REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1328-1329  OF 2019 (ARISING OUT OF SLP (CRIMINAL) NOS. 9981-9982 OF 2017)

THE STATE OF UTTAR PRADESH .....APPELLANT(S)

VERSUS

AMAN MITTAL & ANR. .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NOS.1330-1331 OF 2019 (ARISING OUT OF SLP (CRIMINAL) NOS. 1912-1913 OF 2018)

CRIMINAL APPEAL NO. 1332  OF 2019 (ARISING OUT OF SLP (CRIMINAL) NO. 3321 OF 2018)

J U D G M E N T

HEMANT GUPTA, J.

Crl. Appeal Nos.   1328-1329    of 2019   (@SLP (Criminal) Nos.9981-9982 of 2017) AND

Crl. Appeal Nos. 1330-1331  of 2019   (@SLP (Criminal) Nos.1912-1913 of 2017)

1) Leave granted.

2) The order dated October 4, 2017 passed by the Lucknow Bench of

the High Court  of  Judicature at Allahabad is  the subject matter  of

challenge in these appeals.

1

3) An FIR No. 130 was lodged on April 28, 2017 with Police Station Cantt,

Lucknow for the offences punishable under Sections 265, 267, 420,

34, 120-B of the Indian Penal Code, 18601 and Sections 3/7 of the

Essential Commodities Act, 19552 in respect of short delivery of petrol

and diesel by 200-220 ml. on each sale of 5 liters.   

4) On April 27, 2017, the Special Task Force3 of the State Police took up

the investigation into the commission of offence viz. short delivery of

petroleum products i.e. high-speed diesel and motor spirit at various

retail outlets operating within the city of Lucknow.  The STF with the

aid of officers of the Department of Weight and Measures and the

District Administration raided the premises of the retail outlets.  The

team  found  that  15  nozzles  connected  to  four  machines  i.e.

dispensing units with seals intact were operative and functional.  The

testing was carried out in the presence of Apar Nagar Magistrate, two

Inspectors of Weights and Measures Department and the partners of

the  firm  M/s.  Shiv  Narain  &  Sons  and  its  Manager.   As  per  the

inspection memo recorded on April 27, 2017, out of 15 nozzles, 10

nozzles were used for sale of petrol and the remaining 5 nozzles were

used for sale of diesel.  13 nozzles were involved in malpractice of

short  delivery.   The  team  derived  5  liters  of  petrol  and  diesel

respectively in the testing work standard measurement kept at the

1  IPC 2      Act, 1955 3  STF

2

outlet but on calibration, it was found that the quantity of 200 ml.

was short.  For such short delivery, the FIR, as mentioned above, was

lodged.   

5) In the FIR, it is alleged that some electronic chip was fixed inside the

dispensing unit which was operated through a remote.  Three remote

controls  bearing Nos.  2,  3  and 4  were  recovered  and two remote

controls were recovered without any numbers.  The inspection team

also  verified  the  storage  of  stocks  available  as  on  date  in  the

underground tanks by using a dip rod.  On verification of actual stock,

the comparative record maintained by the dealer was found to be

inconsistent rather the stock available was found to be excessive and

was recorded accordingly. The dispensing machines were sealed by

the inspection  team and the  sale  was  immediately  stopped.   The

accused were arrested on April 28, 2017.  Later, on June 1, 2017, the

Investigating  Officer  along  with  seven  persons  including  the  City

Magistrate visited the retail outlet and with the help of technicians

hired from General Energy Management Systems Pvt. Ltd. opened the

dispensing machines.  The seals were found intact both at the initial

stage of inspection i.e. on April 27, 2017 and on June 1, 2017.   The

electronic chips fixed inside the 24 dispensing units were taken into

custody by the Investigating Officer.  Such electronic chips recovered

on June 1, 2017 are now with Forensic Science Laboratory, Lucknow

for its forensic report.  The Magistrate on an application made by the

3

Investigating  Officer  allowed  the  judicial  remand  of  accused  vide

order dated June 7, 2017 and also permitted the investigation under

Sections 467, 468, 471 IPC and Sections 12/30 of the Legal Metrology

Act, 20094.   

6) It is on the basis of investigations carried out, the charge-sheet dated

July 25, 2017 for the offences under Sections 265, 267, 420, 34, 120B

IPC and Sections 3 and 7 of the Act, 1955, Sections 467, 468, 471 IPC

and Sections 12/30 of the Weights and Measures Act, 1976 came to

be filed before the competent court.   The Magistrate did not  take

cognizance of offence under Sections 471 and 120B of IPC for want of

evidence  but  the  Magistrate  has  taken  cognizance  of  an  offence

under Section 30 of the Act.   

