Memorandum on behalf of the Accused

BEFORE

THE SESSIONS COURT OF CYBERBERBAD

AT CYBERKHAND

FOR THE OFFENSES U/S. 292 IPC r.w. Section 67/67A/67B OF IT ACT, 2000

SESSION CASE NO. __ of __ /2019

STATE OF CYBERKHAND COMPLAINANT

Versus

APPZERD NEWS ACCUSED

On submission by

COUNSEL ON BEHALF OF THE ACCUSED

SURAJ KUMAR

ROLL NO. 539

SEMESTER VIII

SEC -A
Memorandum on behalf of the Accused

table of contents

INDEX OF AUTHORITIES .................................................................................................... II

LIST OF CASES ............................................................................................................... II
BOOKS AND COMMENTARIES ................................................................................... II
ACTS, STATUES, REPORTS AND MISCELLANEOUS .............................................. II
ARTICLES AND JOURNALS ........................................ Error! Bookmark not defined.
RESEARCH DATABASE ................................................................................................ II
STATEMENT OF FACTS ...................................................................................................... III
STATEMENT OF JURISDICTION .......................................................................................IV
SUMMARY OF PLEADINGS ................................................................................................ V
PLEADINGS ............................................................................................................................. 1
ISSUE NO. 1- THAT THE CASE FILED IS NOT MAINTAINABLE BEFORE SESSIONS
COURT ...................................................................................................................................... 1
ISSUE 2 THAT THE IT ACT, 2000 WOULD APPLY AS LEX SPECIALIS TO THE
EXCLUSION OF IPC ............................................................................................................... 2
2.1 THAT THE OFFENCE UNDER S.67/67A/67B IS A COMPLETE CODE
REGARDING OFFENCE CONCERNING PUBLISHING OR TRANSMITTING
OBSCENE MATERIAL ................................................................................................. 2
ISSUE 3- THAT THE ACCUSED IS EXEMPTED FROM INTERMEDIARY LIABILITY 3
3.1 THAT THE ACCUSED IS AN "INTERMEDIARY" AS DEFINED UNDER IT ACT,
2000 ................................................................................................................................. 3
3.2 THAT THE ACCUSED HAS EXERCISED DUE DILIGENCE ..................................... 3
3.3 THAT THE ACCUSED DID NOT PROVIDE ACCESS TO UNLAWFUL CONTENT
ON ITS PLATFORM ...................................................................................................... 3
PRAYER ............................................................................................................................... XIII

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Memorandum on behalf of the Accused

INDEX OF AUTHORITIES

List of Cases

 Gagan Harsh Sharma & Anr v. State of Maharashtra & Anr, (Criminal Writ Petition
No 4361 of 2018).
 Sreekumar v. State of Kerala, 2019 SCCOnline Ker 1305.
 Sharat Babu Digumarti v. Government (NCT of Delhi), (2017) 2 SCC 18.

Books and Commentaries

 Textbook on cyber law, Pavan Duggal(2014).
Acts, Statues, Reports And Miscellaneous

 INFORMATION TECHNOLOGY ACT, 2000.

 THE CODE OF CRIMINAL PROCEDURE, 1973.
 THE INDIAN PENAL CODE, 1860.

Research Database

 www.scconline.com
 www.manupatra.com

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Memorandum on behalf of the Accused

STATEMENT OF FACTS

I. BACKGROUND OF THE CASE

Mr. J Shankar petitioned the High Court of Cyberkhand to issue a writ of mandamus to ban a
social media app. The app in question is called Brrd and encourages users to post selfies in
response to a challenge posed by other users. The petitioner alleged that the app is leading to
controversies since paedophilic and explicit content is being posted on it. Recently, a citizen
of Cyberkhand has died in his attempt to take a dangerous selfie for a challenge on Brrd. The
High Court of Cyberkhand has prima facie acknowledged the seriousness of the threat to
lives of teenagers (who form 80% of the app’s users, the remaining 20% being in the age
range of 20 to 30), and, in the interim, issues the following directions to the Telecom
Regulatory Authority of India, the Secretary of MEITy, the Commissioner of Cyberberbad,
Cyberkhand, and the Business Head of India Operations, Brrd App: “i. The respondents are
directed to prohibit downloading of Brrd Mobile App.; ii. The Medias are prohibited from
telecasting the videos made using Brrd Mobile App.”.
II. DISPUTE
The next day, a new media journalistic portal, AppzerdNews, which was covering these
developments, shares videos made on the Brrd app to substantiate the story and demonstrate
to the AppzerdNews readers examples of videos that the HC has found objectionable. Some
of these were selfies of children in poses that purported to perform obscene acts, without
blurring the faces and identifiable features of the children. Others were selfies against the
backdrop of architectural monuments which depicted deities in the nude. Still others were
selfies at dangerous locations, such as during a surgery, jumping into a waterfall, hanging
from a skyscraper’s edge.
III. RELIEF SOUGHT/ADJUDICATION

