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Monday, December 19, 2016

Sections 292 and 294 of the Indian Penal Code (IPC) and Section 67 of the Information Technology Act, 2000 (for short, “the IT Act”) = Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. = SHARAT BABU DIGUMARTI Vs. GOVT OF NCT OF DELHI

                                 Reportable


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1222 OF 2016
             (Arising out of S.L.P. (Criminal) No. 7675 of 2015)




Sharat Babu Digumarti                        …Appellant(s)

                                  Versus



Govt. of NCT of Delhi                        …Respondent(s)


                           J  U  D  G  M  E  N  T

Dipak Misra, J.


      Leave granted.

2.    The appellant along one Avnish Bajaj and  others  was  arrayed  as  an
accused in FIR No. 645 of 2004.   After  the  investigation  was  concluded,
charge sheet was filed before the learned  Metropolitan  Magistrate  who  on
14.02.2006 took cognizance of the offences  punishable  under  Sections  292
and 294 of the Indian Penal Code (IPC) and Section 67 of the
Information Technology Act, 2000 (for short, “the IT Act”)  against  all  of
them.  Avnish  Bajaj  filed  Criminal  Misc.  Case  No.  3066  of  2006  for
quashment of the proceedings on many a  ground  before  the  High  Court  of
Delhi which vide order dated  29.05.2008 came to the conclusion  that  prima
facie case was made out under Section 292 IPC, but it expressed the  opinion
that Avinish Bajaj, the petitioner in the said case, was not  liable  to  be
proceeded under Section 292 IPC and, accordingly, he was discharged  of  the
offence under Sections 292 and 294 IPC. However, he was  prima  facie  found
to have committed offence under Section 67   read with Section 85 of the  IT
Act and the trial court was  directed  to  proceed  to  the  next  stage  of
passing of order of charge uninfluenced by  the  observations  made  in  the
order of the High Court.
3.    Being grieved by the aforesaid order, Avnish Bajaj preferred  Criminal
Appeal No. 1483 of 2009. The said appeal was tagged  with  Ebay  India  Pvt.
Ltd. v. State and Anr.  (Criminal  Appeal  No.  1484  of  2009).   The  said
appeals were heard  along  with  other  appeals  that  arose  from  the  lis
relating to interpretation  of  Sections  138  and  141  of  the  Negotiable
Instruments Act, 1881 (for short, “NI Act”) by a three-Judge Bench as  there
was difference of opinion between the two learned Judges in Aneeta  Hada  v.
Godfather Travels and Tours (P) Ltd.[1].
4.    Regard being had to the pleas raised by  Avnish  Bajaj  and  also  the
similarity of issue that arose in the context of  NI  Act,  the  three-Judge
Bench stated the controversy that emerged for consideration thus:-
“2. In Criminal Appeals Nos. 1483 and  1484  of  2009,  the  issue  involved
pertains to the interpretation of Section 85 of the  Information  Technology
Act, 2000 (for short “the 2000 Act”) which is in pari materia  with  Section
141 of the Act. Be it  noted,  a  Director  of  the  appellant  Company  was
prosecuted under Section 292 of the Penal Code, 1860 and Section 67  of  the
2000 Act without impleading the Company as an  accused.  The  initiation  of
prosecution was challenged  under  Section  482  of  the  Code  of  Criminal
Procedure before the High Court and the High Court held  that  offences  are
made out against the  appellant  Company  along  with  the  Directors  under
Section 67 read with Section 85 of the 2000  Act  and,  on  the  said  base,
declined to quash the proceeding.

3. The core issue that has emerged in  these  two  appeals  is  whether  the
Company could have been made liable for prosecution without being  impleaded
as an accused and whether the  Directors  could  have  been  prosecuted  for
offences punishable under  the  aforesaid  provisions  without  the  Company
being arrayed as an accused.”

5.    In the context of Section 141 of NI Act, the Court ruled thus:-
“58. Applying the doctrine of strict construction, we are of the  considered
opinion that commission of offence by the company is  an  express  condition
precedent to attract the vicarious liability of others. Thus, the words  “as
well  as  the  company”  appearing  in  the  section  make   it   absolutely
unmistakably clear that when the company can be prosecuted,  then  only  the
persons mentioned in the other categories could be  vicariously  liable  for
the offence subject to the averments in the petition and proof thereof.  One
cannot be oblivious of the fact that the company is a  juristic  person  and
it has its own respectability. If a  finding  is  recorded  against  it,  it
would create a concavity in its reputation. There  can  be  situations  when
the corporate reputation is affected when a Director is indicted.”

6.    As far as the appeal of Avnish Bajaj is concerned, the Court  referred
to Section 85 of the IT Act which is as follows:-
“85. Offences by companies.—(1) Where a person  committing  a  contravention
of any of the provisions of this Act or of  any  rule,  direction  or  order
made  thereunder  is  a  company,  every  person  who,  at  the   time   the
contravention was committed, was in charge of, and was responsible  to,  the
company for the conduct of business of the company as well as  the  company,
shall be guilty of the contravention and shall be  liable  to  be  proceeded
against and punished accordingly:

 Provided that nothing contained in this sub-section shall render  any  such
person liable to punishment if he proves that the contravention  took  place
without his knowledge or that he exercised  all  due  diligence  to  prevent
such contravention.

