# Flipkart Internet Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 14
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-17
- **Case number:** Criminal Misc. Writ Petition No. 3487 of 2019
- **Bench:** Suneet Kumar, Syed Waiz Mian
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/flipkart-internet-pvt-ltd-v-state-of-u-p-ors-49127
- **Pages:** 10

## Headnote

A. Criminal Law - Constitution of India,
1950 - Article 226 - Indian Penal Code,
1860-Sections
406,
420,
467,
468,
471,474 & 474-A-Quashing of FIR-Fourth
respondent/ a practicing lawyer lodged a
criminal complaint against the petitionerCompany-fourth
respondent
bought
a
laptop from the Company which was not
as per the specification for which the
order was placed-Petitioner states it only
provides access to Buyers and Sellers
through
their
websites-PetitionerCompany is exempted from any liability
u/s 79 of the I.T. Act,2000, no violation
can ever be attributed or made out
against the directors or officers of the
intermediary -petitioner company is an
intermediary providing merely access to
Sellers/Buyers is not under challenge nor
disputed-Hence, the impugned FIR and
the consequent police report is set aside
and quashed.(Para 1 to 39)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

14 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that parties may, subsequent
to disputes having arisen between them, waive
the applicability of this sub-section by an express
agreement in writing."

24. The Seventh Schedule of the Act is
quoted below:

"Arbitrator's relationship with the
parties or counsel

1. The arbitrator is an employee,
consultant, advisor or has any other past or
present business relationship with a party.

X X X X

5. The arbitrator is a manager, director
or part of the management, or has a similar
controlling influence, in an affiliate of one of the
parties if the affiliate is directly involved in the
matters in dispute in the arbitration.

X X X X

12. The arbitrator is a manager,
director or part of the management, or has a
similar controlling influence in one of the
parties."

25. In the case in hand, Clause 25(ii) of
the General Conditions of Contract providing
for appointment of an Arbitrator Chief
Engineer, CPWD, in charge of the work or if
there be no Chief Engineer, the Additional
Director General of the concerned region of
CPWD or if there be no Additional Director
General, the Director General of Works is
clearly in the teeth of Section 12(5) of the
Act, as I am clearly of the view that the above
authorities, falling under category-1 of the
Seventh Schedule of the Act and thereby
being ineligible to be appointed as Arbitrator,
are also ineligible to nominate an Arbitrator
for resolution of dispute between the parties.

26. Therefore, in my considered view,
Sub-clause (ii) of Clause 25 of General
Conditions of Contract, to the extent it
provides for appointment of an Arbitrator by
the Chief Engineer, or Additional Director
General or Director General is liable to
skipped. If the aforesaid provision, to the
above extent, is taken out of the general
conditions of contract, in my view, the
Arbitrator for resolution of dispute between
the parties needs to be appointed by this Court.

27. Accordingly, this Court appoints
Hon'ble Mr. Justice Arun Tandon, a retired
Judge of this Court as Arbitrator, subject to His
Lordship's consent in terms of provisions
contained in Section 11(8) read with Section
12(1) of the Act by sending a request letter to
him. His Lordship's address is 3, Patrika Marg,
Civil Lines, Allahabad, mobile number is
9415214462
and
e-mail
is
"tandonarun30@gmail.com".

28. The matter is referred to the
Arbitrator for resolution of the dispute
between the parties. The Arbitrator shall be
paid fees as per the schedule attached to the
Act.

29. The present application is disposed
of.

30. In case, the Arbitrator recuses, the
matter shall be listed before the Court itself for
further orders.
----------
(2023) 1 ILRA 14
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Misc. Writ Petition No. 3487 of 2019

Flipkart Internet Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1 All. Flipkart Internet Pvt. Ltd. Vs. State of U.P. & Ors.
15
Counsel for the Petitioner:
Sri Kartikeya Saran, Ms. Suchita Mehrotra,
Sri Anurag Khanna (Senior Adv.)

