GOOGLE INDIA PRIVATE LIMITED versus M/S. VISAKHA INDUSTRIES

Citation: [2019] 17 S.C.R. 661 · Decided: 10-12-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN, K.M. JOSEPH · Disposal: Disposed off

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Judgment (excerpt)

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GOOGLE INDIA PRIVATE LIMITED
v.
M/S. VISAKHA INDUSTRIES
(Criminal Appeal No. 1987 of 2014)
DECEMBER 10, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Code of Criminal Procedure, 1973: s.482 – Scope of
interference – Complaint instituted by first respondent company in
January, 2009 under ss.120B, 500 and 501 r/w s.34 IPC and it
related to an offence which perpetuated from 31.07.2008 onwards
– Case of complainant was that it was engaged in the business of
cement sheets – The first accused was the Coordinator of a group
hosted by the appellant which allegedly published an article
defaming the complainant – Summoning order by Magistrate –
Appellant-second accused filed petition under s.482 seeking to
quash the summoning order – High Court held that s.79 of the
Information Technology Act, 2000 exempted the Network Service
Provider from liability only when it proved that the offence was
committed without his knowledge or that he had exercised all due
diligence to prevent the commission of such offence and that this
being a question of fact cannot be decided by High Court in s.482
petition – High Court also noted that the intermediary could not
claim exemption in case he fails to expeditiously remove or disable
access to the objectionable material or unlawful activity, even after
receiving actual knowledge thereof and that since in this case
appellant did not take a single step to block the material or to stop
dissemination of objectionable material in spite of the notice issued
by complainant to that effect, appellant was not entitled to
exemption under s.79 of the Act, prior to its substitution, or s.79
of the Act, after its substitution, which took effect from 27.10.2009
– Aggrieved appellant filed instant appeal – Held: As to whether
the appellant was justified in not complying with the request for
removal of objectionable posts, involves question as to whether the
appellant was the intermediary, which is not permissible in
proceedings under s.482 – The question whether being a subsidiary
of Google LLC, the appellant is an independent body which is not
to be mulcted with liability, is not to be gone into in s.482 petition
   [2019] 17 S.C.R. 661
661
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SUPREME COURT REPORTS
[2019] 17 S.C.R.
– Also as to whether there is justification for the Parent Company
in requiring the complainant to provide the URL so that the
offending post could be identified and dealt with and dehors it
whether it could remove the post, is again a matter, which could
not be gone into the proceedings under s.482 – Magistrate to
proceed with the complaint – Information Technology Act, 2000 –
s.79 – Penal Code, 1860 – ss.499/500.
Penal Code, 1860: ss.499 and 450 – Law of defamation –
Discussed.
Disposing of the appeal, the Court
HELD: 1. CONTOURS OF THE JURISDICTION OF
THE HIGH COURT UNDER SECTION 482 OF CRIMINAL
PROCEDURE CODE, 1973
1. As far as the offence of defamation is concerned, even
though the offence under Section 500 is non-cognizable under
the First Schedule to the Cr.PC, the matter would not be
governed by paragraph 2 of the judgment of this Court in Bhajan
Lal as the it is the case of a complaint and not of a Police Report.
It does not appear to be a case where it could be held that
proceeding is manifestly attended with mala fide and/or where
the proceeding is maliciously instituted with an ulterior motive
for wrecking vengeance on the appellant with a view to spite
him due to private and personal grudge. [Para 43] [685-D-E]
State of Haryana and Others v. Bhajan Lal and others
(1992) Suppl. SCC 335 : [1991] 1 Suppl. SCR 387 –
referred to.
2. Whether Section 79 of the Information Technology Act,
2000, as it stood prior to the substitution, would provide a shield
to an intermediary.
2.1 Section 79, before its substitution, exempted the
Network Service Provider, which is defined as an intermediary,
from liability under the Act, Rules or Regulations made
thereunder in regard to any third-party information or data made
available by him provided the Service Provider: Proves that the
offence or contravention was committed without his knowledge
and that the Service Provider proves that he had exercised all
due diligence to prevent the commissioning of such offences or
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contraventions. This provision may be contrasted with the later
avtar of Section 79 of the Act consequent upon substitution with
effect from 27.10.2009. Sub-Section (1) of Section 79, in
unambiguous words, declares by way of 

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