Madras High Court
State Rep. By vs A.Duraimurugan Pandiyan Sattai on 6 August, 2021
CRL MP(MD). No.9457 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
( Criminal Jurisdiction )
Reserved on : 17.03.2022
Delivered on : 07.06.2022
PRESENT
The Hon`ble Mr.Justice B.PUGALENDHI
CRL MP(MD)No.9457 of 2021
in
CRL OP(MD)No.9381 of 2021
State Rep. by
The Inspector of Police,
Thiruppanandal Police Station,
Thanjavur District.
Cr.No.559/2021 ... Petitioner
Vs
1.A.Duraimurugan Pandiyan Sattai
@ Duraimurugan
2.The Additional Director General of Police
(Cyber Crime Wing),
Police Training College,
No.3, Dr.Natesan Road,
Ashok Nagar, Chennai – 83. ... Respondents
For Petitioner : Mr.T.Senthil Kumar
& R.2 Additional Public Prosecutor
For R.1 : Mr.N.Mohideen Basha
Amicus Curiae : Mr.K.K.Ramakrishnan
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CRL MP(MD). No.9457 of 2021
PETITION FOR CANCELLATION OF BAIL Under Sec.439(2)(3)
of Cr.P.C.
PRAYER:-
To cancel the Bail granted by this Court in
Crl.OP(MD)No.9381 of 2021, dated 06.08.2021.
ORDER : The Court made the following order :-
I invented the atomic energy for the upliftment of
the human kind. I did not expect that the same would be
used for disastrous effect. Had I anticipated the same, I
would not have invented atomic energy. This was the
anguish expressed by Dr.Albert Einstein after the
exploitation of his invention in World War II at Hiroshima
and Nagasahi during the year 1945.
2.Scientific inventions are made for the welfare of
the mankind. At the same time, it is also being misused.
Internet is one such wonderful invention in the 21st
century, which has transformed the lives of many. YouTube
is an online video sharing and social media platform,
claiming to have more than one billion monthly users, who
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CRL MP(MD). No.9457 of 2021
collectively watch more than one billion hours of videos
each day. It is claimed by YouTube that they are providing
sixty three lakh job opportunities in India alone. Even an
ordinary man is uploading his day-to-day activities,
skills, thoughts, travel experiences etc., on YouTube. In
fact, in the modern society, in most of the families,
everyday's meal is prepared using the videos uploaded in
YouTube.
3.The present case on hand is an example as to how
YouTube is being misused. The first respondent is an
YouTuber and he has made certain derogatory remarks as
against the former Chief Minister of the State of Tamil
Nadu. On the complaint lodged by one P.Rajasekar, a case
in Crime No.559 of 2021 was registered as against the
first respondent, on the file of the petitioner, for the
offence under Sections 153(A), 504 & 505(i)(b) IPC r/w
Section 67 of the Information Technology (Amendment) Act,
2008 and he was also apprehended.
4.Seeking bail, the first respondent has moved
Crl.OP(MD)No.9381 of 2021 and during the course of hearing
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CRL MP(MD). No.9457 of 2021
in the said application, the first respondent has filed an
affidavit of undertaking stating that he has realized his
mistake and that he will not indulge in any such
activities in future. By recording the undertaking
affidavit filed by the first respondent, this Court, by
order dated 06.08.2021, has granted bail.
5.According to the petitioner, the first respondent,
despite the undertaking affidavit filed before this Court,
is repeatedly involved in making derogatory statements as
against the Hon’ble Chief Minister of Tamil Nadu. Hence,
they have moved this application for cancellation of bail
earlier granted by this Court to the first respondent in
Crime No.559 of 2021.
6.Learned Additional Public Prosecutor appearing for
the petitioner / police, has made his submissions as
follows:-
6.1.YouTube pays money to the channels depending upon
the number of views and the subscribers of the channels.
That apart, YouTubers are also making money by allowing
the advertisements to run amidst their videos.
