From: "Y.P. Singh"
Date: Wed Dec 22, 2004 4:42 pm
Subject: Re: Travesty of Justice - Fault is not of law but those who implement law!
There is so much debate that the law must be changed. One must know that it is not the law which is at fault, it is they who are at fault who implement the law, but do not know the law.
I had prepared a small legal note on the arrest of Baazee CEO for a friend. I am pasting it below for perusal.
Legal note on arrest of the CEO of Baazee.com
The arrest of CEO Baazee.com seems to be unwarranted for the following reasons:
First: The principles of vicarious responsibility, i.e. one person being made liable for the act of another, has got no applicability in criminal law. It can be applied only in civil laws. Here a full-fledged criminal case has been made out on the basis of vicarious responsibility.
Second: Section 86 Indian Penal Code, which applies to all other laws including IT Act, stipulates mens rea i.e. a criminal intention and knowledge before a person can be made liable for an offence. Here there is neither any criminal intention nor knowledge.
Third: Section 2(w) of the IT Act gives a very liberal definition to the word 'intermediary' which includes "any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message. That being so Baazee is classified as an intermediary and as per section 79 intermediaries cannot be held liable if the offence is done without knowledge.
Fourth: In criminal law, actual cutting edge working hands become liable first and then the remotely placed CEO. However, only CEO is arrested and not the operators and supervisors. This makes the action discriminatory which is not permitted under Article 14 of the Constitution.
Fifth: The CEO is charged with omission to act. Under section 2(n) of the Cr.P.C. an offence of omission is committed only when it is made punishable under the individual statutes. Section 67 of the IT Act makes no such omission as punishable.
Sixth: The purpose of arrest is primarily to make use of admissibility of the conditional confesstion under section 27 of the Indian Evidence Act, made before a police officer. No such investigation expediencies were attenant thereto in this case.