Mr. J Shankar has filed an FIR against AppzerdNews for the offence of obscenity, child
pornography, nudity, cybervoyeurism, etc. against AppzerdNews. The case is up for hearing
before the Sessions Court of Cyberberbad, Cyberkhand on the 28th of May, 2019.

III
Memorandum on behalf of the Accused

STATEMENT OF JURISDICTION

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS THIS MEMORANDUM IN

RESPONSE TO THE COGNIZANCE TAKEN BY THE SESSIONS COURT UNDER S. 1931 OF CODE OF

CRIMINAL PROCEDURE, 1973.

STATEMENT OF ISSUES

ISSUE NO. 1-THAT THE CASE FILED IS NOT MAINTAINABLE BEFORE SESSIONS COURT

ISSUE NO. 2- THAT THE IT ACT, 2000 WOULD APPLY AS LEX SPECIALIS TO THE EXCLUSION OF IPC

IN THE PRESENT CASE

ISSUE NO. 3- THAT THE ACCUSED IS EXEMPTED FROM INTERMEDIARY LIABILITY

1
S. 193.Cognizance of offences by Courts of Session-
Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of
Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been
committed to it by a Magistrate under this Code.

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Memorandum on behalf of the Accused

SUMMARY OF PLEADINGS

ISSUE NO. 1-THAT THE CASE FILED IS NOT MAINTAINABLE BEFORE SESSIONS COURT

It is humbly contended before the Hon'ble court that in case of any offence under any other
law i.e. except IPC, when any court is mentioned in this behalf in such law, then it shall be
tried by such court. However, if no court is mentioned, it may be tried by High Court or any
other court by which such offence is shown in the First Schedule to be triable. As mandated
under s. 209, the magistrate can commit the case to sessions court only if the offences in
question are triable exclusively by Session Court.2 However, as we've already referred to
Schedule I which provides that such offences are triable by Judicial Magistrate First Class

ISSUE NO. 2- THAT THE IT ACT, 2000 WOULD APPLY AS LEX SPECIALIS TO THE EXCLUSION OF IPC

IN THE PRESENT CASE

It is humbly contended before the Hon'ble court that the when an offence is sufficiently
covered under the provisions of the Information Technology Act, 2000 (IT Act), the IT Act
will apply as lex specialis to the exclusion of the Indian Penal Code, 1860 (IPC). Sections 67,
67A and 67B was a complete code regarding offence concerning publishing and transmitting
obscene material in electronic form and non-obstante provision under Section 81 makes IT
Act a special law which will prevail over the general law, IPC.

ISSUE NO. 3- THAT THE ACCUSED IS EXEMPTED FROM INTERMEDIARY LIABILITY

It is humbly contended before the Hon'ble court that the Accused is a crowdsourced news
platform (like Newzulu) and contains user generated content. Under Section 2(w) of the IT
Act the accused is an intermediary and it cannot be held liable for actions of third parties on
the platform. It adheres to multiple safety and privacy standards that are in-built by default.
Only a minuscule percentage of the stories on its platform is flagged as inappropriate by
users, and that the majority use it for remaining updated on news. It is contended that the
links to videos/selfies shared for demonstration were linked to the source file on Brrd and
were not embedded in the story published. Therefore, the accused has not provided access to
unlawful content on its platform since the potential users would be redirected to the app
which has already been banned from downloading by the virtue of the order of the High
Court.