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6.2.The first respondent is repeating the offence of
making derogatory remarks, intentionally, in order to
induce the public to have more views for his YouTube
videos, so that he could gain pecuniary remuneration from
the YouTube.
6.3.In the case in Crime No.559 of 2021, the first
respondent has made certain derogatory statements as
against the former Chief Minister of Tamil Nadu and this
Court has granted bail only based on the affidavit of
undertaking filed by him. In that application, the first
respondent has stated that he has realized his mistake and
that he will not indulge in any such activities again.
However, the first respondent continues to commit these
kind of offences, which amounts to civil contempt and
therefore, they have filed this application to cancel the
bail.
7.Learned Additional Public Prosecutor has also filed
the details of cases registered as against the first
respondent, which reads as follows:-
i.Cr.No.309/2021, u/s.143, 147, 294(b), 447 & 506(ii)
IPC, on the file of the Trichy K.K.Nagar Police Station;
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ii.Cr.No.2/2021, u/s.153, 505(i)(b) IPC, on the file
of the Karur Cyber Crime Police Station;
iii.Cr.No.19/2021, u/s.153, 504, 505(i)(b), 505(ii)
IPC r/w 67 of IT Act, on the file of Thanjavur Cyber Crime
Police Station; and
iv.Cr.No.710/2021, u/s.143, 153, 153(A), 505(ii),
506(i), 269 IPC & 3 of the Epidemic Disease Act, 1987, r/w
67 of IT Act, on the file of the Thuckalay Police Station.
8.Learned Additional Public Prosecutor has also
narrated the manner in which the first respondent /
accused is spreading rumors in the social media. According
to him, in one of the video clipping, the first respondent
has stated that a private company provided contagious food
to its staff and that it took the lives of nine female
staff, who were working in the company. After
investigation, the allegation in that video clipping was
found to be false. However, based on the false statements,
the reputation of the company got damaged and the company
was thereafter, shut down. He also referred about other
incidents of false and derogatory statements made by the
first respondent in the social media.
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9.Learned Counsel appearing for the first
respondent / accused submitted that the first respondent
has realized his mistake and that he will not repeat this
offence again. He also claimed that not only the first
respondent, but also several lakh of people are promoting
such kinds of activities and are getting substantial
income from YouTube, depending upon the number of views.
Several lakh of people are doing such kinds of
publications and that they are all not reported.
10.He further submitted that YouTube is, in fact,
encouraging these type of defamatory videos and depending
upon the views, both YouTube as well as the channel
holders are making money out of it. According to him, some
of the channels are spreading false, derogatory, obscene
and scandalous publications and by them, they are
attracting more viewers and are earning money out of it.
11.Article 21 of the Constitution of India guarantees
the right to life as a fundamental right of every citizen.
As has been held by the Hon'ble Supreme Court in Maneka
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Gandhi vs. Union of India [AIR 1978 SC 597], right to life
embodied in Article 21 of the Constitution of India, is
not merely a physical right, but, also includes within its
ambit, the right to live with human dignity. Right to life
is therefore, the fundamental right and it is the duty of
the state to protect it.
12.Due to scientific inventions, anyone can access
the internet from any part of the world and the videos
uploaded in YouTube can be accused by anyone in the world.
In order to have a control, the Government of India has
enacted the Information Technology Act, 2000, imposing
certain functions and liabilities on the intermediaries
under Sections 69A & 79(3)b and under Section 84B of the
IT Act. For useful reference, the same are extracted as
under:-
“69A - Power to issue directions for blocking
for public access of any information through any
computer resource.
(1) Where the Central Government or any of its
officer specially authorised by it in this behalf is
satisfied that it is necessary or expedient so to do,
in the interest of sovereignty and integrity of
India, defence of India, security of the State,
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friendly relations with foreign States or public
order or for preventing incitement to the commission
of any cognizable offence relating to above, it may
subject to the provisions of sub-section (2) for
reasons to be recorded in writing, by order, direct
any agency of the Government or intermediary to block
for access by the public or cause to be blocked for
access by the public any information generated,
transmitted, received, stored or hosted in any
computer resource.