(2)  Notwithstanding  anything  contained  in  sub-section  (1),   where   a
contravention of any  of  the  provisions  of  this  Act  or  of  any  rule,
direction or order made thereunder has been committed by a  company  and  it
is proved that the  contravention  has  taken  place  with  the  consent  or
connivance of, or is attributable  to  any  neglect  on  the  part  of,  any
director,  manager,  secretary  or  other  officer  of  the  company,   such
director, manager, secretary or other officer shall also  be  deemed  to  be
guilty of the contravention and shall be liable to be proceeded against  and
punished accordingly.”

7.    Interpreting the same, the Court opined thus:-
“64. Keeping in view the anatomy of the aforesaid  provision,  our  analysis
pertaining to Section 141 of the  Act  would  squarely  apply  to  the  2000
enactment. Thus adjudged, the Director could not have been held  liable  for
the offence under Section 85 of the 2000 Act. Resultantly,  Criminal  Appeal
No. 1483 of 2009 is allowed and the  proceeding  against  the  appellant  is
quashed. As far as the Company is concerned, it  was  not  arraigned  as  an
accused. Ergo, the proceeding as initiated in the  existing  incarnation  is
not maintainable either against the company or against the  Director.  As  a
logical sequitur, the appeals are  allowed  and  the  proceedings  initiated
against Avnish Bajaj as  well  as  the  Company  in  the  present  form  are
quashed.”

8.    After the judgment was  delivered,  the  present  appellant  filed  an
application before the trial court to  drop  the  proceedings  against  him.
The trial court partly allowed the application and dropped  the  proceedings
against the appellant for offences under Section 294 IPC and Section  67  of
the IT Act, however, proceedings under Section 292  IPC  were  not  dropped,
and vide order 22.12.2014, the trial court framed the charge  under  Section
292 IPC.
9.     Being aggrieved by the order framing of charge, the  appellant  moved
the High Court in Criminal Revision No. 127 of 2015 and the  learned  Single
Judge by the impugned order declined to interfere on the ground  that  there
is sufficient material showing appellant’s involvement  to  proceed  against
him for the commission of the offence punishable under Section 292  IPC.  It
has referred to the allegations made against him and the  responsibility  of
the appellant and thereafter referred to the pronouncements  in  P.  Vijayan
v. State of Kerala and  Anr.[2]  and  Amit  Kapoor  v.  Ramesh  Chander  and
Anr.[3]  which pertain to exercise of revisional power  of  the  High  Court
while dealing with propriety of framing of charge under Section 228  of  the
Code of Criminal Procedure.
10.    The central issue  that  arises  for  consideration  is  whether  the
appellant who has been discharged under Section 67 of the IT  Act  could  be
proceeded under Section 292 IPC.
11.   Be it noted, on the first date of hearing, Dr. A.M.  Singhvi,  learned
senior counsel appearing for the appellant urged  that  the  dispute  raised
require interpretation of various provisions of the IT Act and bearing  that
in mind, the Court thought it  appropriate  to  hear  the  learned  Attorney
General for the Union of India.  In the course of  hearing,  the  Court  was
assisted by Mr. Mukul Rohatgi,  learned  Attorney  General  for  India,  Mr.
Ranjit Kumar, learned  Solicitor  General  and  Mr.  R.K.  Rathore,  learned
counsel for the Union of India.
12.    It is not disputed that the appellant is the senior  manager  of  the
intermediary  and  the  managing  director  of  the  intermediary  has  been
discharged of all the offences as per the decision in Aneeta  Hada  (supra).
and further that singular charge that has been framed against the  appellant
is in respect of Section 292 IPC. It is submitted by Dr.  Singhvi  that  the
appellant could not have been proceeded under Section 292 IPC  after  having
been discharged under Section 67  of  the  IT  Act.   Mr.  Rohatgi,  learned
Attorney General assisting the Court submitted that Section  67  of  the  IT
Act is a special provision and it will override  Section  292  IPC.  He  has
made a distinction between the offences referable to the  internet  and  the
offences referable to print/conventional media or whatever is  expressed  in
Section 292 IPC.  Mr. D.S. Mahra, learned counsel appearing for the  NCT  of
Delhi, would contend that publishing  any  obscene  material  as  stipulated
under Section 67 of the IT Act cannot be confused or equated  with  sale  of
obscene material as given under Section 292 IPC, for the  two  offences  are
entirely different.  It is urged by him that an accused can be  charged  and
tried for an offence independently under Section 292  IPC  even  if  he  has
been discharged under Section 67 of the IT Act.  According to him, there  is
no bar in law to charge and try for the offence under Section 292 IPC  after
discharge from Section 67 of the IT  Act.   Learned  counsel  would  further
contend that the role of person in charge of the intermediary  is  extremely
vital as it pertains to sale of obscene material which is  punishable  under
Section 292 IPC and not under Section 67 of the IT Act.  It is put forth  by
the learned counsel that the plea advanced by the appellant is in the  realm
of technicalities and on that ground, the order  of  charge  should  not  be
interfered with.
13.    Dr.  Singhvi  has  taken  us  through  the  legislative  history   of
proscription of obscenity in India. He has referred  to  the  Obscene  Books
and Pictures Act, 1856.  The primary object of the said Act was  to  prevent
the sale or exposure of obscene books and picture. It prohibited singing  of
obscene songs, etc. to the annoyance of others.  Any person found  indulging
in the said activities was  liable  to  pay  a  fine  of  Rs.  100/-  or  to
imprisonment up to 3 years or both.  Be it  noted,  learned  senior  counsel
has also referred to the Obscene Publications Act, 1925.  The said  Act  has
been repealed.
14.   Section 292 IPC in its original shape read as follows:-
“292. Sale, etc., of obscene books, etc.—Whoever—