Counsel for the Respondents:
G.A., Sri Samarth Sinha

A. Criminal Law - Constitution of India,
1950 - Article 226 - Indian Penal Code,
1860-Sections
406,
420,
467,
468,
471,474 & 474-A-Quashing of FIR-Fourth
respondent/ a practicing lawyer lodged a
criminal complaint against the petitionerCompany-fourth
respondent
bought
a
laptop from the Company which was not
as per the specification for which the
order was placed-Petitioner states it only
provides access to Buyers and Sellers
through
their
websites-PetitionerCompany is exempted from any liability
u/s 79 of the I.T. Act,2000, no violation
can ever be attributed or made out
against the directors or officers of the
intermediary -petitioner company is an
intermediary providing merely access to
Sellers/Buyers is not under challenge nor
disputed-Hence, the impugned FIR and
the consequent police report is set aside
and quashed.(Para 1 to 39)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Avnish Bajaj Vs St. (NCT of Delhi) (2004) SCC
Online Del 1160

2. St. of Haryana & ors.. Vs Bhajan Lal & ors.
(2006) 6 SCC 736

3. St. of Karnataka Vs L. Muniswamy & ors.
(1977) 2 SCC 699

4. Anand Kumar Mohatta & anr. Vs St. (NCT of
Delhi), Deptt. of Home & anr. (2019) 11 SCC
706

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Anurag Khanna, learned
Senior Advocate, assisted by Sri Kartikeya
Saran and Ms. Suchita Mehrotra, learned
counsels appearing for the petitioner and
Mrs. Manju Thakur, learned A.G.A. for the
State.

2. By the instant writ petition,
petitioner is seeking quashing of the First
Information Report1 dated 26 January
2019, bearing Case Crime No. 0208 under
Sections 406, 420, 467, 468, 471, 474 and
474-A IPC, registered at Police Station
Kavi Nagar, District Ghaziabad.

3.

Petitioner
is
a
Company
incorporated under the Companies Act,
19562, having its registered office at
Bengaluru (hereinafter referred to as
"Company").

4. The fourth respondent, claims to be
a practising lawyer at Ghaziabad, filed an
application under Section 156(3) Code of
Criminal Procedure, 19733 on which the
learned Magistrate vide order dated 14
January 2019, directed the concerned
police station to register a case in terms of
the application and investigate into it,
wherein, it is alleged that complainant
regularly purchases products from the
sellers on the website of the petitionerCompany knowing to be of quality goods
provided by the Company. The fourth
respondent on 12 October 2018, placed an
order for purchase of a Laptop being H.P.
15 A.P.U., Dual Core, A-6 (4GB/I TB
HDD/Windows 10 Home) 15" B.W.
Model, accordingly, made payment at Rs.
17,990/- through online payment for the
product. The booking ID generated for the
said
purchase
being
OD
113621553490664000.

5. Grievance of the fourth respondent
is that the Laptop delivered on 22 October
2018, was having processor of brand
16 INDIAN LAW REPORTS ALLAHABAD SERIES
''A.M.D' instead of brand ''Intel', thus,
according to the fourth respondent, delivery
of the product was not as per the
specifications for which order was placed.
Aggrieved, complainant-fourth respondent
registered a complaint with the petitionerCompany
regarding
the
alleged
discrepancy of the product.

6. The complaint was taken up by the
Company as per their Dispute Redressal
Policy, with the Seller i.e. Tech Connect
Retail Private Limited, but Seller declined
to replace or refund the consideration of the
product, stating that the product was
dispatched as per specifications purchased
by the fourth respondent.

7. Thereafter, fourth respondent
lodged a criminal complaint against the
petitioner-Company
directly
with
the
Senior
Superintendent
of
Police,
Ghaziabad. It appears that nothing was
done on the complaint, accordingly, fourth
respondent filed an application under
Section 156(3), Cr.P.C. before the Chief
Judicial
Magistrate,
Ghaziabad,
being
Application No. 6474 of 2018. On the said
complaint the Magistrate passed an order
dated 14 January 2019, in terms of the
application directing the concerned police
station to register a case for the offence
disclosed in the application.