(2) The procedure and safeguards subject to
which such blocking for access by the public may be
carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with
the direction issued under sub-section (1) shall be
punished with an imprisonment for a term which may
extend to seven years and shall also be liable to
fine.
79(3)(b) - upon receiving actual knowledge, or
on being notified by the appropriate Government or
its agency that any information, data or
communication link residing in or connected to a
computer resource, controlled by the intermediary is
being used to commit the unlawful act, the
intermediary fails to expeditiously remove or disable
access to that material on that resource without
vitiating the evidence in any manner.
84B - Punishment for abetment of offences. -
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Whoever abets any offence shall, if the act abetted
is committed in consequence of the abetment, and no
express provision is made by this Act for the
punishment of such abetment, be punished with the
punishment provided for the offence under this Act.”
13.Though there are provisions in the Information
Technology Act, 2000 and Rules, there is no implementation
of the same by the concerned authorities and therefore the
offences are growing rapidly under cyber crime. Some of
the few recurrences are noted as follows:-
1. Pornographic contents
2. Making of a gun
3. Making of a bomb
4. Making of hooch
5. Derogatory statements
6. Horrific videos etc.
14.This Court can take judicial notice of the fact
that these type of videos can be easily accessed even by
the current generation kids, which would create chaos in
their minds and affect their mental growth.
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15.Learned Additional Public Prosecutor, on
instructions, submitted that the Superintendent of Police,
Cyber Crime Division - I has been nominated as the Nodal
officer for the State of Tamil Nadu under the provisions
of Information Technology (Procedure and Safe guards for
Blocking for Access of Information by Public) Rules, 2009,
vide G.O(D)No.20, Information Technology (B4) Department,
dated 18.03.2020. As per Section 69A of the Act, whenever
a request for blocking the content is made by the Central
Government or by its Authorized Officer, it is the duty of
the intermediary to block the content for public access.
The request which has been made under Section 69A of the
Act should be sent to the intermediaries and the
intermediaries who fail to comply with such direction
shall be punished with an imprisonment for a term which
may extend to seven years and shall also be liable to
fine. If the intermediaries acted as per Section 69A of
the Act, then they are excepted from liability as per
Section 79(3)(b) of the Act.
16.However, he has expressed certain difficulties
faced by the cyber crime wing, as follows:-
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1. For all complaints, FIR may not be able to be
registered due to the hesitancy of the complainants. In
such cases, the intermediaries may not block the content.
2. Even after registration of FIRs, some intermediaries,
such as Facebook and Twitter, are asking for court orders
for content blocking. In some cases, it might be difficult
to obtain court order in a timely manner to block the
contents.
3. Even after blocking the content, some intermediaries
such as YouTube are requesting court order for providing
the suspect details such as IP Address, associated mail
IDs and other identifying details of the suspect.
4. The intermediaries are only temporarily blocking the
content and are requesting for court orders for permanent
blocking and to provide the suspect details.
5. Intermediaries headquartered in other countries are
more oriented towards their country laws and some
intermediaries does not respond to the request of the
cyber wing.
6. The contents circulated through WhatsApp and other
instant messaging platforms could not be blocked, since
they are directly circulated between users.
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7. It is very difficult to receive the creativity log and
other details from WhatsApp, Facebook, Instagram, YouTube,
etc., in a timely manner.
8. LED intervention into the private profiles (locked
profile) of the suspects is difficult due to their privacy
settings. Hence it is hard to investigate such cases.
9. YouTube is blocking only the specific videos and not
the concerned YouTube Channel.
17.Considering the seriousness of the issue involved
and its consequences, this Court appointed
Mr.K.K.Ramakrishnan, Advocate, to act as an Amicus in this
matter.
