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The Supreme Court on Monday stayed the proceedings against auction portal eBay India Pvt Ltd and its chief Avinash Bajaj for allegedly permitting sale of an MMS clip showing two school students from a Delhi school indulging in a sexual act.
A bench headed by Justice Altamas Kabir, while issuing notice to the Delhi government, stayed the proceedings under Sections 67 and 85 of the Information Technology Act, 2000. While Section 67 bans publishing obscene information in electronic form, Section 85 allows the prosecution of a person responsible for the business of a company over violations.
Bajaj, the then managing director of baazee.com (now Ebay India Pvt Ltd), was arraigned for allowing the MMS clip, recorded on a mobile phone camera, to be uploaded on the company's auction site in 2004.
Bajaj, a US citizen, had subsequently sold baazee.com to eBay in 2004. Challenging the Delhi High Court judgment that quashed proceedings under the India Penal Code on May 29 but permitted prosecution under the I-T Act, Bajaj contended that mere listing could not be construed as a crime under the act.
Bajaj in his petition stated that Section 67 of the Act, does not define the term obscenity and thus liability cannot be fixed on him for merely listing of the 2.37-minute clip video clip even if it was obscene. "Even assuming that video clip is obscene, mere 'listing' cannot be obscene for the purpose of Section 67 of the Act merely because the video clip may be obscene," he said while seeking quashing of all the proceedings against him.