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CYBER APPELLATE TRIBUNAL=a) Immediately disable access to any content, which is defamatory, derogatory, abusive and humiliative of the applicant’s company and its Chairman and CEO Sandy K.Chandra and further to disable access to all such content including disabling the said email account avinash.agnihotry@gmail.com.. (b) Further deliver by return email, the identity details of the sender (s) of the aforesaid defamatory and insinuating emails from the email account avinash.agnihotry@gmail.com including the contact number (cell number and email identity), address, telephone number, fax number and other identification details, if any.

CYBER APPELLATE TRIBUNAL

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(Ministry of Communications & Information Technology)
Jeevan Bharti (LIC) Building, Connaught Place,
New Delhi
APPEAL NO. 6/2009
Date of decision May 28,2010
Dr.Avinash Agnihotry ……Appellant
Through Mr.Pavan Duggal,Advo.
With Mrs.Renu Narula,Advocate
Versus
GMAIL.COM & anr. Respondents
Through Mr.Sajan Poovaya,Advo.
With Mr.Parveen Sherawat,Advo.
& Mr.Akhil Anand,Advocate
CORAM:
HON’BLE MR. JUSTICE RAJESH TANDON,
CHAIRPERSON

CYBER APPELLATE TRIBUNAL
(Ministry of Communications & Information Technology)
Jeevan Bharti (LIC) Building, Connaught Place,
New Delhi
APPEAL NO. 6/2009
Date of decision May 28,2010
Dr.Avinash Agnihotry
S/o Mr.S.P.B.Agnihotry
Mascon Global Limited,
B 8/10, Vasant Vihar,
New Delhi-110057 ……Appellant
Through Mr.Pavan Duggal,Advo.
With Mrs.Renu Narula,Advocate
Versus
GMAIL.COM
C/o Google Inc., California, USA
Email: removals@google.com
And
Google Inc.,California, USA
Email: removals@google.com Respondents
Through Mr.Sajan Poovaya,Advo.
With Mr.Parveen Sherawat,Advo.
& Mr.Akhil Anand,Advocate
JUSTICE RAJESH TANDON, CHAIRPERSON
Heard Mr.Pavan Duggal,Advocate assisted by Mrs.Renu
Narula,Advocate for the appellant and Mr.Sajan Poovaya,
Advocate assisted by Mr.Parveen Sherawat,Advocate and
Mr.Akhil Anand, Advocate for the respondents.
Present appeal has been filed praying following directions
to respondents to
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(a) Immediately disable access to any content, which is
defamatory, derogatory, abusive and humiliative of the
applicant’s company and its Chairman and CEO Sandy
K.Chandra and further to disable access to all such content
including disabling the said email account
avinash.agnihotry@gmail.com..
(b) Further deliver by return email, the identity details of the
sender (s) of the aforesaid defamatory and insinuating
emails from the email account
avinash.agnihotry@gmail.com including the contact
number (cell number and email identity), address,
telephone number, fax number and other identification
details, if any.
(c) Provide the complete details pertaining to the technicalities,
headers and footers information and comprehensive
identification parameters as also the complete computer
logs of the entire electronic records and emails generated,
sent, received and handled by or on behalf of the actual
owner(s)/user(s) of the email account
avinash.agnihotry@gmail.com in connection with the
subject matter in the present application from the email
account avinash agnihotry@gmail.com, including all
electronic records and emails and other electronic
communications generated, processed, sent or received
therein;
(d) Further disclose all the details concerning the true identity
and comprehensive identification of the actual
owner(s)/user(s) of the email account
avinash.agnihotry@gmail.com and all relevant registration
information connected therewith and further furnish all
traffic data connected with the email account
avinash.agnihotry@gmail.com. apart from preserving the
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same, without any tampering or alteration of any kind
whatsoever.
(e) Immediately retain and preserve in the electronic form all
electronic evidence pertaining to all the activities of the
sender(s) of the aforesaid defamatory and insinuating
emails from the email account
avinash.agnihotry@gmail.com along with all electronic
logs pertaining to, connected or associated with and
relating to the aforesaid defamatory and insinuating emails
and all activities of logins, postings, deletions and related
activities thereon.