(a) sells, lets to hire, distributes, publicly exhibits  or  in  any  manner
puts into circulation, or for purposes of sale, hire,  distribution,  public
exhibition or circulation, makes, produces or  has  in  his  possession  any
obscene book, pamphlet, paper, drawing, painting, representation  or  figure
or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for any of  the  purposes
aforesaid, or knowing or having reason to believe that such object  will  be
sold, let to hire, distributed or publicly exhibited or in  any  manner  put
into circulation, or

(c) takes part in or receives profits from any business  in  the  course  of
which he knows or has reason to believe that any such  obscene  objects  are
for  any  of  the  purposes  aforesaid,  made,  produced,  purchased,  kept,
imported, exported, conveyed, publicly exhibited or in any manner  put  into
circulation, or

(d) advertises or makes known by any means whatsoever  that  any  person  is
engaged or is ready to engage in any act which  is  an  offence  under  this
section, or that any such obscene object can be  procured  from  or  through
any person, or

(e) offers or attempts to  do  any  act  which  is  an  offence  under  this
section,

shall be punished with imprisonment of either description for a  term  which
may extend to three months, or with fine, or with both.

Exception.—This section does  not  extend  to  any  book,  pamphlet,  paper,
writing, drawing or painting kept or used bona fide for  religious  purposes
or  any  representation   sculptured,   engraved,   painted   or   otherwise
represented on or in any temple, or on any car used for  the  conveyance  or
idols, or kept or used for any religious purpose.”

15.   The constitutional validity of  Section  292  IPC  was  challenged  in
Ranjit D. Udeshi v. State of Maharashtra[4].  Assailing  the  constitutional
validity,  it  was  urged  before  the  Constitution  Bench  that  the  said
provision imposes incompatible and unacceptable restrictions on the  freedom
of  speech  and  expression  guaranteed  under  Section  19(1)(a)   of   the
Constitution. The Constitution Bench opined as follows:-

“7.   No doubt this  article  guarantees  complete  freedom  of  speech  and
expression but it also makes an exception in favour of existing  laws  which
impose restrictions on the exercise of the right in the interests of  public
decency  or  morality.  The  section of  the  Penal  Code in   dispute   was
introduced by the Obscene Publications  Act  (7  of  1925)  to  give  effect
to Article 1 of the International' Convention  for  the  suppression  of  or
traffic in obscene publications signed by India in 1923 at Geneva.  It  does
not go beyond obscenity  which  falls  directly  within  the  words  "public
decency (1) (1868) L.R. 3 Q.B. 360.  and morality" of the second  clause  of
the article. The word, as the dictionaries tell us, denotes the  quality  of
being obscene which means offensive to modesty or decency; lewd, filthy  and
repulsive. It cannot be denied that it is an important interest  of  society
to  suppress  obscenity.  There  is,  of  course,  some  difference  between
obscenity and pornography in that  the  latter  denotes  writings,  pictures
etc. intended to arouse sexual desire while the former may include  writings
etc. not intended to do so but which have that tendency.  Both,  of  course,
offend against public decency and morals but pornography is obscenity  in  a
more  aggravated  form.  Mr.  Garg  seeks  to  limit  action  to  cases   of
intentional lewdness which he describes as "dirt for dirt's sake" and  which
has now received the appellation of hard- core pornography by which term  is
meant libidinous writings of  high  erotic  effect  unredeemed  by  anything
literary or artistic and intended  to   arouse, sexual feelings.


            x          x          x          x

9.    The former he thought so because it  dealt  with  excretory  functions
and the latter because it dealt -with sex repression. (See  Sex,  Literature
and Censorship pp. 26 201). Condemnation of obscenity depends as  much  upon
the mores of the people as upon the individual. It is always a  question  of
degree or as the lawyers are accustomed to say, of where the line is  to  be
drawn. It is, however, clear that obscenity by itself  has  extremely  "poor
value in the-propagation  of  ideas,  opinions  and  information  of  public
interest or profit." When  there  is  propagation  of  ideas,  opinions  and
information of public interest or profit, the approach to  the  problem  may
become different because then the interest of society may  tilt  the  scales
in favour of free speech and expression. It is thus that  books  on  medical
science with intimate illustrations  and  photographs,  though  in  a  sense
immodest, are not considered to be obscene but the  same  illustrations  and
photographs collected in book form without the medical text would  certainly
be considered to be  obscene.  Section  292, Indian  Penal  Code deals  with
obscenity in this sense and cannot thus be said to be  invalid  in  view  of
the second clause of Article 19.”  

16.   Eventually, the Court upheld the constitutional validity of  the  said
provision.  After  the  pronouncement  by  the   Constitution   Bench,   the
legislature amended Section 292 which presently reads thus:-

“292. Sale, etc., of obscene  books,  etc.—(1)  For  the  purposes  of  sub-
section  (2),   book,   pamphlet,   paper,   writing,   drawing,   painting,
representation, figure or any other object, shall be deemed  to  be  obscene
if it is lascivious or appeals to the prurient interest or  if  its  effect,
or (where it comprises two or more distinct items) the effect of any one  of
its items, is, if taken as a whole, such as to tend to deprave  and  corrupt
person who are likely, having  regard  to  all  relevant  circumstances,  to
read, see or hear the matter contained or embodied in it.