18.Learned Amicus Curiae, after some research,
submitted that the main lacuna in the Act is that there is
no provision for license for the intermediaries. The
intermediaries operating from abroad are also bound by the
law of the land. Realizing the same, YouTube has
formulated 'The YouTube Community Guidelines'. As per the
guidelines, if any user across the world find any content
which contains,
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1. Spam and deceptive practices or
2. Sensitive content including against the policy of
child safety or
3. Violent or dangerous content or
4. Against any Firearm policy or
5. Misinformation content that can cause real-world
harm or
6. Manipulated contents to mislead the users or
7. Manipulated content that can cause serious risk of
egregious harm,
then the user has to report the same to the YouTube. The
guidelines further provides that if any one violates these
guidelines, they will get a warning first and if not
complied with, then their account will get terminated.
19.Learned Amicus has relied upon the decision of the
Hon'ble Supreme Court in the case of Pravasi Bhalai
Sangathan v Union of India [(2014) 11 SCC 477], wherein it
was observed as follows:-
“22. Be that as it may, this Court has
consistently clarified that the directions have been
issued by the Court only when there has been a total
vacuum in law, i.e. complete absence of active law to
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provide for the effective enforcement of a basic
human right. In case there is inaction on the part of
the executive for whatsoever reason, the court has
stepped in, in exercise of its constitutional
obligations to enforce the law. In case of vacuum of
legal regime to deal with a particular situation, the
court may issue guidelines to provide absolution till
such time as the legislature acts to perform its role
by enacting proper legislation to cover the field.
Thus, direction can be issued only in a situation
where the will of the elected legislature has not yet
been expressed.”
20.He has also placed reliance on yet another
decision of the Hon'ble Supreme Court in the case of
Google India (P) Ltd v. Visaka Industries [(2020) 4 SCC
162], wherein it was observed as follows:-
“98. The next question is proceeding on the
basis that it is the appellant which is the
intermediary within the meaning of the Act, whether
the appellant could be foisted with liability in a
case where appellant is being proceeded against in a
criminal case for having committed the offence
under Section 500 read with Section 120B of the IPC.
In this regard, let us consider the contentions of
the complainant. It is first contended that the
appellant’s role in the control of Google Groups as
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publisher is a question of fact. It is pointed out
that Google has control on the content being uploaded
by the authors. It has full freedom to remove any
content without reference to anyone much less court
orders. Google itself recognizes that defamation is
not an accepted conduct and takes an undertaking from
its users. Google cannot claim to be mere passive
technology service provider which is promoting free
speech. It provides various tools to create / edit /
modify the content apart from uploading the content.
It is contended that for the purpose of defamation,
Google may have some defence till such time till they
are not aware of the defamatory content. However,
once they are made aware of the defamatory content,
then, by allowing the same to continue, refusing to
exercise control as platform provider, it becomes
fully liable for the consequences of publishing
defamatory material. Being a technology giant, is not
a license to break laws. It does not provide immunity
from the liability under the IPC.
... ... ...
140. In this case, the substantial complaint of
the complainant appears to be based on the refusal by
the appellant to remove the matter after being
notified. Publication would be the result even in the
context of a medium like the internet by the
intermediary if it defies a court order and refuses
to takedown the matter. This, undoubtedly, is the
position even under the decision in Shreya Singhal
(2015) 5 SCC 1 which has read down Section 79(3)
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(b) and the Intermediary Rules already noted.
... ... ...
147. 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 in
our view, it may not be possible for the appellant to
persuade us to hold, could be gone into the
proceedings under Section 482 of the Cr.PC. This also
is on the basis that the Parent Company is the
intermediary. To make matters even more clear, even
proceeding on the basis that the first accused is the
originator, as defined in the Act, of the allegedly
defamatory matter, and the first accused is not only
the author but is also the publisher of allegedly
defamatory matter, and again proceeding on the basis
that it is the appellant, who is the intermediary and
not its Parent Company, the refusal on the part of
the appellant to remove the post, may amount to
publication on the basis of the principle enunciated
in Bryne (supra) and as applied to medium of internet
in Godfrey (supra), as later explained, however, in
Bunt (supra). In other words, there may be
publication within the meaning of Section 499 of the
IPC even in the case of an internet operator, if
having the power and the right and the ability to
remove a matter, upon being called upon to do so,
there is a refusal to do so. This is, no doubt,
subject to Shreya Singhal (supra) where it applies.
