) FCA (22 April 2005), the Federal Court of
Australia held that the making of trap purchases would not confer jurisdiction on the
court. It was held that:
the use of a trade mark on the Internet, uploaded on a website outside of Australia,
without more, is not a use by the website proprietor of the mark in each jurisdiction where
the mark is downloaded. However, as explained above, if there is evidence that the use
was specifically intended to be made in, or directed or targeted at, a particular jurisdiction
then there is likely to be a use in that jurisdiction when the mark is downloaded. Of
course, once the website intends to make and makes a specific use of the mark in relation
to a particular person or persons in a jurisdiction there will be little difficulty in
200 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

concluding that the website proprietor used the mark in that jurisdiction when the mark is
downloaded.

A reference was made to the Section 9 of the Trade Mark Act of Australia which gave
rise to the question whether the Plaintiff had consented to the application of the mark in
the sense of the use of its physical manifestation in Australia by the website
proprietors. It was sought to be contended by the Plaintiff that trap purchases had never
been regarded as consent by the trap purchasers to the infringing use. Rather, they
are often a necessary step to establish that use. It was explained by the High Court that
why trap purchases were not generally considered a consent to infringing use is that the
infringing conduct is usually already occurring when the goods bearing the infringing
mark are advertised or offered for sale to the public in the jurisdiction. In that situation
the trap purchase is made to establish that fact, and cannot be seen to be consent to the
infringements that are occurring. However, the above situation was distinguished from
one where goods bearing the mark are being offered for sale by an overseas vendor to
the world at large and a trap purchase is made by a purchaser in Australia, who not only
procures the sale and delivery of the goods in Australia but also procures the sole use of
the infringing mark by the overseas vendor in Australia. In that situation, but for the trap
purchase, no use of the mark in Australia would have occurred. In those circumstances it
was held that it would be difficult for the trap purchaser, whose conduct was the sole
cause of the use of the infringing mark in Australia, to contend that it has not consented to
that use. It was accordingly held that the trap purchase would not confer jurisdiction on
the court.
57. Reverting to the present case, the position that emerges from the above judicial
decisions is that while in trade mark and infringement cases, trap orders or trap
transactions may be used as evidence, the fairness of such transactions is a relevant factor
to be considered. Other relevant factors would be the nature of goods or services offered
for purchase on the internet. If they require the customer to further physically verify their
quality then the mere purchase of such goods through a trap transaction may not be
treated as being sufficient evidence of infringement. The facts of each case will determine
whether the trap transaction is a fair one and has resulted in a purchase on the internet of
goods or services. A lone trap transaction will not be sufficient evidence of infringement
or passing off. For the purposes of establishing that a part of the cause of action arose
within the jurisdiction of the court, the Plaintiff would have to show that the Defendant
has purposefully availed of the jurisdiction of the forum court by entering into a
commercial transaction with an internet user located within the jurisdiction of the forum
court. This cannot possibly be a solitary trap transaction since that would not be an
instance of purposeful availment by the Defendant. It would have to be a real
commercial transaction that the Defendant has with someone not set up by the Plaintiff
itself. If the only evidence is in the form of a series of trap transactions, they have to be
shown to be obtained using fair means. The Plaintiff seeking to establish jurisdiction on
Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy 201

the basis of such trap transactions would have to aver unambiguously in the plaint, and
also place along with it supporting material, to prima facie show that the trap transactions
relied upon satisfy the above test. Question (iii) is answered accordingly.
Summary
58. We summarise our findings on the questions referred for our opinion as under:
Question (i): For the purposes of a passing off action, or an infringement action where
the Plaintiff is not carrying on business within the jurisdiction of a court, in what
circumstances can it be said that the hosting of a universally accessible website by the
Defendants lends jurisdiction to such Court where such suit is filed (the forum court)?
Answer: For the purposes of a passing off action, or an infringement action where
the Plaintiff is not carrying on business within the jurisdiction of a court, and in the
absence of a long-arm statute, in order to satisfy the forum court that it has jurisdiction to
entertain the suit, the Plaintiff would have to show that the Defendant purposefully
availed itself of the jurisdiction of the forum court. For this it would have to be prima
facie shown that the nature of the activity indulged in by the Defendant by the use of the
website was with an intention to conclude a commercial transaction with the website user
and that the specific targeting of the forum state by the Defendant resulted in an injury
or harm to the Plaintiff within the forum state.
Question (ii): In a passing off or infringement action, where the defendant is sought to be
sued on the basis that its website is accessible in the forum state, what is the extent of the
burden on the Plaintiff to prima facie establish that the forum court has jurisdiction to
entertain the suit?
Answer: For the purposes of Section 20 (c) CPC, in order to show that some part of the
cause of action has arisen in the forum state by the use of the internet by the Defendant
the Plaintiff will have to show prima facie that the said website, whether euphemistically
termed as passive plus or interactive, was specifically targeted at viewers in the
forum state for commercial transactions. The Plaintiff would have to plead this and
produce material to prima facie show that some commercial transaction using the website
was entered into by the Defendant with a user of its website within the forum state
resulting in an injury or harm to the Plaintiff within the forum state.
Question (iii): Is it permissible for the Plaintiff to establish such prima facie case through
trap orders or trap transactions?
Answer: The commercial transaction entered into by the Defendant with an internet user
located within the jurisdiction of the forum court cannot possibly be a solitary trap
transaction since that would not be an instance of purposeful availment by the
Defendant. It would have to be a real commercial transaction that the Defendant has with
someone not set up by the Plaintiff itself. If the only evidence is in the form of a series of
trap transactions, they have to be shown as having been obtained using fair means. The
Plaintiff seeking to establish jurisdiction on the basis of such trap transactions would have
to aver unambiguously in the plaint, and also place along with it supporting material, to
202 Banyan Tree Holding (P) limited v. A. Murali Krishna Reddy

prima facie show that the trap transactions relied upon satisfy the above test. For
determining if on the facts of the present suit, the Plaintiff has been able to show prima
facie that this court has the jurisdiction to entertain the suit, it is placed again before the
learned single Judge who will first determine that question in light of the law laid down in
this judgment.