Breather for eBay, chief in MMS scandal

Supreme Court stays proceedings under IT Act; charges under IPC quashed earlier

NEW DELHI: The Supreme Court on Monday stayed criminal proceedings against auction portal eBay India Pvt Ltd and its chief Avinash Bajaj for allegedly permitting sale of an MMS (multimedia messaging service)  clip showing two students from a Delhi school indulging in a sexual act.

The MMS clip was allegedly recorded on a mobile phone by one of the participants in the act and forwarded to his friends. A student of the Indian Institute of Technology (IIT) in Kharagpur put it up for auction on Baazee.com.

A bench headed by Justice Altamas Kabir, while issuing notice to the Delhi government, stayed the proceedings under Sections 67 and 85 of the Information Technology Act, 2000.

Section 67 bans publishing obscene information in electronic form and section 85 allows the prosecution of a person responsible for the business of a company that violates the law.

Bajaj, the then managing director of baazee.com (now ebay India Pvt Ltd), was arraigned for allowing the MMS clip to be uploaded on the company’s auction site in 2004. A US citizen, Bajaj, had subsequently sold Baazee.com to eBay in 2004.

The high court on May 29 allowed the proceedings under Sections 67 and 85 of the Information Technology Act, which fixes the responsibility of a person for the conduct of business of the company as well as the company.

It, however, quashed the criminal proceedings against Bajaj under Sections 292 (sale of obscene books) and 294 (obscene acts and songs in public place) of the Indian Penal Code.

Challenging the HC judgment that quashed proceedings under IPC but upheld action under IT Act, Bajaj’s appeal before the apex court says that mere listing could not be construed as a crime under the Act.

Bajaj’s petition said that the Act does not define the term ‘obscenity’ and thus liability cannot be fixed on him for merely listing of the 2.37-minute video clip even if it was obscene.

“Even assuming that video clip is obscene, mere ‘listing’ cannot be obscene for the purpose of Section 67 of the Act merely because the video clip may be obscene,” he said while seeking quashing of all the proceedings against him.

The high court had granted bail to Bajaj on a surety of Rs one lakh after the trial court’s order sending him to the Tihar jail to undergo a week-long remand.

b_rakesh@dnaindia.net