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
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