8. In the impugned F.I.R. the fourth
respondent reiterated that he is a long time
user of the Company's website and had
placed order on down payment for the
purchase of H.P. Laptop from the market
place Seller (petitioner-Company). It is
alleged that the product received by the
fourth respondent was not as per the
specification for which the order was
placed. The matter was raised by a
complaint with the petitioner-Company,
but, the Seller declined to replace the
product and refund the consideration
stating that the product is as per the
specifications for which the order was
placed. It is further alleged that the product
delivered to the fourth respondent was
having brand ''A.M.D.' processor as against
brand ''Intel' for which order was placed as
per the specification of the product
displayed by the Seller on the Company's
website on the date of purchase.

9. The petitioner-Company has raised
challenge to the impugned F.I.R. seeking
its quashing, inter alia, on the ground that
petitioner-Company is an e-commerce
Marketplace/Platform that provides access
to Buyers and Sellers through their website
www.flipkart.com. Buyers and Sellers meet
and interact to execute purchase and sale
transaction, subject to terms and condition
as set out in the Buyers/Sellers Terms of
Use (Flipkart Terms of Use). The relevant
conditions of the Terms of Use, inter alia,
includes:

a. The website of the petitionerCompany is a platform that users, i.e.
buyers, and/or, sellers, utilize to meet and
interact
with
one
another
for
their
transactions. As such, the Company merely
provides a platform for the transactions of
its users and petitioner-Company is not a
party to or in control of any such
transaction between its users.

b.
All
commercial/contractual
terms (including the price, shipping costs,
payment methods, payment terms, date,
period and mode of delivery, warranties
related to products and services and after
sales services related to the products and
services are offered by and agreed to
between the Buyers and Sellers alone, as
such, the petitioner-Company does not
have any control or does not determine or
1 All. Flipkart Internet Pvt. Ltd. Vs. State of U.P. & Ors.
17
advise or in any way involve itself in the
offering
or
acceptance
of
such
commercial/contractual terms between the
Buyers and Sellers.

c. All discounts and offers on the
website are provided by the sellers/brands
and not by the petitioner-Company.

d. The petitioner-Company does
not make any representation or warranty as
to specifics of the products or services
(such as quality, value, salability) proposed
to be sold or offered to be sold or
purchased on the website, as such, the
petitioner-Company does not explicitly or
even impliedly support or endorse the sale
or purchase of any products or services on
the website.

e. The website is only a platform
that can be utilized by users to reach a
larger base to buy and sell products or
services and the petitioner-Company is
only
providing
a
platform
for
communication; the actual contract for sale
of any of the products or services is strictly
between the Seller and the Buyer of such
product.

f. The product offered for sale
and the related content including the
product description, prices, images, texts,
graphics, user interfaces, visual interfaces,
photographs, trademarks, logos, sounds,
music and artwork on the website of the
petitioner is a third party user generated
content and the petitioner-Company has no
control over such third party user generated
content. Therefore, the website of the
petitioner-Company operates as a neutral ecommerce platform which serves as a mere
conduit for Buyers and Sellers to conduct
their business.

10. In this backdrop, it is submitted by
the learned counsel for the petitionerCompany that in terms of functionality, the
petitioner-Company is an ''intermediary' as
defined under Section 2(1)(w) of The
Information
Technology
Act,
20004
providing
an
online
platform.
The
transactions between the Buyers and Sellers
on the platform are completely independent.
No criminal offence whatsoever is made out
against the petitioner-Company, the fourth
respondent being an aware citizen was fully
aware of the marketplace model and had
voluntarily signed the Buyers Terms of Use;
the fourth respondent has ex-facie made
contradictory averments that the Laptop was
purchased from the petitioner-Company and
that petitioner-Company hatched a criminal
conspiracy with the marketplace Seller. It is
further submitted that expressions like
''conspiracy', ''cheating' and ''forgery' has been
employed in the impugned F.I.R. but the
ingredients thereof has not been asserted or
detailed in the impugned F.I.R. It is further
submitted that the impugned F.I.R. has been
lodged maliciously to extract money from the
petitioner-Company and to damage its
goodwill, reputation and customer base. The
Company claims protection under Section 79
of the I.T. Act, 2000. In this backdrop, it is
submitted that the F.I.R. be quashed.

