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Is Baazee.com chief a victim of vague IT laws?

Monday, 20 December 2004, 08:00 Hrs
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NEW DELHI :Is Avnish Bajaj, the chief of the auction portal baazee.com arrested by Delhi Police for peddling obscene material, a victim of the Inherent "ambiguities and loopholes" in the fairly new information technology law?

Bajaj was arrested here Friday for not showing "due diligence" when the video clip involving the sexual escapades of two students of the Delhi Public School, R.K. Puram, was sold online.

"It is a shame that Bajaj was arrested under the pretext of investigation, despite his full fledged cooperation to the police," National Association for Software and Service Companies (NASSCOM) chief Kiran Karnik told IANS.

Reacting strongly to the arrest, Karnik asked, "He is a well-known and respected personality in the industry. What was the need to arrest and jail him like a criminal?"

Supreme Court advocate and cyber law expert Pawan Duggal, while refusing to comment on a case that is sub-judice, said: "There have always been loopholes in the IT Act, 2000. This has left ample scope for its abuse.

"I have highlighted these loopholes several times and I believe the government is in the process of plugging them and amending the act itself."

Karnik maintains the same stand saying: "By the virtue of extremely ambiguous laws the entire industry in the country could be brought to disrepute. And it is not just about this particular case."

Calling the law "draconian", Karnik said, "If the loopholes in the law permit such criminal offences, then change the law itself, rather than finding scapegoats to feed it."

Duggal said: "The law should be industry-friendly and not act as an impediment to its smooth functioning."

Which is exactly what it has done in American citizen Avnish Bajaj's case. He was charged under section 67 of the IT Act, which prohibits transmission and sale of obscene data electronically.

Unlike criminals who give the slip to the law at the first signs of the dragnet tightening around them, Bajaj flew down from Mumbai to the capital when asked to by the police.

Bajaj, an MBA from Harvard Business School, an MS in computer science from the University of Wisconsin and a BTech in computer science from IIT Kanpur, was sent to judicial custody till Dec 24. He is housed in Delhi's Tihar jail, sharing a barrack with over 70 other common criminals.

There are certain accepted circumstances and requirements among investigating agencies for which an accused is arrested and then taken into police custody with the consent of the court, point out legal experts and incensed IT industry members.

The conduct of an accused vis-à-vis an ongoing probe, the need to record his statement and recovery of incriminating material are broadly the requirements for which the custody of an accused is sought. In Bajaj's case Delhi Police made no such submission, they contend.

Even if it did have evidence against Bajaj, the police did not seek his custody in the beginning of the investigation.

Secondly, a probing agency generally avoids making an arrest if the accused cooperates with it in the investigation and if there is no valid reason to fear tampering of evidence by him, these experts said.

The police, at one point during the court proceedings on Sunday, conceded bail to Bajaj, but left the decision to the discretion of the court. In a later "U-turn", the prosecution asked for the judicial custody of the accused without submitting reasons.

Deputy Commissioner of Police (Economic Offences Wing) Prabhakar, who is in the charge of the case, refused to comment on the issue, despite being repeatedly approached.



Source: IANS
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