2
Section 209, Code of Criminal Procedure, 1973.

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Memorandum on behalf of the Accused

PLEADINGS
ISSUE NO. 1- THAT THE CASE FILED IS NOT MAINTAINABLE BEFORE
SESSIONS COURT

It is humbly contended that Section 26 of the CrPC provides for the courts by which offences
are triable. It states that in case of any offence under any other law i.e. except IPC, when any
court is mentioned in this behalf in such law, then it shall be tried by such court. However, if
no court is mentioned, it may be tried by High Court or any other court by which such
offence is shown in the First Schedule to be triable.3

In the present case, the offences concerning publishing and transmitting of obscene materials
are covered under s.67/67A/67B of the IT Act, 2000. The offences under IT Act falls into the
category of "offence under any other law" for the purposes of s.26. The alleged offences
entail a maximum imprisonment period upto 5 years. Now, a brief perusal of First Schedule
of CrPC would reveal that offences which entail punishment of 3 years to 7 years of
imprisonment would be tried by Judicial Magistrate Ist Class.4 Under s. 29, The Chief
Judicial magistrate has the power to pass sentence of imprisonment upto 7 years. Therefore,
he has the requisite jurisdiction to try such offences as permissible under the Code.5

As far as jurisdiction of Sessions court is concerned, section 193 clearly states it shall not
take cognizance of any offence as a court of original jurisdiction unless the case has been
committed to it by a magistrate under the Code.6 As mandated under s. 209, the magistrate
can commit the case to sessions court only if the offences in question are triable exclusively
by Session Court.7 However, as we've already referred to Schedule I which provides that such
offences are triable by Judicial Magistrate First Class. Only those offences which entail the
punishment of imprisonment for more than 7 years are exclusively triable by Sessions Court.

3
Section 26, Code of Criminal Procedure, 1973.
4
Schedule I, Code of Criminal Procedure, 1973.
5
Section 29, Code of Criminal Procedure, 1973
6
Section 193, Code of Criminal Procedure, 1973.
7
Section 209, Code of Criminal Procedure, 1973.
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Memorandum on behalf of the Accused

ISSUE 2 THAT THE IT ACT, 2000 WOULD APPLY AS LEX SPECIALIS TO THE
EXCLUSION OF IPC

2.1 THAT THE OFFENCE UNDER S.67/67A/67B IS A COMPLETE CODE REGARDING

OFFENCE CONCERNING PUBLISHING OR TRANSMITTING OBSCENE MATERIAL

In the present case, the accused has been charged under s. 292 IPC r/w s.67/67A/67B of the
IT Act for the offence of obscenity, child pornography, nudity, cybervoyeurism, etc. It is
humbly submitted that On 26 October 2018, a two judge bench of the Bombay High
Court vide its judgment in Gagan Harsh Sharma & Anr v. State of Maharashtra & Anr8 held
that when an offence is sufficiently covered under the provisions of the Information
Technology Act, 2000 (IT Act), the IT Act will apply as lex specialis to the exclusion of the
Indian Penal Code, 1860 (IPC). The Bombay High Court vide its judgment quashed and set
aside the First Information Report (FIR) insofar as the investigation into the offences
punishable under the IPC were concerned, on the basis that the ingredients of offences
alleged under IPC were the same as compared to the ingredients of the offences alleged to
have been committed under IT Act.

Recently in 2019 in the case of Sreekumar v. State of Kerala9 it was opined by the court that
Section 67 of the Information Technology Act, 2000 postulates that there should be
publication or transmission in the electronic form, any material which is lascivious or appeals
to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who
are likely, having regard to all relevant circumstances, to read, see or hear the matter
contained or embodied in it etc. The substantial
ingredients of Section 67 of the Information Technology Act, 2000 has broad resonance to
the provisions contained in Section 294 and 292(1) of the IPC, which deals with the
concept of obscenity.

In Sharat Babu Digumarti v. Government (NCT of Delhi)10, the accused were charged with
offences under Section 67 of the IT Act and Section 292 of the IPC. The question before the
Supreme Court was whether the accused who was discharged under Section 67 of IT Act
could be prosecuted under Section 292 of IPC. Placing reliance on non-obstante provisions
under Section 81 of IT Act and Section 67A and 67B, it was held that charge under Section
292 could not survive. The decision was on the basis that Sections 67, 67A and 67B was a

8
(Criminal Writ Petition No 4361 of 2018).
9
2019 SCCOnline Ker 1305.
10
(2017) 2 SCC 18.
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Memorandum on behalf of the Accused

complete code regarding offence concerning publishing and transmitting obscene material in
electronic form and non-obstante provision under Section 81 makes IT Act a special law
which will prevail over the general law, IPC.