(f) Preserve the said electronic evidence in a tamperproof
manner, preserve its authenticity and veracity, without
vitiating the evidence in any manner.
(g) In case of the failure of the respondents to comply with sub
paras (a) to (f), direct and require the respondents to
produce before this Tribunal all concerned records,
documents and all electronic records pertaining to the
aforesaid contraventions and violations of the provisions of
the Information Technology Act,2000 as amended using
computers, computer systems, computer networks,
computer resources and communication devices of the
respondents as well as all data and information resident
therein which has a connection, association, impact or
relationship or nexus of any kind whatsoever pertaining to
the aforesaid contraventions in violations of the provisions
of the Information Technology Act 2000 as amended
including identification details of the concerned person
who has actually done the aforesaid contraventions or
violations as per the records and electronic logs available
on the computers, computer systems, computer networks,
5
computer resources and communication devices of the
respondents.
(h) Further to issue commission for the examination of all
concerned documents, electronic logs as also electronic
records residing in the computers, computer system,
computer resources, computer networks and
communication devices of the respondents in order to
collect information about the various contravention and
violations of the Information Technology Act 2000 as
amended, as also rules, regulations, notifications, directions
and orders made thereunder as detailed in the aforesaid
paragraph.
In para-7 of the petition, appellant has stated that he has
sent the legal notice by email to the respondents.
In para-8 of the petition, appellant declared that the matter
regarding which this petition has been made is not pending before
any court of law or any other authority and has not been rejected
by any court of law or other authority.
Respondents have filed Statement of objections wherein it
has been stated that the appellant has impleaded Gmail.com as
respondent No.1 and that Gmail.com is a service offered by
GoogleInc., and is not a legal entity by itself, as such the appellant
has wrongly impleaded Gmail.com as a party to the proceedings.
Respondents have also objected to the maintainability of the appeal
on the ground that without exhausting the alternative remedy the
present appeal is not maintainable.
It was further submitted that Section 57 of the Information
Technology Act,2000 vests in this Tribunal’s jurisdiction to hear
appeals from the orders of the Controller or the Adjudicating
Officer and the Appellate Tribunal has been set up with the
express and limited purpose of providing any party aggrieved from
6
the order of the Controller, a forum to seek redress. The
jurisdiction of this Tribunal cannot extend to hearing any other
application or petition that is not an appeal from the order of the
Controller or an adjudicating officer.
Heard counsels for both the parties at length. The present
appeal raises the following points for consideration:-
In view of the submissions made by the parties following
points arise for determination:-
(i) Whether the present appeal is maintainable
without exhausting the alternative remedy of
approaching the Controller of Certifying
Authorities or the Adjudicating Officer
appointed under the IT Act,2000.?
(ii) Whether the ingredients made in the appeal
amounted to an offence under the provisions of
the Information Technology Act.?
(iii) Relief
Point No.(i)
Coming to the first point i.e. with regard to the
maintainability of the appeal, Act provides for adjudicating the
offences i.e. Certifying Authority and Adjudicating Officer in
respect of the different offences.
Clauses (g) and (m) of Section 2 of the IT Act define the
“Certifying Authority” and the “Controller”. Clauses (g) and (m)
of Section 2 of the IT Act read as under:-
(g) “Certifying Authority” means a person who has been
granted a licence to issue a (Electronic Signature)
Certificate under section 24;
(m) “Controller” means the Controller of Certifying
Authorities appointed under sub-section (1) of section 17.
7
Clause (n) of Section 2 of the IT Act defines the Cyber
Appellate Tribunal as under:-
(n) “Cyber Appellate Tribunal” means the Cyber Appellate
Tribunal established under sub-section (1) of Section 48.
Section 48 of the IT Act reads as under:-
“48.Establishment of Cyber appellate Tribunal.- (1) The
Central Government shall, by notification, establishes one
or more appellate tribunals to be known as the Cyber
Regulation Appellate Tribunal.