(2) Whoever—

(a) sells, lets to hire, distributes, publicly exhibits  or  in  any  manner
puts into circulation, or for purposes of sale, hire,  distribution,  public
exhibition or circulation, makes, produces or  has  in  his  possession  any
obscene book, pamphlet, paper, drawing, painting, representation  or  figure
or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for any of  the  purposes
aforesaid, or knowing or having reason to believe that such object  will  be
sold, let to hire, distributed or publicly exhibited or in  any  manner  put
into circulation, or

(c) takes part in or receives profits from any business  in  the  course  of
which he knows or has reason to believe that any such obscene  objects  are,
for  any  of  the  purposes  aforesaid,  made,  produced,  purchased,  kept,
imported, exported, conveyed, publicly exhibited or in any manner  put  into
circulation, or

(d) advertises or makes known by any means whatsoever  that  any  person  is
engaged or is ready to engage in any act which  is  an  offence  under  this
section, or that any such obscene object can be  procured  from  or  through
any person, or

(e) offers or attempts to  do  any  act  which  is  an  offence  under  this
section,

shall  be  punished  on  first  conviction  with  imprisonment   of   either
description for a term which may extend to two years, and  with  fine  which
may extend to two thousand  rupees,  and,  in  the  event  of  a  second  or
subsequent conviction, with imprisonment of either description  for  a  term
which may extend to five years, and also with fine which may extend to  five
thousand rupees.

Exception.—This section does not extend to—

(a) any book, pamphlet, paper, writing,  drawing,  painting,  representation
or figure—

(i) the publication of which is proved to be  justified  as  being  for  the
public good  on  the  ground  that  such  book,  pamphlet,  paper,  writing,
drawing, painting, representation or figure is in the interest  of  science,
literature, art or learning or other objects of general concern, or

(ii) which is kept or used bona fide for religious purposes;

(b)  any  representation  sculptured,   engraved,   painted   or   otherwise
represented on or in—

(i) any ancient monument within the meaning of  the  Ancient  Monuments  and
Archaeological Sites and Remains Act, 1958 (24 of 1958), or

(ii) any temple, or on any car used for the conveyance of idols, or kept  or
used for any religious purpose.”

17.   At the outset, we may clarify that  though  learned  counsel  for  the
appellant has commended us to certain authorities with  regard  to  role  of
the appellant, the concept of possession  and  how  the  possession  is  not
covered under Section 292 IPC, we are not disposed to enter  into  the  said
arenas. We shall only restrict  to  the  interpretative  aspect  as  already
stated.  To appreciate  the  said  facet,  it  is  essential  to  understand
certain provisions that find place in the IT  Act  and  how  the  Court  has
understood the same. That  apart,  it  is  really  to  be  seen  whether  an
activity emanating from electronic  form  which  may  be  obscene  would  be
punishable under Section 292 IPC or Section 67 of the IT Act or both or  any
other provision of the IT Act.
18.   On a perusal of material on record, it  is  beyond  dispute  that  the
alleged possession of material constitutes the electronic record as  defined
under Section 2(1)(t)  of  the  IT  Act.  The  dictionary  clause  reads  as
follows:-
“Section 2(1)(t). electronic record” means data, record or  data  generated,
image or sound stored, received or sent in an electronic form or micro  film
or computer generated micro fiche;”

      Thus, the offence in question relates to electronic record.
19.   In Shreya Singhal v. Union of India[5], the  Court  was  dealing  with
constitutional validity of Section 66-A of the  IT  Act  and  the  two-Judge
Bench declared the said provision as unconstitutional by stating thus:-
“85. These two cases illustrate how judicially trained minds  would  find  a
person guilty or not guilty depending upon the Judge’s  notion  of  what  is
“grossly offensive” or “menacing”. In Collins case, both the  Leicestershire
Justices and two Judges of the Queen’s Bench would  have  acquitted  Collins
whereas the House of Lords convicted him. Similarly, in the  Chambers  case,
the Crown Court would have convicted  Chambers  whereas  the  Queen’s  Bench
acquitted him.  If  judicially  trained  minds  can  come  to  diametrically
opposite  conclusions  on  the  same  set  of  facts  it  is  obvious   that
expressions such as “grossly offensive” or  “menacing”  are  so  vague  that
there is no manageable standard by which  a  person  can  be  said  to  have
committed an offence or not to have committed an offence.  Quite  obviously,
a prospective offender of Section  66-A  and  the  authorities  who  are  to
enforce Section 66-A have absolutely no  manageable  standard  by  which  to
book a person for an offence  under  Section  66-A.  This  being  the  case,
having regard also to the  two  English  precedents  cited  by  the  learned
Additional  Solicitor  General,  it  is   clear   that   Section   66-A   is
unconstitutionally vague.

86. Ultimately, applying the tests referred to in Chintaman Rao[6] and  V.G.
Row[7] case, referred to earlier in the judgment, it is clear  that  Section
66-A arbitrarily, excessively and disproportionately invades  the  right  of
free speech and upsets the balance between such  right  and  the  reasonable
restrictions that may be imposed on such right.”


20.   Thereafter the Court referred to Kameshwar Prasad  State  of  Bihar[8]
and Central Prison v. Ram Manohar Lohia[9]
 and came to hold as follows:-
 “94. These two  Constitution  Bench  decisions  bind  us  and  would  apply
directly  on  Section  66-A.  We,  therefore,  hold  that  the  section   is
unconstitutional  also  on  the  ground  that  it  takes  within  its  sweep
protected speech and speech  that  is  innocent  in  nature  and  is  liable
therefore to be used in such a way as to have  a  chilling  effect  on  free
speech and would, therefore, have  to  be  struck  down  on  the  ground  of
overbreadth.”

