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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  

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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

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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

1 (2008) 13 SCC 703

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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

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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

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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.

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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.

2 (2010) 2 SCC 398 3 (2012) 9 SCC 460

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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

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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

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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

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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 Maharashtra4.

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

4 AIR 1965 SC 881

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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

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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

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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,

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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.”

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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;”

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Thus, the offence in question relates to electronic record.

19. In  Shreya Singhal v. Union of India5, 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.

5 (2015) 5 SCC 1

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86.  Ultimately,  applying  the  tests  referred  to  in Chintaman  Rao6 and  V.G.  Row7 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 Bihar8 and Central Prison v. Ram Manohar Lohia9

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 case10 which was whether the

6 Chintaman Rao v. State of M.P., AIR 1951 SC 118 7 State of Madras v. V.G. Row, AIR 1952 SC 196 8 1962 Supp. (3) SCR 369 : AIR 1962 SC 1166  9 AIR 1960 SC 633 10 R v. Hicklin, (1868) LR 3 QB 360

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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 Patwardhan11 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 Ors13 analyzing the said judgment another

11 (2006) 8 SCC 433 12 (2014) 4 SCC 257 13 (2015) 6 SCC 1

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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

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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

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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 –  

(a)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

(b) 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

(c) 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

(d)facilitates abusing children online; or

(e) 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

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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-

(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 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.

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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.

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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.

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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

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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

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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

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protection granted by the IT Act would apply.  In this regard,

we may refer to  Sarwan Singh and Anr. v. Kasturi Lal14.

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

14  (1977) 1 SCC 750 15  AIR 1956 SC 614

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“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

Committee16,  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

16  (2004) 6 SCC 178

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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. Singh17,  Indian Handicrafts Emporium v.  Union of India18 and M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board19.)”

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

17  (2003) 7 SCC 110 18  (2003) 7 SCC 589 19  (2004) 9 SCC 755

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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

20  (2001) 3 SCC 71

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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.  CBI21,  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

21  (2009) 7 SCC 526

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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

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criminal  prosecution  lodged  against  the  appellant  stands

quashed.  

………………. J (Dipak Misra)

….……………… J (Praffula C. Pant)

New Delhi December 14, 2016