(1) The Central Government shall also specify, in the
notification referred to in Sub-section (1), the matters
and places in relation to which the Cyber Appellate
Tribunal may exercise jurisdiction.”
Section 46 of the IT Act provides for the appointment of
Adjudicating Officer. It reads as under:-
46. Power to adjudicate.-
(2) For the purpose of adjudging under this Chapter
whether any person has committed a contravention of
any of the provisions of this Act or of any rule,
regulation, direction or order made hereunder the
Central Government shall, subject to the provisions of
Sub-section (3),appoint any officer not below the rank
of a Director to the Government of India or an
equivalent officer of a State Government to be an
adjudicating officer or holding an inquiry in the manner
prescribed by the Central Government.
(2) The adjudicating officer shall, after giving the
person referred to in Sub-section (1) a reasonable
opportunity for making representation in the matter and
if, on such inquiry, he is satisfied that the person that
the person has committed the contravention, he may
impose such penalty or award such compensation as he
thinks fit in accordance with the provisions of that
section.
(3)No person shall be appointed as an adjudicating
officer unless he possesses such experience in the field
of Information Technology and legal or judicial
8
experience as may be prescribed by the Central
Government.
(4)Where more than one adjudicating officer are
appointed, the Central Government shall specify by
order the matters and places with respect to which such
officers shall exercise their jurisdiction.
(5)Every adjudicating officer shall have the powers
of a civil court which are conferred on the Cyber
Appellate Tribunal under Sub-Section (2) of Section 58,
and-
(a)All proceedings before it shall be deemed to be
judicial proceedings within the meaning of Sections
193 and 228 of the Indian Penal Code (45 of 1860)
(b)Shall be deemed to be a civil court for the
purposes of Sections 345 and 346 of the Code of
Criminal Procedure, 1973 (2 of 1974)
(c) Shall be deemed to be a Civil Court for purposes
of Order XXI of the Civil Procedure Code,1908 (5 of
1908)
Section 57 of the IT Act,2000 provides for filing the appeal before
the Tribunal. It reads as under:-
57.Appeal to Cyber Appellate Tribunal.-
(1) Save as provided in sub-section (2), any person
aggrieved by an order made by Controller or an
adjudicating officer under this Act may prefer
an appeal to a Cyber Appellate Tribunal having
jurisdiction in the matter.
(2) No appeal shall lie to the Cyber Appellate
Tribunal from an order made by an
adjudicating officer with the consent of the
parties.
(3) Every appeal under sub-section (1) shall be
filed within a period of forty five days from the
date on which a copy of the order made by the
Controller or the adjudicating officer is
received by the person aggrieved and it shall be
9
in such form and be accompanied by such fee
as may be prescribed:
Provided that the Cyber Appellate Tribunal may entertain
an appeal after the expiry of the said period of forty-five
days if it is satisfied that there was sufficient cause for not
filing it within that period.
(4) On receipt of an appeal under sub-section (1),
the Cyber Appellate Tribunal may, after giving
the parties to the appeal, an opportunity of
being heard, pass such orders thereon as it
thinks fit, confirming, modifying or setting
aside the order appealed against.
(5) The Cyber Appellate Tribunal shall send a
copy of every order made by it to the parties to
the appeal and to the concerned Controller or
adjudicating officer.
(6) The appeal filed before the Cyber Appellate
Tribunal under sub section (1) shall be dealt
with by it as expeditiously as possible and
endeavour shall be made by it to dispose of the
appeal finally within six months from the date
of receipt of the appeal.
A perusal of the aforesaid provision indicates that the
appeal lies against the orders passed by the Controller of Certifying
Authorities or the Adjudicating Officer appointed under Section 46
of the Information Technology Act.
However, counsel for the appellant has submitted that this
Court has inherent jurisdiction to decide the appeal even without
exhausting the alternative remedy. Counsel for the appellant has
referred the provisions of Section 58 of the Information
Technology Act in order to support the argument.
