IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 19th MARCH, 2015
DECIDED ON : 31st AUGUST, 2015
CRL.REV.P. 127/2015 & CRL.M.A.No.3194/2015
SHARAT BABU DIGUMARTI
Mr.Siddharth Luthra, Sr.Advocate
with Ms.Ruby Singh Ahuja,
Mr.Vijay Sondhi, Mr.Rajat Bali,
Mr.Saleem Hasan, Mr.Shri Singh,
Mr.Rohit Sharma, Ms.Aakanksha
Singh, Mr.Karan Dev Chopra &
Mr.Abhinav Sekhri, Advocates.
STATE, GOVT. OF NCT OF DELHI
Ms.Kusum Dhalla, APP.
HON'BLE MR. JUSTICE S.P.GARG
The instant revision petition has been preferred by the petitioner - Sharat Babu Digumarti to challenge the legality and propriety of an order dated 22.12.2014 of learned Chief Metropolitan Magistrate (South), by which charge under Section 292 IPC was ordered to be framed against him. Revision petition is contested by the State.
Sequence of events relevant to the present case has been discussed elaborately in case „Avnish Bajaj vs. State‟, 2008 (105) DRJ 721, decided on 29.05.2008 by this Court. The facts are not in dispute. In the evening of 27.11.2004 (Saturday), co-accused Ravi Raj placed on baazee.com website a listing offering an MMS video clip for sale at `125 per piece adopting the seller‟s name as Alice Electronics at 12-A/39, Roshpa Tower, Main Road, Malanche, Kharagpur. Ravi Raj included the clip under the category „Books and Magazines‟ and sub-category „e- books‟ to avoid its detection by the filters installed by baazee.com. The electronic website baazee.com when visited had the following item description on its site. "Item 27877408 - DPS Girls having fun!!! Full video + Baazee points." The price was `125. Under the column "seller‟s details" the name indicated was : "alice elec" and Location : "Kharagpur". The seller was shown as a member since 21.07.2004. Upon clicking on the item description, the listing read as under :
DPS Girls having fun!!! Do you want to see that video clip which has rocked the whole DELHI and now has become a hot point of discussion in the entire Nation
YES, Then what are you waiting for!!! Just order for this product and it will be delivered to you within few hours.
This video is of a girl of DPS RK PURAM which has been filmed by his boyfriend in very sexual explicit conditions.
Please note : This video clip of around 2.30 Minutes and will be send to you as an email attachment.
The buyer interested in getting a copy had to click on the „buy now‟ option; make a payment through credit card or „paisa pay‟ option. The buyer had to pay `128 per clip which included a commission of `3 that went to Baazee.com India Pvt. Ltd. („BIPL‟). This was deducted from the amount received from the buyer and the balance of `125 per clip was remitted to the seller by the HDFC bank. The seller, on receiving confirmation that payment had been made, would send the video clip by an email attachment by a zip-file with the description „dps_rkpuram-sex- scandle.zip‟. Between around 8.00 pm or so of 27.11.2004 when the listing went on line till around 10 am on 29.11.2004 when the listing was de-activated, eight transactions of sale of the said video clip took place to buyers located in various parts of the country. At around 8.20 pm on 27.11.2004 information was received on email from one Amit Vohra using emailed email@example.com for Community Watch. It was informed that the user of Item ID : 27877408 was trying to sell a video which was illegal in India as it was shot on two people below the legal age of 18 & pornography was illegal in India. The site was advised to sort the issue and report it to the legal authorities to avoid trouble. He received a confirmatory reply at 8.30 p.m. This email was assigned to Namrata of BIPL at around 8.25 pm on 27.11.2004 itself. At around 6.25 pm the next day i.e. 28.11.2004, Sunday, it was assigned to Swapna Sawant of the BIPL and the priority was shifted to the „high alert‟ category. On 29.11.2004 at 10.10 am baazee.com wrote to Alice Electronics that they had closed the item as it was against the User Agreement. The video clip was removed on 29.11.2004 at around 10.38 a.m.
FIR No.645/2004 was registered by Crime Branch of Delhi police on receiving credible information on 09.12.2004. The police sent notices under Section 91 Cr.P.C. to the petitioner, Senior Manager, Trust and Safety, BIPL and Avnish Bajaj (since discharged) and obtained information on the working of the website. On 10.12.2004, in response to it, the petitioner provided details of the seller (alice_elec) and the buyers who had purchased that item and stated that they had already disabled the ability of the seller and the buyers in modifying their contact details. On 11.12.2004, the petitioner furnished details of the payments received from the buyers and confirmed that a sum of ` 17,787.87/- was disbursed to the seller „alice_elec‟ through the HDFC Payment Services. On 14.12.2004, the petitioner wrote to the police about his role and responsibility. Statements of the witnesses conversant with the facts were recorded during subsequent investigation. On 17.12.2004, Ravi Raj was arrested at Kharagpur and certain recoveries including the CPU containing hard-disk of the computer from where the email attachments of the offending video clip were effected from him. Avnish Bajaj was arrested on the same day to be released on bail on 21.12.2004. Upon conclusion of the investigation, a charge-sheet was filed showing Ravi Raj, Avnish Bajaj and Sharat Babu Digumarti as accused. On 14.02.2006, learned Metropolitan Magistrate took cognizance for commission of offences under Sections 292 and 294 IPC and Section 67 IT Act against all of them.
Avnish Bajaj filed Crl.M.C. 3066/2006 for quashing of the proceedings on various grounds. By a comprehensive order dated 29.05.2008, this Court came to the conclusion that no prima facie case under Section 294 IPC was made out; the petitioner (Avnish Bajaj) was not liable to be proceeded under Section 292 IPC as BIPL subsequently named as EIPL was not an accused in the...