The Bazee.com case which was one of the earliest criminal prosecutions to be launched under Information Technology Act 2000 appears to have finally completed its journey with the quashing of criminal prosecution against Mr Sharat Babu Digumarti. This case was filed in 2004 and lingered on in different courts until this current judgement on December 2016 seems to have brought a closure.
For some reason the judgement got re-circulated in some social media groups and hence I was constrained to bring this up for debate for some academic considerations. Let me make it clear that this discussion is not to express that the relief granted was unjustified.
It was clear from the beginning that this was a case where the juveniles who committed the offence landed other adults into legal problems. First was Mr Raviraj, the IIT student whose career was killed because he chose to sell the DPS-MMS video. Secondly Mr Avnish Bajaj, the CEO of baazee.com had to fight his case in all the Courts until 2008 before he was acquitted. But the case against Mr Sharat Babu Digumati lingered on further. All the three accused namely Raviraj, Avnish Bajaj and Sharat Babu have faced disproportionate punishment, intimidation and expenses while the two juveniles went unpunished thanks to the way law is in such cases.
In the Nirbhaya case there was discussion on the need to amend the Juvenile Justice system and some changes did occur and hopefully more changes may occur in future.
In the course of the journey of this Baazee.com case, there were several precedence created. Firstly the operation of “Vicarious Liability” under Section 85 of ITA 2000 was invoked and that was what sustained the case until, the Supreme Court in 2008 came to the conclusion that the case against Mr Avnish Bajaj did not stand because the Company itself has not been arraigned as an accused.
The original case had been filed under sections 292 and 294 of IPC and Section 67 of ITA 2000 and each section was separately debated and Mr Bajaj got acquitted out of all the sections one by one. However, Mr Sharat Babu had not got relief under Section 67 and hence the appeal was preferred with the Supreme Court.
In the current judgement, the point of legal debate was
“Whether proceedings under Section 292 can continue after being discharged under Section 67 of ITA 2008”
The final outcome of the Case indicates that the Court agreed with the view that ITA 2000 is a special law and hence Section 67 of ITA 2000 prevails over Section 292 of IPC. Since Section 67 has been quashed for other reasons, trial should not continue under Section 292 of IPC.
However, what is surprising was that this judgement made references to the Shreya Singhal case as well as prevalence of Sections 67A and 67B in the Act. These were developments which were not present when the cause of action arose.
Even if the Section 66A judgement was an opinion and could perhaps be taken as a guidance even in other cases, Sections 67A and 67B along with the diluted Section 67 are creations of ITA 2008 which did not have retrospective effect. They were effective from 27th October 2009. Hence it appears inappropriate that the Court should have quoted these two sections in this judgement.
Considering the content of this judgement, it appears that in future, Double Jeopardy could be implied when for the same offence both ITA 2000/8 and IPC are invoked and in such cases the ITA 2000/8 will prevail (In cases where electronic documents are involved). Hence police should be careful while framing charges and ensure that one section of either IPC or ITA 2000/8 alone has to be invoked for a particular offence or a step in the offence. Otherwise the charge may be quashed for double jeopardy unless the ITA 2000/8 charge prevails.
Since the problem with ITA 2000/8 is mainly in terms of production of evidence, Police prefer to use IPC sections where possible. Further during investigation stage, IPC sections provide some flexibility to start investigations based on some section which is cognizable under IPC, Police prefer to add IPC sections. These practices need to change now once the primacy of ITA 2000/8 as the law to be applied in case of offences involving electronic documents.
Further this judgement is a further vindication of the “Special Law” status of ITA 2000/8 which was stressed in the Basheer judgement on Section 65B of Indian Evidence Act.
P.S: In the S V Shekar Case discussed earlier it may be noted that the section which is non bailable was under IPC. Further the offence involved was “Forwarding of an electronic document in social media”. Hence it would be appropriate only if it is tried under ITA 2000/8 provisions and not under IPC. Hence the entire FIR in the case of S V Shekar case may have to be reviewed.