11. Learned State Counsel on specific
query submits that the State does not intend
to file counter affidavit to the writ petition.
As per their instructions police report
(closure) under Section 173(2) of Cr.P.C. has
been filed by the Investigating Officer, hence,
it is submitted that nothing remains for the
State to submit.

12. Learned counsel for the fourth
respondent despite putting in appearance has
not filed counter affidavit to the averments
made in the writ petition.

13. The petitioner-Company is
governed by the provisions of the I.T. Act,
2000,
petitioner-Company
is
an
18 INDIAN LAW REPORTS ALLAHABAD SERIES
''intermediary' and the role being that of a
facilitator or a conduit. It is an e-commerce
platform where Sellers and Buyers can
interact and select and purchase products
and items offered by the seller. The facts,
inter se, parties are not in dispute that
petitioner-Company is an e-commerce
intermediary where the platform does not
take title to the goods being sold on their
marketplace platform. Intermediary stands
on a different footing being only facilitator
of exchange of information or sales under
the I.T. Act, 2000. Intermediaries are not
liable for the goods put up for sale by the
Seller on the platform. Such e-commerce
networks are exempted from liability under
the I.T. Act, 2000, Rules or Regulations
made thereunder concerning any third
party. As per the impugned F.I.R. the date
of alleged offence is 22 October 2018 i.e.
on the date when the defective laptop
purchased by the fourth respondent was
received.

14. "Intermediary" is defined under
Section 2(1)(w) of the I.T. Act, 2000,
which reads as follows:

2(1)(w)
―intermediary,
with
respect to any particular electronic records,
means 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, onlinemarket places and cyber cafes.

15. In other words, the obligation of
the intermediary is to observe due diligence
and follow the guidelines that may be
prescribed by the Government in this
behalf. Therefore, reference will have to be
made to the Information Technology
(Intermediaries Guidelines) Rules, 20115.
The I.T. Guidelines was enacted under
Section 87 of I.T. Act, 2000, and came to
force in 2011. What is due diligence to be
observed by the intermediary has been
provided under Rule 3(1), which, inter alia,
reads as follows:

3. Due diligence to be observed
by intermediary -- The intermediary shall
observe following due diligence while
discharging his duties, namely: --

(1) The intermediary shall publish
the rules and regulations, privacy policy
and user agreement for access-or usage of
the intermediary's computer resource by
any person.

(2) xxx xxx xxx

(d)
infringes
any
patent,
trademark, copyright or other proprietary
rights;

(e) to (i) xxx xxx (3) The
intermediary shall not knowingly host or
publish any information or shall not initiate
the transmission, select the receiver of
transmission, and select or modify the
information contained in the transmission
as specified in sub-rule (2):

provided
that
the
following
actions by an intermediary shall not amount
to hosing, publishing, editing or storing of
any such information as specified in subrule: (2) --

(a) xxx xxx

(b) removal of access to any
information, data or communication link by
an intermediary after such information,
data or communication link comes to the
actual knowledge of a person authorised by
the intermediary pursuant to any order or
direction as per the provisions of the Act;

(4) The intermediary, on whose
computer system information is stored or
hosted
or
published,
upon
obtaining
1 All. Flipkart Internet Pvt. Ltd. Vs. State of U.P. & Ors.
19
knowledge by itself or been brought to
actual knowledge by an affected person in
writing or through email signed with
electronic
signature
about
any
such
information as mentioned in sub-rule (2)
above, shall act within thirty six hours and
where applicable, work with user or owner
of such information to disable such
information that is in contravention of subrule (2). Further the intermediary shall
preserve such information and associated
records for at least ninety days for
investigation purposes;

(5) The Intermediary shall inform
its users that in case of non-compliance
with rules and regulations, user agreement
and privacy policy for access or usage of
intermediary
computer
resource,
the
Intermediary has the right to immediately
terminate the access or usage lights of the
users
to
the
computer
resource
of
Intermediary and remove non-compliant
information.