 21.  While dealing with obscenity, the Curt referred to  Ranjit  D.  Udeshi
(supra)  and other decisions  and opined thus:-
“48. This Court in Ranjit D. Udeshi v. State of Maharashtra (supra)  took  a
rather restrictive view of what would pass muster as not being obscene.  The
Court followed the test laid down in the old  English  judgment  in  Hicklin
case[10] which was whether the tendency of the matter charged as obscene  is
to  deprave  and  corrupt  those  whose  minds  are  open  to  such  immoral
influences and into whose hands a publication of this sort may  fall.  Great
strides have been made since this decision in the U.K.,  the  United  States
as well as in our country. Thus, in Directorate General  of  Doordarshan  v.
Anand Patwardhan[11] this Court noticed the law in  the  United  States  and
said that a material may be  regarded  as  obscene  if  the  average  person
applying contemporary community  standards  would  find  that  the  subject-
matter taken as a whole appeals to the prurient interest and that  taken  as
a  whole  it  otherwise  lacks  serious   literary,   artistic,   political,
educational or scientific value (see para 31).

49. In a recent judgment of this Court, Aveek Sarkar v. State  of  W.B.[12],
this Court referred to English, US and Canadian  judgments  and  moved  away
from the  Hicklin  (supra)  test  and  applied  the  contemporary  community
standards test.

50. What has been said with regard to public  order  and  incitement  to  an
offence equally applies here.  Section  66-A  cannot  possibly  be  said  to
create an offence which falls within the expression “decency” or  “morality”
in that what may be grossly offensive or annoying  under  the  section  need
not be obscene at all—in fact the  word  “obscene”  is  conspicuous  by  its
absence in Section 66-A.”


22.   In  Devidas  Ramachandra  Tuljapurkar  v.  State  of  Maharashtra  and
Ors[13] analyzing the said judgment another two-Judge Bench has opined  that
as far as test  of  obscenity  is  concerned,  the  prevalent  test  is  the
contemporary community standards test. It is apt to note here  that  in  the
said case the Court was dealing with the issue, what kind of test is  to  be
applied when personalities like  Mahatma  Gandhi  are  alluded.   The  Court
held:-

“142. When the name of Mahatma Gandhi  is  alluded  or  used  as  a  symbol,
speaking or using obscene words,  the  concept  of  “degree”  comes  in.  To
elaborate, the “contemporary community standards  test”  becomes  applicable
with more vigour, in a greater degree and in  an  accentuated  manner.  What
can otherwise pass of the contemporary community standards test for  use  of
the same language, it would not be so, if the  name  of  Mahatma  Gandhi  is
used as a symbol or allusion or surrealistic voice to put words or  to  show
him doing such acts which are obscene. While so concluding, we leave  it  to
the poet to put his defence at the trial explaining the manner in  which  he
has used the words and in what context. We only opine that view of the  High
Court pertaining to the framing of charge under Section 292  IPC  cannot  be
flawed.”


23.   Reference to Shreya Singhal (supra) is only to show that in  the  said
case the Court while dealing with constitutional validity  of  Section  66-A
of the IT Act noticed that the said provision  conspicuously  did  not  have
the word “obscene”.  It did not say anything else in that  regard.   In  the
case at hand, it is required to be seen in which of the  provision  or  both
an accused is required to be tried.  We have already reproduced Section  292
IPC in the present incarnation.  Section 67 of the  IT  Act  which  provides
for  punishment  for  publishing  or  transmitting   obscene   material   in
electronic form reads as follows:-
“67.   Punishment  for  publishing  or  transmitting  obscene  material   in
electronic form. – Whoever publishes or transmits or causes to be  published
or transmitted in the electronic form, any material which is  lascivious  or
appeals to the prurient interest or if its effect is  such  as  to  tend  to
deprave and corrupt persons who are likely, having regard  to  all  relevant
circumstances, to read, see or hear the matter contained or embodied in  it,
shall  be  punished  on  first  conviction  with  imprisonment   of   either
description for a term which may extend to three years and with  fine  which
may extend to five lakh rupees and in the  event  of  second  or  subsequent
conviction with imprisonment of either description  for  a  term  which  may
extend to five years and also  with  fine  which  may  extend  to  ten  lakh
rupees.”

24.   Section 67A stipulates punishment for publishing  or  transmitting  of
material  containing  sexually  explicit  act,  etc.,  in  electronic  form.
Section 67B provides  for  punishment  for  publishing  or  transmitting  of
material depicting children in sexually explicit act,  etc.,  in  electronic
form. It is as follows:-
“67B.  Punishment for  publishing  or  transmitting  of  material  depicting
children in seually explicit act, etc., in electronic form. – Whoever –

publishes or transmits or causes to be  published  or  transmitted  material
any electronic form which depicts children engaged in sexually explicit  act
or conduct; or

 creates text  or  digital  images,  collects,  seeks,  browses,  downloads,
advertises, promotes, exchanges or distributes material  in  any  electronic
form depicting children in obscene or indecent or sexually explicit  manner;
or


cultivates, entices or induces children to online relationship with  one  or
more children for and on sexually explicit act  or  in  a  manner  that  may
offend a reasonable adult on the computer resources; or


facilitates abusing children online; or

records in any electronic form own abuse or that  of  others  pertaining  to
sexually explicit act with children,

shall  be  punished  on  first  conviction  with  imprisonment   of   either
description for a term which may extend to five years and with a fine  which
may extend to ten lakh rupees and in  the  event  of  second  or  subsequent
conviction with imprisonment of either description  for  a  term  which  may
extend to seven years and also with  fine  which  may  extend  to  ten  lakh
rupees:

   Provided that provisions of section 67,  section  67A  and  this  section
does not extend to any book, pamphlet,  paper,  writing,  drawing,  painting
representation or figure in electronic form-

the publication of which is proved to be justified as being for  the  public
good on the  ground  that  such  book,  pamphlet,  paper,  writing  drawing,
painting  representation  or  figure  is  in  the   interest   of   science,
literature, art or learning or other objects of general concern; or

which is kept or used for bona fide heritage or religious purposes.

Explanation.-For the purpose of this section “children” means a  person  who
has not completed the age of 18 years.”

25.   Section 69 of the IT Act provides for power to  issue  directions  for
interception or monitoring or decryption  of  any  information  through  any
computer resource.  It also carries a penal  facet  inasmuch  as  it  states
that the subscriber or intermediary who fails to comply with the  directions
issued under sub-section (3) shall be punished with imprisonment for a  term
which may extend to seven years and shall also be liable to fine.
26.   We have referred to all these provisions of the IT  Act  only  to  lay
stress that the legislature has  deliberately  used  the  words  “electronic
form”.  Dr. Singhvi has brought to our notice Section 79 of the IT Act  that
occurs in Chapter XII dealing  with  intermediaries  not  to  be  liable  in
certain cases. Learned counsel has also relied on Shreya Singhal (supra)  as
to how the Court has dealt with the challenge to Section 79 of the  IT  Act.
 The Court has associated the said provision with exemption and Section  69A
and in that context, expressed that:-
“121. It  must  first  be  appreciated  that  Section  79  is  an  exemption
provision.  Being  an  exemption  provision,  it  is  closely   related   to
provisions which provide for offences including Section 69-A. We  have  seen
how under Section 69-A blocking can take place  only  by  a  reasoned  order
after complying with several procedural safeguards including  a  hearing  to
the originator and intermediary. We have also seen how there  are  only  two
ways in which a blocking order can be passed—one by the  Designated  Officer
after complying with the 2009 Rules and the other by the Designated  Officer
when  he  has  to  follow  an  order  passed  by  a  competent  court.   The
intermediary applying its own mind to whether information should  or  should
not be blocked is noticeably absent in  Section  69-A  read  with  the  2009
Rules.

122. Section 79(3)(b) has to be read down  to  mean  that  the  intermediary
upon receiving actual knowledge that a court order has  been  passed  asking
it to expeditiously remove or disable access to certain material  must  then
fail to expeditiously remove or disable access to  that  material.  This  is
for the reason that otherwise it would be very difficult for  intermediaries
like Google, Facebook, etc. to act when millions of requests  are  made  and
the intermediary is  then  to  judge  as  to  which  of  such  requests  are
legitimate and which are not. We have been informed that in other  countries
worldwide  this  view  has  gained  acceptance,  Argentina  being   in   the
forefront. Also, the Court order and/or the notification by the  appropriate
Government or its agency must strictly conform to the  subject-matters  laid
down in Article 19(2). Unlawful acts beyond what is  laid  down  in  Article
19(2) obviously cannot form any part of Section 79. With these two  caveats,
we refrain from striking down Section 79(3)(b).

123. The learned Additional Solicitor General  informed  us  that  it  is  a
common  practice  worldwide  for  intermediaries  to  have  user  agreements
containing what is stated in Rule 3(2). However, Rule 3(4) needs to be  read
down in the same manner as Section 79(3)(b). The knowledge spoken of in  the
said sub-rule must only be through the medium of a court order.  Subject  to
this, the Information Technology  (Intermediaries  Guidelines)  Rules,  2011
are valid.”

27.   We have referred to the aforesaid aspect as it has been argued by  Dr.
Singhvi that the appellant is protected under the said  provision,  even  if
the entire allegations are accepted.  According to him, once the  factum  of
electronic record is admitted, Section 79 of the  IT  Act  must  apply  ipso
facto and ipso jure.  Learned senior counsel has urged Section  79,  as  the
language would suggest and keeping in view the paradigm  of  internet  world
where service providers of  platforms  do  not  control  and  indeed  cannot
control the acts/omissions of primary, secondary and tertiary users of  such
internet platforms,  protects  the  intermediary  till  he  has  the  actual
knowledge.  He would contend that Act has created a  separate  and  distinct
category called ‘originator’ in terms of Section  2(1)(z)(a)  under  the  IT
Act to which the protection  under  Section  79  of  the  IT  Act  has  been
consciously not extended.    Relying  on  the  decision  in  Shreya  Singhal
(supra), he has urged that the horizon has been expanded and the  effect  of
Section 79 of the IT Act provides protection to  the  individual  since  the
provision has been  read  down  emphasizing  on  the  conception  of  actual
knowledge.  Relying on the said provision, it is further  canvassed  by  him
that Section 79 of the IT Act gets  automatically  attracted  to  electronic
forms  of  publication  and  transmission  by   intermediaries,   since   it
explicitly uses the non-obstante clauses and has  an  overriding  effect  on
any other law in force.  Thus, the emphasis  is  on  the  three  provisions,
namely, Sections 67, 79 and 81, and the three provisions, according  to  Dr.
Singhvi, constitute a holistic trinity.  In this regard,  we  may  reproduce
Section 81 of the IT Act, which is as follows:-

“81. Act to have overriding effect.- The provisions of this Act  shall  have
effect notwithstanding anything  inconsistent  therewith  contained  in  any
other law for the time being in force.