A perusal of the aforesaid provision indicates that the
appeal lies against the orders passed by the Controller of Certifying
Authorities or the Adjudicating Officer.
10
However, counsel for the appellant has submitted that this
Court has inherent jurisdiction to decide the appeal even without
exhausting the alternative remedy. Counsel for the appellant has
referred the provisions of Section 58 of the Information
Technology Act in order to support the argument.
It will appear from the aforesaid definitions that the
jurisdiction of the Certifying Authority is confined only to the
digital signatures as contained under Chapter II and Chapter III,
whereas Chapter IX relates to penalties, compensation and
adjudication by the Adjudicating Officer and Chapter X relates to
Cyber Appellate Tribunal
Counsel for the respondents have pointed out that present
appeal is not maintainable in as much as neither there is any order
passed by the Controller nor the matter pertains to Chapter II, III,
IV and V relating to electronic signatures. The matter relates to
the offences covered under Chapter IX and XI and as such the
Controller gets no jurisdiction and the appeal, therefore, is also not
maintainable.
Counsel for the appellant has submitted that this Tribunal
has jurisdiction to decide the appeal even without exhausting the
alternative remedy.
In support of the arguments, counsel for the appellant has
referred the following judgments.
(i) Raja Soap Factory & Ors. Vs. S.P.Shantharaj & Ors. Reported
in AIR 1965 SC 1449.
(ii) L.Mool Chand & Ors. Vs. Fatima Sultana Begum & Ors.
Reported in 1995(6) SCC 742.
(iii) Jet Ply Wood Pvt.Ltd. & Ors.Vs. Madhukar Nowlakha & ors
and Biswarup Banerjee & Ors. Vs.Madhukar Nowlakha, reported
in AIR 2006, SCC 1260
(iv) Vikas Agarwal Vs. Anubha reported in AIR 2002 SC 1796.
11
(v) Shipping Corporation of India Ltd. Vs.Machado Brothers &
Ors. Reported in 2004 (11) SCC 168.
(vi) Lakshmi Natesan Versus Periasamy & ors. Of Chennai High
Court in CMA No.9/2007
(vii) Justice P.Venugopal Vs. Union of India & ors. Reported in
AIR 2003 SC 3887
(viii) Assistant Collector of Central Excise Chandan Nagar Vs.
Dunlop India Ltd. & ors. Reported in AIR 1985 SC 330 and
(ix) Hussainara Khatoon & Ors.Vs. Home Secretary, State of
Bihar, reported in AIR 1979 SC 1360.
Some of the judgments referred above are quoted below.
Relevant portion (para-8) of the judgment in the case of
Raja Soap Factory & ors. (supra) reads as under:
“Section 151 of the Code of Civil Procedure preserves the
inherent power of the Court as may be necessary for the
ends of justice or to prevent abuse of the process of the
Court. That power may be exercised where thee is a
proceeding lawfully before the High Court. It does not
however authorize the High Court to invest itself with
jurisdiction where it is not conferred by law.”
Relevant portion of para-25 of the judgment in the case of
Jet Ply Wood Pvt.Ltd.(Supra) reads as under:-
“25………..There is no doubt in our minds that in the
absence of a specific provision in the Code of Civil
Procedure providing for the filing of an application for
recalling of an order permitting withdrawal of a suit, the
provisions of Section 151 of the Civil Procedure Code can
be resorted to in the interest of justice. The principle is
well established that when the Code of Civil Procedure is
silent regarding a procedural aspect, the inherent power of
the court can come to its aid to act ex debito jutitiae for
doing real and substantial justice between the parties.”
12
Relevant portion of para-11 of the judgment in the case of
Vikas Agarwal (supra) reads as under:-
“11……..It is submitted that inherent powers of the Court
under Section 151 CPC can always be exercised to advance
interest of justice and the technicalities will have no place
in such matters…………………The contention that
inherent powers under Section 151 CPC could not be
exercised was repelled and it was held that there was
nothing in Order XXXIX of the Code which expressly or
by necessary implication precluded the exercise of inherent
power of Court under Section 151 CPC and it was open for
the Court to pass a suitable consequential order under
Section 151 CPC as may be necessary for ends of justice or
to prevent the abuse of process of Court……….”
