Avnish Bajaj vs State (N.C.T.) Of Delhi on 21 December, 2004

Delhi High Court
Avnish Bajaj vs State (N.C.T.) Of Delhi on 21 December, 2004
Equivalent citations: (2005) 3 CompLJ 364 Del, 116 (2005) DLT 427, 2005 (79) DRJ 576
Author: V Sen
Bench: V Sen
JUDGMENT Vikramajit Sen, J.
1. Allowed, subject to all just exceptions.
2. The accused is the CEO of Baaze. Com, which Company facilitates the sale of any property, for
which it receives commission and also generates revenue from advertisements carried on its web
pages. There is no gainsaying that it does not own the items offered for sale, the payment and
delivery of which can be via a wholly independent agency. In the present case, Counsel for the State
has argued that the accused was remiss, at the pain of culpability, in not stopping payment through
Banking channels after learning of the illegal nature of the transaction. This prima facie indicates
that, at the present stage of investigation the sale consideration was not routed through the accused.
It is also not the case of the prosecution that the actual recording was viewable on the website. She,
however, contends that the Item's description "DPS Girl having fun" should have raised alarm.
3. It has been strenuously contended that if bail is not granted it will adversely impact e-commerce,
for which India may be the eventual loser. These are not considerations which would prevail or
tamper the Courts decision whether to grant or reject bail.
4. A preliminary objection has been raised to the effect the petitioner should have first approached
the Sessions Judge, although this Court has concurrent jurisdiction under Section 439 of the Code of
Criminal Procedure, 1973. My attention has been drawn to K.C. Jyya and etc. v. State of Karnataka,
1985 Crl.L.J. 214; Rameshchadra Kashiram Vora and etc. v. State of Gujarat and Anr., 1988 Crl.L.J.
210; and Hajialisher v. The State of Rajasthan, 1976 Cr.L.J. 1658 where the Karnataka, Gujarat and
Rajasthan High Courts have favored this view. Per contra, in Sri Ram v. Panna Lal, 2nd (1976) II
Delhi 401 this Court has struck down its own High Court Rules which prohibited the filing of
revisions in non-appealable cases unless the Sessions Judge had been approached. The Notification
dated 15.12.2004 must receive similar consideration. Since High Courts enjoys concurrent
jurisdiction it would be a salutary practice to direct the petitioners to approach the Sessions Judge
first, but that would remain a self-imposed constraint, akin to the exercise of the extraordinary
jurisdiction reposed in it by virtue of Article 226 of the Constitution. The matter has been argued at
great length and the State ought to have articulated this objection at the very first instance, on the
previous date of hearing.
5. Mr. Jaitely, has underscored that in Section 67 of the Information Technology Act, 2000 an
offence is committed by a person who publishes or transmits any material which is lascivious or
appeals to the prurient interest. Sections 292 and 294 of the Indian Penal Code have also been
mentioned which contemplate the selling, letting on hire, distribution or public exhibition of
obscene matter. He has emphasized that the provision does not bring within its sweep the causing of
the transmission in contradistinction to the publication of obscene material. Prima facie it has not
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