Provided that nothing contained in this Act shall restrict any  person  from
exercising any right conferred under the Copyright Act 1957 or  the  Patents
Act 1970.”


      The proviso has been inserted by Act 10 of 2009 w.e.f. 27.10.2009.
28.   Having noted the provisions, it has to be recapitulated  that  Section
67  clearly  stipulates  punishment  for  publishing,  transmitting  obscene
materials in electronic form.  The said provision read with Section 67A  and
67B is a complete code relating to the offences that are covered  under  the
IT Act.  Section 79, as has been interpreted,   is  an  exemption  provision
conferring protection to the individuals.  However, the said protection  has
been expanded in the dictum of Shreya Singhal (supra)  and  we  concur  with
the same. Section 81 also specifically provides that the provisions  of  the
Act  shall  have  effect  notwithstanding  anything  inconsistent  therewith
contained in any other law for the time  being  in  force.   All  provisions
will have their play and significance, if the alleged  offence  pertains  to
offence of electronic record.  It has to be borne in mind that IT Act  is  a
special enactment.  It has special  provisions.   Section  292  of  the  IPC
makes offence sale of obscene books, etc. but once the offence has  a  nexus
or connection with the  electronic  record  the  protection  and  effect  of
Section 79 cannot be ignored and negated.   We are inclined to think  so  as
it is a special provision for a specific purpose  and  the  Act  has  to  be
given effect to so as to make the  protection  effective  and  true  to  the
legislative intent. This is the mandate behind Section 81  of  the  IT  Act.
The additional protection granted by  the  IT  Act  would  apply.   In  this
regard, we may refer to Sarwan Singh  and  Anr.  v.  Kasturi  Lal[14].   The
Court was considering Section 39 of Slum Areas (Improvement  and  Clearance)
Act, 1956 which laid down that the provisions of the said Act and the  rules
made thereunder shall  have  effect  notwithstanding  anything  inconsistent
therewith contained in any other law.   The Delhi  Rent  Control  Act,  1958
also contained non-obstante  clauses.   Interpreting  the  same,  the  Court
held:-
“When two or more laws operate in the same field and each  contains  a  non-
obstante clause stating that its  provisions  will  override  those  of  any
other law, stimulating and incisive problems of interpretation arise.  Since
statutory  interpretation  has  no  conventional  protocol,  cases  of  such
conflict have to be decided in reference to the object and  purpose  of  the
laws under consideration. A piquant  situation,  like  the  one  before  us,
arose in Shri Ram Narain v. Simla Banking  &  Industrial  Co.  Ltd.[15]  the
competing statutes being the Banking Companies Act, 1949 as amended  by  Act
52 of 1953, and the Displaced Persons (Debts Adjustment) Act, 1951.  Section
45-A of the Banking Companies Act, which was introduced by the amending  Act
of 1953, and Section 3 of the Displaced Persons Act, 1951 contained  each  a
non-obstante clause, providing that certain  provisions  would  have  effect
“notwithstanding anything inconsistent therewith contained in any other  law
for the time being in force  ...”.  This  Court  resolved  the  conflict  by
considering the object and purpose of the two laws and giving precedence  to
the Banking Companies Act by observing:

“It is, therefore, desirable to determine the overriding effect  of  one  or
the other of the relevant provisions in these two Acts, in a given case,  on
much broader considerations of the purpose and  policy  underlying  the  two
Acts and the clear intendment conveyed  by  the  language  of  the  relevant
provisions therein” (p. 615)

As indicated by us, the special and specific  purpose  which  motivated  the
enactment of Section 14-A and Chapter III-A of the Delhi Rent Act  would  be
wholly frustrated if the provisions of  the  Slum  Clearance  Act  requiring
permission of the competent authority were to prevail over them.  Therefore,
the newly introduced provisions of the Delhi Rent Act must  hold  the  field
and be given full effect despite anything to the contrary contained  in  the
Slum Clearance Act.”

29.   In Talcher Municipality v.  Talcher  Regulated  Market  Committee[16],
the Court was dealing with the question whether the  Orissa  Municipal  Act,
1950  or  Orissa  Agricultural  Produce  Markets  Act,  1956  should  apply.
Section 4(4) of the 1956 Act  contained  a  non-obstante  clause.   In  that
context, the Court opined:-
“The Act, however, contains special provisions.  The  provision  of  Section
4(4) of the said Act  operates  notwithstanding  anything  to  the  contrary
contained in any other law for the time being in force.  The  provisions  of
the said Act, therefore, would prevail over the  provisions  of  the  Orissa
Municipal Act. The maxim “generalia specialibus non derogant”  would,  thus,
be applicable in this case.  (See  D.R.  Yadav  v.  R.K.  Singh[17],  Indian
Handicrafts Emporium v. Union of India[18] and M.P. Vidyut Karamchari  Sangh
v. M.P. Electricity Board[19].)”