Relevant portion of the judgment in the case of Shipping
Corporation of India Ltd. (supra) reads as under:-
“The inherent power of a court is in addition to and
complementary to the powers expressly conferred under the
Code. But that power will not be exercise if its exercise is
inconsistent with, or comes into conflict with, any of the
powers expressly or by necessary implication conferred by
the other provisions of the Code………..Whatever
limitations are imposed by construction on the provisions
of S.151 of the Code, they do not control the undoubted
power of the Court conferred under Section 151 of the
Code to make a suitable order to prevent the abuse of the
process of the court.”
The aforesaid judgments have no application in the present
case in view of the judgment delivered on 28th May,2010 in the
case of Dr.Avinash Agnihotry Vs. Controller of Certifying
Authorities and another, Appeal No.4/2009
Further the matter is fully covered by the judgment of the
Apex Court in State of Uttar Pradesh Vs. Singhara Singh, reported
in AIR 1964 SC 358 where the Apex Court has relied upon the
judgment of Taylor V.Taylor (1876) 1 Ch.D 426 and decision in
13
Nazir Ahmed’s case 63 Ind.App 372( AIR 1936 PC 253 (2). Paras
8,12,13,17 and 19 of this judgment read as under:-
“8.The rule adopted in Taylor v. Taylor (1876) 1 Ch. D 426
is well recognized and is founded on sound principle. Its
result is that if a statute has conferred a power to do an act
and has laid down the method in which that power has to be
exercised, it necessarily prohibits the doing of the act in
any other manner than that which has been prescribed. The
principle behind the rule is that if this were not sc, the
statutory provision might as well not have been enacted. A
magistrate, therefore, cannot in the course of investigation
record a confession except in the manner laid down in S.
164. The power to record the confession had obviously
been given so that the confession might be proved by the
record of it made in the manner laid down. If proof of the
confession by other means was permissible, the whole
provision of S. 164 including the safeguards contained in it
for the protection of accused persons would be rendered
nugatory. The section, therefore, by conferring on
magistrates the power to record statements or confessions,
by necessary implication, prohibited a magistrate from
giving oral evidence of the statements or confessions made
to him.”
12. A similar argument was advanced in Nazir Ahmed’s
case, 63 Ind App 372 : (AIR 1936 PC 253 (2) and rejected
by the Judicial Committee. We respectfully agree with that
view. The section gives power to make a record of the
confession made by an accused which may be used in
evidence against him and at the same time it provides
certain safeguards for his protection by laying down the
procedure subject to which alone the record may be made
and used in evidence. The record, if duly made may not
doubt be admitted in evidence without further proof but if it
had not been so made and other evidence was admissible to
prove that the statements recorded had been made, then the
creation of the safeguards would have been futile. The
safeguards were obviously not created for nothing and it
could not have been intended that the safeguards might at
the will of the prosecution be by passed. That is what
would happen if oral evidence was admissible to prove a
confession purported to have been recorded under S.164.
Therefore it seems to us that the objection of s.164 was not
to give the prosecution the advantage of Ss. 74 and 80 of
the Evidence Act but to provide for evidence being made
14
available to the prosecution subject to due protection of the
interest of the accused.
13.We have to point out that the correctness of the decision
of Nazir Ahmed’s case 63, Ind App 372 : (AIR 1936 PC
253 (2) has been accepted by this Court in at least two
cases, namely, Shiv Bahadur singh v. State of Vindhya
Pradesh, 1954 SCR 1098 : (AIR 1954 SC 322) and Deep
Chand v. State of Rajasthan, 1962-1 SCR 662 : (AIR 1961
SC 1527). We have found no reason to take a different
view.
17.The next case to which reference was made by Mr.