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It is also clear that to constitute the offence
under Section 500 of the IPC, mere publication would
not suffice. As we have noted, we cannot go into that
aspect on the basis of the notice sent on 09.12.2008
by the complainant on account of the obstacles which
we have pointed out earlier. In other words, the
disowning of the liability to remove the post is
inextricably intertwined with the appellant’s denial
of it being the intermediary. Also, the question as
to whether the demand for the URL and justification
for not removing, based on the same being questions
essentially relating to the facts, cannot be gone
into in Section 482 proceedings.
148. The only aspect, which really remains, is
the aspect that even accepting that the appellant is
an intermediary and it had the power otherwise to
accede to the request of the appellant to remove the
offending material, the so-called right or power of
the appellant is really not a power and the right,
but is nothing but a mere illusion as assuming such
powers or exercising such a right would involve
conferring of unilateral and impermissible
adjudicatory power, contrary to the regime of
fundamental right of free expression so indispensable
to the continued efficacy of the internet as an open
democratic medium. In other words, proceeding on the
basis of the assumption that the appellant is the
intermediary and that it stood alerted by the
complainant by letter dated 09.12.2008, the appellant
has not removed the offensive posts though it could
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technically remove it, therefore, it amounted to
publication and this publication attracts Section
499 of the IPC. The argument, however, is even
in Section 482 of the Cr.PC, the court must qualify
the right and the power of the appellant even
assuming to be the intermediary to act freely as it
would opposed to the principles which have been
evolved in regard to the internet service provider
that it is not open to it to unilaterally decide as
to what matter should be removed and it can act so as
to remove on the basis of the request only if there
is a court order. Any other view would make it a
despot strangling the free flow of ideas which is
what the internet is all about.
149. The problem arises in this way however. It
is while considering a challenge to Section 79 of the
Act, after it was substituted with effect from
27.10.2009 and considering the Rules made in the year
2011 also, and a challenge to the same also, that in
Shreya Singhal (supra), the provisions were read down
to mean that Section 79(3)(b) of the Act and Rule
3(4) of the Rules, would require an internet service
operator to takedown third-party information not on
mere knowledge of objection to its continuance but
after there has been an impartial adjudication as it
were by a court. To focus more on the problem, it
must be pointed out that in the facts of this case,
the acts constituting the alleged offence
under Section 499 of the IPC, were done not
when Section 79, after its substitution, was in
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place. The Rules were enacted in the year 2011. In
such circumstances, what we are asked to do is to
import in the principles into the factual matrix
when Section 79 was differently worded and in
proceedings under Section 482 of the Cr.PC. It is,
undoubtedly, true that Article 19(1)(a) and Article
19(2) of the Constitution of India were very much
available in 2008 and 2009 though Section 79 was in
its erstwhile avtar. In other words, will it not be
open to the appellant, assuming it to be the
intermediary, to contend that it cannot be called
upon to remove, defamatory matter comprised in any
third-party information without there being a court
order?
150. It is here that we would remind ourselves
that we are called upon in this case to decide the
correctness and legality of the order of the High
Court passed in the proceedings under Section 482 of
the Cr.PC. This contention, as such, has not been
raised. We notice, in fact, that in the very first
ground, however, before the High Court, it is
contended that the appellant has no role. It has no
control over the services provided on the website.