(6) to (11) xxx xxx xxx‖

16. I.T. Guidelines Rules, 2011, has
since been superseded by the Information
Technology (Intermediaries Guidelines and
Digital Media Ethics Code) Rules, 2021.
The subsequent Guidelines does not apply
to the facts of the instant case, having
regard to the fact that the offence is alleged
to have been committed on 22 October
2018 i.e. the date of purchase of the
defective product.

17. Intermediary is obliged to
publish
the
Guidelines,
Rules,
Regulations,
Privacy
Policy,
and
User/Buyer Agreement. However, noncompliance of these Guidelines/Rules
have not been declared to be an offence
under the I.T. Act, 2000. Chapter-XII of
I.T. Act, 2000, provides for Offences,
Penalties and Procedures.

18. The present matter relates to
criminal liability and petitioner-Company
claims protection under Section 79, further,
it is submitted on behalf of petitionerCompany that the ingredients of the
offence, taking the allegations on face
value as alleged in the impugned FIR is not
made out.

19. Section 79 of I.T. Act, 2000, as it
earlier stood, came to be amended by the
Information Technology (Amendment Act
2008), it came into force on 27 October
2009. In the given facts the amended
Section 79 would be applicable and not the
provisions as it stood prior to the date of
amendment. Section 79 as it stands after
amendment reads thus:

"79 Exemption from liability of
intermediary in certain cases:

(1) Notwithstanding anything
contained in any law for the time being
in force but subject to the provisions of
sub-sections (2) and (3), an intermediary
shall not be liable for any third party
information, data, or communication
link hosted by him.

(2) The provisions of sub-section
(1) shall apply if-

(a)
the
function
of
the
intermediary is limited to providing access
to a communication system over which
information made available by third parties
is transmitted or temporarily stored; or

(b) the intermediary does not-

(i) initiate the transmission,

(ii) select the receiver of the
transmission, and

(iii)
select
or
modify
the
information contained in the transmission

(c) the intermediary observes due
diligence while discharging his duties
under this Act and also observes such other
guidelines as the Central Government may
20 INDIAN LAW REPORTS ALLAHABAD SERIES
prescribe in this behalf (Inserted Vide
ITAA 2008)

(3) The provisions of subsection (1) shall not apply if-

(a)
the
intermediary
has
conspired or abetted or aided or induced
whether
by
threats
or
promise
or
otherwise in the commission of the
unlawful act (ITAA 2008)

(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.

Explanation:- For the purpose of
this section, the expression "third party
information" means any information dealt
with by an intermediary in his capacity as
an intermediary."

20. Section 79 accordingly is a safe
harbour provision. Internet intermediaries
give access to host, disseminate and
index content, products and services
originated by third parties on the internet
which include e-commerce intermediaries
where the platforms do not take title of
the goods being sold. Examples of such
intermediaries include Amazon India,
Myntra, AJIO etc.

21. The I.T. Act, 2000, has an
overriding effect. Section 81 of I.T. Act,
2000, is extracted:

"81. Act to have overriding
effect: The provisions of this Act shall have
effect
notwithstanding
anything
inconsistent therewith contained in any
other law for the time being in force."

22. Intermediaries stand on a different
footing being only facilitator of the
exchange of information or sales. Prior to
the amendment the exemption provision
under Section 79 did not exist, therefore, an
intermediary would have been liable for
any third party information or data made
available by it. The 2008 amendment
introduced Chapter XII to the I.T. Act,
2000. The amendment purportedly was in
the backdrop of the decision of the Delhi
High Court rendered in Avnish Bajaj vs.
State
(NCT
of
Delhi).
After
the
amendment, intermediary is not liable
under any Act if it satisfied certain
requirements as detailed in Section 79 of
I.T. Act, 2000.

23. Petitioner-Company does not
follow inventory based model of ecommerce, where inventory of goods and
services is owned by e-commerce entity
and is sold to the consumers directly.
Petitioner-Company
claims,
it
is
an
intermediary between Buyer and Seller
within the meaning of Section 2(1)(w) of
the I.T. Act, 2000 and does not control the
transaction between the two parties. It only
acts as a neutral platform to allow sellers to
interact with the buyers/customers, without
exercising ownership over any goods or
indulging in the manufacture or dealing of
any goods. Petitioner-Company claims, it
only receives and stores the information on
behalf of the seller/ buyer and acts as a
facilitator/ intermediary.