Aggarwala was Ghulam Hussain v. The Kind, 77 Ind App
65 (PC). That case dealt with the question whether a
statement recorded under S.164 which did not amount to a
confession could be used against the maker as an admission
by him within Ss. 18 to 21 of the Evidence Act and it was
held, that it could. The Judicial Committee observed that
“the fact that an admission is made to a Magistrate while he
is functioning under S. 164 of the Code of Criminal
Procedure cannot take it outside the scope of the Evidence
Act.” That case only held that the relevancy of a statement
recorded under S.164 had to be decided by the provisions
of the Evidence Act. We have nothing to do with any
question as to relevancy of evidence. The question before
us is whether a confession which is relevant can be proved
by oral evidence in view of the provision of s. 164 of the
Code. The question dealt with in Ghulam Hussain’s case,
77 Ind App 65 (PC) was quite different and that case has no
bearing on the question before us.
19.Another case cited was Emperor v. Ram Naresh. ILR
(1939) All 377 : (AIR 1939 All 242). What had happened
there was that two accused persons walked into the court of
a magistrate and wanted to make a confession. The
magistrate called a petition writer and the accused persons
dictated an application to him and that was taken down by
the petition-writer and signed by them. That petition was
admitted in evidence under S.21 of the Evidence Act. It
was held, and we think rightly, that Nazir Ahmed’s case, 63
Ind App 372 : (AIR 1936 PC 253 (2) did not prevent the
petition being admitted in evidence because it only forbade
certain oral evidence being given. This case turned on
wholly different facts and is of no assistance.”
15
In the case of Ajay Bansal Vs. Anup Mehta & ors, reported
in 2007(Vol.II) SCC page 275, the Apex Court has held that,
“Ordinarily, an application under Article 227 of the
Constitution of India would not be maintainable where an
appeal lies. An appeal lay from the decree under Section
96 of the Code. When an appeal could be filed, ordinarily,
an application under Article 227 of the Constitution of
India would not be entertained.”
In the above judgment, it was also held,
“The defendant in such a case can also be left to appeal
against the decree and therein challenge the order refusing
leave to defend in terms of Section 105(1) of the Code.”
In view of the aforesaid case law by the Apex Court, no
appeal is maintainable without exhausting the alternative remedy
before the Adjudicating Officer.
Further in view of the submissions made in para-7 of the
appeal, the case is fully covered by the judgment in Appeal
No.4/2009, Dr.Avinash Agnihotry Vs. Controller of Certifying
Authorities and another decided on 28th May,2010, and no appeal
is maintainable without exhausting the alternative remedy.
Point No.(ii)
Coming to the second point, since the appellant has not
exhausted alternative remedy, therefore, I am not entering into the
merits of the controversy and it will be open for the Adjudicating
Officer to adjudicate the grievances in accordance with law.
Counsel for the appellant has also submitted alternatively
that the matter may be sent to the Adjudicating Officer for
disposal. I am not inclined to accept the submission as there is
16
nothing on the record to indicate that any complaint has been filed
before the Adjudicating Officer at any point of time as required
under Section 46 of the Information Technology Act. On the other
hand, any complaint filed before the Controller of Certifying
Authorities will not serve the requirement of Section 46 of the
Information Technology Act. The appellant is required to file a
complaint before the Adjudicating Officer who has the jurisdiction
for deciding the disputes. This point is decided in negative.
Point No.(iii) Relief
In view of the aforesaid, the appeal lacks merit and is
dismissed at the admission stage.
However, liberty is given to the appellant to file the
complaint within 30 days of this judgment. The Adjudicating
Officer shall not debar the appellant from filing a complaint as
having been time barred and only the privilege of the time with
regard to the pendency of the appeal shall be given automatically.
At any stage if the Adjudicating Officer requires the record of the
Appellate Authority in connection with the various orders passed
from time to time, same may be called for the disposal of the
complaint.
Parties are left to bear their own costs.
Registrar is directed to send a copy of this judgment to all
the Adjudicating Officers of the States and the Union Territories
for information and record.
May 28,2010 (Justice Rajesh Tandon)
Chairperson

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