Five years on, the MMS scandal that rocked the country continues to haunt Avnish Bajaj[pictured], co-founder of 'bazee.com', now a subsidiary of auction pioneer, eBay.

Mr. Rajiv Luthra, Managing Partner of Luthra & Luthra, who have been representing Avnish Bajaj ever since the scandal broke out, confirmed that his office has filed a Special Leave Petition before the Supreme Court of India seeking leave to appeal against the order of the Delhi High Court. The Supreme Court has granted an interim stay of the order of the Delhi High Court and proceedings in the lower court.

In 2004, a student of the Indian Institute of Technology decided to sell a pornographic clip of two students of Delhi Public School engaging in an act of sexual nature through bazee.com. In December the same year, an FIR was filed and Avnish Bajaj, a US citizen and graduate of the Harvard University, was directed to spend a weekend in the Tihar jail.

Subsequently released on bail, Avnish Bajaj then petitioned the Delhi High Court to annul his criminal prosecution for the offences of making available for sale and causing to be published an obscene product. Senior Counsels Arun Jaitley and Sidharth Luthra argued that given that the clip itself was not made available on the website, the video clip was essentially a transaction between the buyer and the seller. It was further argued that while the company itself was not made party to the complaint, criminal liability could not be attached to its director. More importantly, the petition also raised question concerning the criminal liability of directors for the offences attributable to a company.

The Delhi High Court, while candidly admitting that the law in India as inadequate to prevent dissemination of pornographic material over the internet, suggested the adoption of a different legislative model. The bench, Justice S. Muralidhar exonerated Avnish Bajaj to the extent of his automatic criminal liability on account of his being the managing director of the company, under the Penal Code. However, the Court held that a case was made out under the Information Technology Act, despite the fact that the company was not arraigned as an accused.

The matter is expected to come up for hearing before the apex court next week. Vijay Sondhi, Luthra's litigation Partner, is spearheading the matter. When Bar & Bench contacted Senior Counsel Sidharth Luthra, he excused himself from speaking to the media as a rule in all the matters in which he appears.