ISSUE 3- THAT THE ACCUSED IS EXEMPTED FROM INTERMEDIARY

LIABILITY

3.1 THAT THE ACCUSED IS AN "INTERMEDIARY" AS DEFINED UNDER IT ACT, 2000

The Accused is a crowdsourced news platform (like Newzulu) and contains user generated
content. Under Section 2(w) of the IT Act the accused is an intermediary and it cannot be
held liable for actions of third parties on the platform. Intermediaries are defined by the
Information Technology(Amendment) Act, 2008 of India as “with respect to any particular
electronic records, any person who on behalf of another person receives, stores or transmits
that record or provides any service with respect to that record and includes telecom service
providers, network service providers, internet service providers, web-hosting service
providers, search engines, online payment sites, online auction sites, online market places and
cyber cafes.”11

3.2 THAT THE ACCUSED HAS EXERCISED DUE DILIGENCE

It is contended that it has been flagging offensive content on its platform using smarter
algorithms. It adheres to multiple safety and privacy standards that are in-built by default.
Only a minuscule percentage of the stories on its platform is flagged as inappropriate by
users, and that the majority use it for remaining updated on news.

It relies on the protection accorded to intermediaries in Section 79 of the Information

Technology Act.12 The Act’s Intermediary Guidelines provide conditional legal safeguards to
technology platforms for third-party content shared through their platforms.
It complies with local laws and ensures that it doesn’t promote objectionable content on
platform.

3.3 THAT THE ACCUSED DID NOT PROVIDE ACCESS TO UNLAWFUL CONTENT ON ITS PLATFORM

In the instant case, the Accused was covering the developments, in the process of which, it
shared videos made on the Brrd app to substantiate the story and demonstrate to the
AppzerdNews readers examples of videos that the HC has found objectionable.

11
Section 2(w), IT Act, 2000.
12
Section 79, IT Act, 2000.
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Memorandum on behalf of the Accused

However, It is contended that the links to videos/selfies shared for demonstration were linked
to the source file on Brrd and were not embedded in the story published. Therefore, the
accused has not provided access to unlawful content on its platform since the potential users
would be redirected to the app which has already been banned from downloading by the
virtue of the order of the High Court.

The Accused is committed to continuously enhance its existing measures and has introduced
additional technical and moderation processes as part of its ongoing commitment to the users
in India. It has removed contents that violated our Terms of Use and Community Guidelines,
following an exhaustive review of content generated by our users in India. It uses technology
and humans for content moderation/takedowns; and its team includes moderators for major
Indian languages.

Additionally, India doesn't have any legislation to take care of matters related to children's
cybersecurity. There are safeguards provided by the Information Technology Act to
intermediaries such as newmedia against liability for content created by its users.

It is contended that IT Act doesn't obligate the intermediary to screen all information being
hosted on its platform. India cannot have a system where something which is statutorily
permissible becomes judicially impermissible. The new media portal has an in-built security
mechanism, and its machine moderation will not allow uploading of videos with obscene or
nude contents. Judicial orders should be within the legislative framework, in keeping with
protecting free expression and privacy guaranteed under Art. 19 and Art. 21 of the
Constitution respectively.

The accused fully complies with the Information Technology (Intermediaries Guidelines)
Rules, 2011.13 It has robust measures to protect users against misuse, protect their privacy
and digital wellbeing. It includes easy reporting mechanisms that enable users and law
enforcement to report content that violates our terms of use and comprehensive Community
Guidelines.

13
Rule 3(4), Information Technology (Intermediaries Guidelines) Rules, 2011.
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Memorandum on behalf of the Accused

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, this
Hon’ble Court may graciously be pleased to adjudge and declare that:

I. The case before sessions court is not maintainable since it is triable by Chief Judicial
Magistrate and must be dismissed.
II. That the IT Act, 2000 would apply as lex specialis to the exclusion of IPC in the
present case.
III. That the accused is exempted from intermediary liability and hence not liable for
offences under s.67/67A/67B of the IT Act, 2000.

And pass any other order or relief in favour of the accused in the larger interest of justice.

All of which is respectfully submitted

Sd/-

Dated- 28/05/2019

Counsel on behalf of Accused

Suraj Kumar

XIII