Thereafter, it is contended that even the employees
of the Parent Company do not have the ability to
remove the content posted on the blog without an
order from a court of competent jurisdiction. It is
the further case before the High Court that under the
law of United States of America which governed the
functioning of the Parent Company, it is not obliged
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or required to remove any allegedly defamatory
content without the court order. There was no
contention taken that on the basis that even if
appellant is assumed to be the intermediary, the
continuance of the articles after a request by the
complainant to remove it, would not constitute
publication at the hands of the appellant for the
reason that it will not constitute publication as
there is no court order in India. It was also, no
doubt, true that the decision of this Court in Shreya
Singhal (supra) was rendered nearly five years after
the impugned judgment of the High Court. As already
noticed, what was laid down in Shreya Singhal (supra)
was premised upon the challenge to Section 79(3)
(b) which replaced the erstwhile avtar of Section
79 and also a challenge to the Intermediary Rules of
2011, both of which provisions came to be read down
by the court.”
21.According to the investigating agency, in most of
the cases the affected persons are not coming forward to
lodge complaint. On the other hand, whenever a request is
made, the intermediaries are insisting for the FIR or the
Court order, which, of course, could not be found fault
with. However, as pointed out by the learned Amicus and
the materials produced by him, the intermediaries
operating in India are also governed by the Acts and Rules
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of the land. Realizing the same, the intermediaries have
framed certain guidelines for its users. There is a
contract between the intermediaries and the channels. In
case of any violation of the conditions, it is the duty of
the intermediaries to remove or block the channel as per
the terms of their agreement. It is duty of the
intermediaries to ascertain whether those videos are in
accordance with their policies and guidelines and in terms
of the contract and to block the channels if the videos
are not in accordance with the terms and policies. The
intermediaries are not expected to insist for FIR or any
court orders to remove the videos which are in violation
of their guidelines. If it is not blocked or removed even
after it was brought to their knowledge, the
intermediaries are committing the offence under Section
69A (3) of the Information Technology Act.
22.No doubt, the contents of the first appellant's
video violates the terms and conditions of the
intermediary and as such, the investigating agency ought
to have brought the same to the knowledge of the
intermediary. If the intermediary, even after bringing
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such violation to their knowledge, failed to remove the
videos, then the investigating agency shall book them as
well. At this juncture, this Court feels it appropriate to
refer to the following observation made by the Hon'ble
Supreme Court in Pravasi Bhalai Sangathan's case (supra):-
“27. As referred to hereinabove, the statutory
provisions and particularly the penal law provide
sufficient remedy to curb the menace of hate
speeches. Thus, person aggrieved must resort to the
remedy provided under a particular statute. The root
of the problem is not the absence of laws but rather
a lack of effective execution. Therefore, the
executive as well as civil society has to perform its
role in enforcing the already existing legal regime.
Effective regulation of 'hate speeches' at all levels
is required as the authors of such speeches can be
booked under the existing penal law and all the law
enforcing agencies must ensure that the existing law
is not rendered a dead letter. Enforcement of the
aforesaid provisions is required being in consonance
with the proposition salus reipublicae suprema lex
(safety of the state id the supreme law).”
23.From the records, it appears that the first
respondent is in the habit of committing the offences with
an intention to have more views so as to earn money from
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the social media. Within few days after submitting an
undertaking affidavit before this Court, based on which he
was enlarged on bail, he has indulged in further offence
by making derogatory remarks as against the Hon'ble Chief
Minister of the State. This Court is satisfied that it is
a clear violation of the terms and conditions stipulated
in the earlier orders and as such, this Court is inclined
to cancel the earlier bail granted to the first respondent
vide order dated 06.08.2021 in Crl.OP(MD)No.9381 of 2021.
Accordingly, this criminal miscellaneous petition
stands allowed and the bail granted by this Court to the
first respondent in Crl.OP(MD)No.9381 of 2021, dated
06.08.2021, is hereby cancelled. The petitioner /
investigating agency is to take necessary steps.
Internet : Yes 07.06.2022
Index : Yes / No
gk
To
1.The Inspector of Police,
Thiruppanandal Police Station,
Thanjavur District.
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2.The Additional Director General of Police
(Cyber Crime Wing),
Police Training College,
No.3, Dr.Natesan Road,
Ashok Nagar, Chennai – 83.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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B.PUGALENDHI,J
gk
ORDER
IN
CRL MP(MD)No.9457 of 2021
07.06.2022
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