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5.1 Appearing for the State, Ms. Mukta Gupta, learned Senior Standing Counsel submitted that the sequence of events, the listing, video clip and the role attributed to the petitioner, fully make out a case against the petitioner for the offences under Section 292 IPC and Section 67 IT Act. The offence under Section 292 IPC includes not only overt acts but illegal omissions within the meaning of Sections 32, 35 and 36 IPC. The failure to have adequate filter in a system which is entirely automated, entails serious consequences and a website cannot escape such legal consequences.

5.5 Finally it was submitted that the crime is of an extremely grave nature and cannot go unpunished on technicalities. Even if the charge sheet does not contain specific allegations, the matter can still proceed to the next stages. At this stage the court is only to examine if a prima facie case is made out and on that test no interference is called for.

Are the offences under Sections 292 and 294 IPC and Section 67 IT Act attracted? 6.1 The question that first requires to be addressed is whether in the facts and circumstances of the case, as disclosed in the charge sheet, a prima facie case for offences under Sections 292 and 294 IPC and Section 67 IT Act is made out. If the answer to this question is in the affirmative, the further question that arises is whether a prima facie case has been made out against the petitioner for those offences.

How far does the liberty of the Press extend in England?" he gave the characteristic answer: "I do not know. I am trying to find out !" (See 52 Harv. L. Rev. 40).
6.10 A reading of the above paragraphs shows that there are two elements to be satisfied in order to prove the offence under Section 292 IPC. The first is that the person accused of the offence had the knowledge that what was being offered for sale or exhibited or possessed was obscene. The second is that such person had the intention to commit any of the acts mentioned in Section 292 (2) IPC. In Ranjit D. Udeshi it was held that the prosecution did not have to prove that the accused had knowledge that the contents of the books being offered for sale were in fact obscene since the deeming provision in Section 292 (1) IPC stood attracted. However the prosecution was required to prove that the accused did intend to sell such obscene object.

19.7 It was then sought to be argued that even illegal omissions i.e. the failure to do an act would attract Section 292 IPC. Sections 32 and 35 IPC were referred to for this purpose. The law in India as regards illegal omissions has been explained in Ambika Prasad v. Emperor and Anna v. State of Hyderabad AIR 1956 Hyd 99. There must be a legal compulsion to do an act and the failure to perform such an act would result in illegal omission. Not any and every omission to perform an act would result in a criminal liability. A reference may be made to the decisions in Queen v. Anthony Udyan (1883) ILR 6 Mad 280 and Basharat v. Emperor AIR 1934 Lahore 813. These provisions will have to be strictly construed. Otherwise each and every omission can attract criminal liability. The charge sheet when read as a whole can at best be said to bring out a prima facie case of omission by BIPL which owned the website and not by the petitioner in his individual capacity.