30.   In Ram Narain (supra), the Court faced  a  situation  where  both  the
statutes, namely, Banking Companies Act,  1949  and  the  Displaced  Persons
(Debts Adjustment) Act, 1951 contained non-obstante clause.  The Court  gave
primacy to the Banking Companies Act.  To arrive  at  the  said  conclusion,
the Court evolved the following principle:-
 “7. … It is, therefore, desirable to determine  the  overriding  effect  of
one or the other of the relevant provisions in these two Acts,  in  a  given
case, on much broader considerations of the purpose  and  policy  underlying
the two Acts and the clear  intendment  conveyed  by  the  language  of  the
relevant provisions therein.”


31.   In Solidaire India Ltd. v.  Fairgrowth  Financial  Services  Ltd.[20],
this Court while dealing with two special statutes, namely,  Section  13  of
Special Court (Trial of Offences Relating  to  Transactions  in  Securities)
Act, 1992 and Section 32 of Sick Industrial Companies  (Special  Provisions)
Act, 1985, observed as follows:-
“Where there are two special statutes which  contain  non  obstante  clauses
the later statute must prevail. This is because at the time of enactment  of
the later statute, the Legislature was aware of the earlier legislation  and
its non  obstante  clause.  If  the  Legislature  still  confers  the  later
enactment with a non obstante clause it means that  the  Legislature  wanted
that enactment to prevail. If  the  Legislature  does  not  want  the  later
enactment to prevail then it could and would provide in the later  enactment
that the provisions of the earlier enactment continue to apply.”

32.   The aforesaid passage clearly shows that if legislative intendment  is
discernible that a latter  enactment  shall  prevail,  the  same  is  to  be
interpreted in accord with the said intention.  We have already referred  to
the scheme of the IT Act and how obscenity pertaining to  electronic  record
falls under the scheme of the Act.  We have also  referred  to  Sections  79
and 81 of the IT Act. Once the  special  provisions  having  the  overriding
effect do cover a criminal act and the offender, he gets out of the  net  of
the IPC and in this case,  Section  292.   It  is  apt  to  note  here  that
electronic forms of transmission is covered  by  the  IT  Act,  which  is  a
special law.  It is settled  position  in  law  that  a  special  law  shall
prevail  over  the  general  and  prior  laws.   When  the  Act  in  various
provisions deals with obscenity in electronic form, it  covers  the  offence
under Section 292 IPC.
33.   In Jeewan Kumar Raut v. CBI[21], in the context of Transplantation  of
Human Organs Act, 1994 (TOHO) treating it as a special law, the Court held:-

“22. TOHO being a special statute, Section 4 of the Code,  which  ordinarily
would be applicable for investigation  into  a  cognizable  offence  or  the
other  provisions,  may  not  be  applicable.   Section   4   provides   for
investigation, inquiry, trial, etc.  according  to  the  provisions  of  the
Code. Sub-section (2) of Section  4,  however,  specifically  provides  that
offences under any other law shall be  investigated,  inquired  into,  tried
and otherwise dealt with according to the same provisions,  but  subject  to
any enactment for the time being in force regulating the manner or place  of
investigating,  inquiring  into,  tried  or  otherwise  dealing  with   such
offences.

23. TOHO being a special  Act  and  the  matter  relating  to  dealing  with
offences thereunder having  been  regulated  by  reason  of  the  provisions
thereof, there cannot be any manner of doubt whatsoever that the same  shall
prevail over the provisions of the Code.”

And again:-
“27. The provisions of the Code, thus, for all  intent  and  purport,  would
apply only to an extent till conflict arises between the provisions  of  the
Code and TOHO and as soon as  the  area  of  conflict  reaches,  TOHO  shall
prevail over the Code. Ordinarily, thus, although in terms of the Code,  the
respondent upon completion of investigation and  upon  obtaining  remand  of
the accused from time to time, was required to file a police report, it  was
precluded from doing so by reason of the provisions contained in Section  22
of TOHO.”

34.   In view of the aforesaid analysis  and  the  authorities  referred  to
hereinabove, we are of the  considered  opinion  that  the  High  Court  has
fallen into error that though charge has not been made out under Section  67
of the IT Act, yet the appellant could be proceeded under Section 292 IPC.
35.   Consequently, the appeal is allowed, the orders  passed  by  the  High
Court and the trial court are set aside and the criminal prosecution  lodged
against the appellant stands quashed.
                                                                   ………………. J
                                                               (Dipak Misra)

                                                                  ….……………… J
                                                          (Praffula C. Pant)
New Delhi
December 14, 2016
-----------------------
[1]   [2] (2008) 13 SCC 703
[3]   [4] (2010) 2 SCC 398
[5]   [6] (2012) 9 SCC 460
[7]   [8] AIR 1965 SC 881
[9]   [10] (2015) 5 SCC 1
[11]  [12] Chintaman Rao v. State of M.P., AIR 1951 SC 118
[13]  [14] State of Madras v. V.G. Row, AIR 1952 SC 196
[15]  [16] 1962 Supp. (3) SCR 369 : AIR 1962 SC 1166
[17]  [18] AIR 1960 SC 633
[19]  [20] R v. Hicklin, (1868) LR 3 QB 360
[21]  [22] (2006) 8 SCC 433
[23]  [24] (2014) 4 SCC 257
[25]  [26] (2015) 6 SCC 1
[27]  [28]  (1977) 1 SCC 750
[29]  [30]  AIR 1956 SC 614
[31]  [32]  (2004) 6 SCC 178
[33]  [34]  (2003) 7 SCC 110
[35]  [36]  (2003) 7 SCC 589
[37]  [38]  (2004) 9 SCC 755
[39]  [40]  (2001) 3 SCC 71
[41]  [42]  (2009) 7 SCC 526


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