24. The question is as to whether an
intermediary as defined under Section
2(1)(w) of the I.T. Act, 2000, would be
liable for any action or inaction by a party
or a vendor/seller making use of the
1 All. Flipkart Internet Pvt. Ltd. Vs. State of U.P. & Ors.
21
facilities provided by the intermediary in
terms of Buyers/Sellers Terms of Use of
the Company.

25. It is stated that petitionerCompany has established a marketplace on
the World Wide Web, more popularly
known as the internet, enabling a Seller to
upload, sell or even 'offer for sale' any
product on the Company platform. For this
purpose, a Seller has to create an account
with the Company and contractually agree
to Company's Buyers/Seller Terms of Use,
Policies, Seller Agreement, which contains
the basic terms and conditions of selling
products over Company marketplace which
every Seller/Buyer has to agree with.

26. Company being an intermediary
cannot be disputed, it comes with the
meaning and definition of ''intermediary'
under Section 2(1)(w) of the I.T. Act, 2000,
as amended by the Information Technology
(Amendment) Act, 2008. Company would
be entitled to the exemption from liability
in terms of Section 79 I.T. Act, 2000, read
with Section 81, if the requirements thereof
are met.

27. Company admittedly is not the
Seller, it is the Sellers registered with
Company who are the sellers of products
and services on its platform, it is the Sellers
who
are
solely
responsible
to
the
purchaser/customer.

28. The Seller Agreement as per
Terms of Use, details out the terms and
conditions relevant to the transaction,
which has been brought on record. (Flipkart
Terms of Use)

29. It cannot be expected that the
provider or enabler of the online marketplace
is aware of all the products sold on its
Website/marketplace. It is only required that
such provider or enabler put in place a robust
system to inform all Sellers on its platform of
their responsibilities and obligations under
applicable laws in order to discharge its role
and obligation as an intermediary. If the same
is violated by the Seller of goods or service
such Seller can be proceeded against but not
the intermediary.

30. The manner in which the
documents (Buyer/Seller Terms of Use) have
been executed, contents thereof, as also the
obligation of the parties stated therein
establishes the due diligence exercised by the
petitioner-Company, to be in accordance with
and compliance of Section 79(2)(c) of the I.T.
Act, 2000, read in conjunction with the
Information
Technology
(Intermediaries
Guidelines) Rules, 2011, in ensuring that
Vendors/Sellers who register on its Website
conduct themselves in accordance with and in
compliance with the applicable laws.

31. The Consumer Protection (ECommerce) Rules, 2020, makes a distinction
between marketplace e-commerce websites
and inventory e-commerce websites. As such
the petitioner-Company would come within
the meaning of a marketplace e-commerce
website,
thereby,
affording
the
above
exemption to the Company so long as the
requirements under Section 79 are followed
by the petitioner-Company.

32. In the present case, as detailed
above, petitioner-Company has complied
with the requirements of sub-sections (2) and
(3) of Section 79, as well as, the Information
Technology
(Intermediaries
Guidelines)
Rules, 2011.

33. In our considered opinion
Company has exercised 'due diligence'
under Section 79(2)(c) of the Information
22 INDIAN LAW REPORTS ALLAHABAD SERIES
Technology Act, 2000, read in conjunction
with
the
Information
Technology
(Intermediaries Guidelines) Rules, 2011.

34. The petitioner-Company is
exempted from any liability under Section
79 of the I.T. Act, 2000, no violation can
ever be attributed or made out against the
directors or officers of the intermediary, as
the same would be only vicarious, and such
proceedings as initiated against them would
be unjust and bad in law.

35. The only liability of an
intermediary under Section 79(3)(b) of the
I.T. Act, 2000, is to take down third-party
content upon receipt of either a court order
or a notice by an appropriate government
authority and not otherwise. As per
complaint
filed
by
the
complainant
indicates that the petitioner-Company,
raised the grievance of the complainant
with the Seller.

36. In terms of Section 79 of the I.T.
Act, 2000, there does not appear to be any
distinction between passive and active
intermediaries in so far as the availability
of
the
safe
harbour
provisions
are
concerned. An intermediary is not liable for
any third-party (Seller) information, data or
communication link made available or
posted by it, as long as it complies with
Sections 79(2) or (3) of the I.T. Act, 2000.
The exemption under Section 79(1) from
liability applies when the intermediaries
fulfil the criteria laid down in either Section
79(2)(a) or Section 79(2)(b), and Section
79(2)(c). Where the intermediary merely
provides access, it has to comply with
Section 79(2)(a), whereas, in instances
where it provides services in addition to
access, it has to comply with Section
79(2)(b). The case of petitioner-Company
is that they fulfil these conditions to qualify
as intermediaries. The factum that the
petitioner-Company is an intermediary
providing merely access to Sellers/Buyers
is not under challenge nor disputed. The
ingredients of the offence under Section
406, 467, 468, 471, 474 and 474-A IPC, in
sofar, it relates to the petitioner-Company
is not made out taking the allegations made
in the impugned FIR on face value.

37. In State of Haryana and Ors. v.
Bhajan Lal and Ors., Supreme Court has
set out the categories of cases in which the
inherent power can be exercised. Para 102
of the judgment reads as follows: -

"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we
have extracted and reproduced above, we
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any court or otherwise to
secure the ends of justice, though it may
not be possible to lay down any precise,
clearly defined and sufficiently channelised
and inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad
kinds of cases wherein such power should
be exercised.

(1) Where the allegations made in
the
first
information
report
or
the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.

(2) ..........

(3) ..........

(4) ..........
1 All. Devend Kumar @ Devendra Kumar Vs. State of U.P. & Ors.
23

(5) ..........

(6) Where there is an express legal
bar engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution
and
continuance
of
the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing
efficacious
redress
for
the
grievance of the aggrieved party.

(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously instituted
with an ulterior motive for wreaking
vengeance on the accused and with a view to
spite him due to private and personal
grudge."

38. Earlier the Supreme Court in State
of Karnataka v. L. Muniswamy and others
held as follows: -

"7. .....In the exercise of this
wholesome power, the High Court is entitled
to quash a proceeding if it comes to the
conclusion that allowing the proceeding to
continue would be an abuse of the process of
the Court or that the ends of justice require
that the proceeding ought to be quashed. The
saving of the High Court's inherent powers,
both in civil and criminal matters, is designed
to achieve a salutary public purpose which is
that a court proceeding ought not to be
permitted to degenerate into a weapon of
harassment or persecution. In a criminal case,
the veiled object behind a lame prosecution,
the very nature of the material on which the
structure of the prosecution rests and the like
would justify the High Court in quashing the
proceeding in the interest of justice....."

(Principle reiterated in Anand
Kumar Mohatta and another vs. State
(NCT of Delhi), Department of Home
and another.)

39. Having regard to the law
enunciated herein above and the facts and
circumstances of the case, the writ petition
is liable to succeed. Accordingly, the writ
petition stands allowed. The impugned FIR
and the consequent police report is set aside
and quashed.
----------
(2023) 1 ILRA 23
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Misc. Writ Petition No. 14672 of 2020

Devend Kumar @ Devendra Kumar
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pavan Kumar Mishra

Counsel for the Respondents:
A.G.A.

A. Criminal Law - Constitution of India,
1950-Article 226- UP Police Regulation -
Rule 231 - Quashing of history-sheetPetitioner categorically pleaded that he
has been acquitted in one matter and
discharged in other case too-Continuing
the history-sheet of the petitioner in view
of
Regulation
231
of
the
Police
Regulations, has not been justified by the
State as the petitioner has not indulged in
any repetitive criminal activity-No other
case has been lodged after 2007-the
approach in not reviewing the historysheet of the petitioner by stating that
petitioner is 'of criminal mind' clearly
shows the highhandedness of the state
respondents-Hence, the history sheet is
quashed.(Para 1 to 9)