7) It is thereafter two applications were filed under Sections 167(2) and

190(1) of the Code of Criminal Procedure, 19735 on July 26, 2017 on

the ground that the prosecution has no material making out a case of

offences  mentioned  in  the  chargesheet,  therefore,  the  cognizance

may  not  be  taken.   The  learned  Magistrate  rejected  both  the

applications on July 27, 2017.  It is thereafter the petition was filed

under  Section  482 of  the  Code before  the  High  Court,  which  was

decided by an order impugned in the present appeal. The High Court

has passed a detailed order examining the following questions of law:

4  Act 5  Code

4

“(i)  Whether  in  view  of  the  promulgation  of  Legal Metrology Act, 2009, the offences relating to weights and measures particularly short delivery of petroleum products sold to the public at large through dispensing machines, are open to be registered and investigated by the police authorities in terms of the provisions of IPC and Code of Criminal Procedure or the provisions of IPC and Cr.P.C. for the said purpose would stand ousted/obliterated/eclipsed by virtue of Section 51 of Legal Metrology Act, 2009;

(ii)   Whether  the Legal  Metrology Act  and the Essential Commodities Act and the procedure envisaged thereunder has  an  overriding  effect  over  the  provisions  of  Code of Criminal Procedure insofar as the investigation/search and seizure in respect of the offences relating to weights and measures are concerned.

(iii)   Whether the investigation held by the investigating officer assuming as if the same was permissible, has been held in consonance with the relevant law applicable as on the date or not and if not, its effect;

(iv)  Whether the court below while taking cognizance of the offences has passed the orders in accordance with the well-settled principles of law and if not, its effect.  

(v)  Directions and directives necessary in the case.”

8) It  was  held  that  the  Code  is  applicable  so  long  as  a  different

procedure is not prescribed under the special law with respect to the

cognizable  or  non-cognizable  offences  but  application  of  the

provisions of IPC has to be understood within the broader scope of

special  law  in  the  light  of  exclusionary  provision  embodied

therein. Thus,  considering  Sections  3  and  51  of  the  Act,  the  High

Court held as under:

“From a conjoint reading of this provision with the other

5

provisions of the Act, the logical conclusion to serve the purpose of the Act, 2009 that can be deduced is that all other offences under the Legal Metrology Act, 2009 except the  offence  under  Section  26  are  non-cognizable  and compoundable when committed for the first time; whereas the  offence  under  Section  26  of  the  Act  is  a  non- cognizable offence triable as per the procedure prescribed under  the  Code  of  Criminal  Procedure  and  the  other offences when committed second time as well. Thus, the procedure  of  investigation,  inquiry  and  trial  under  the Cr.P.C. would accordingly apply inasmuch as, no procedure in relation thereto is prescribed under the Special Act.”  

9) It was further held that Section 26 of the Act overrides the provisions

of Sections 264 to 267 of IPC as Section 51 of the Act clearly excludes

the application of IPC and Section 153 of the Code insofar as it relates

with regard to weights and measures punishable under the special

Act.  The High Court held as under:

“The  violation  of  any  provision  of  the  Special  Act  or Section 26 once noticed against any offender,  as is the situation in the present case, it would not attract violation of  Section 264 to 267 IPC at  all  and the prosecution is bound to be guided by the relevant provisions under the Special  Act.  The  Special  Act  has  replaced  the  entire Chapter by defining the offences of  all  descriptions and classified  them  in  the  nature  of  non-cognizable compoundable offences, as such, the procedure deserves to  be  applied  accordingly  as  per  the  classification  of offences against other laws in the first schedule of Cr.P.C. insofar as criminal prosecution is concerned.”

10) The High Court ordered that the trial court has not taken cognizance

of  offence  under  Sections  34,  120B,  471 of  IPC  or  26  of  the  Act.

Therefore, there is no reason as to why the Court may not take into

account such materials for the purposes of taking cognizance of the

6

offences, in the light of the orders passed on July 7, 2017 and August

17, 2017.  The High Court held that Sections 467, 468, 471, 120-B

and 34 of IPC stand clearly attracted.  

11) In respect of third question, the High Court directed the District Judge,

Lucknow to ascertain the quantitative and qualitative figures of the

residual stock lying in the underground tanks and allow the stock to

be  delivered  to  the  oil  company  for  custody  after  due  calibration

through the dispensing pumps installed.  The High Court issued the

following directions:

“(i)  The  Investigating  Officer  assigned  the  duty  of investigation  in  case  crime  no.  130/2017  shall  stand changed forthwith and the Superintendent of Police (City), North, Lucknow at present is hereby directed to take over the further investigation and cooperate with the District Judge, Lucknow to deliver the custody of petrol/diesel in the  seized  underground  tanks  to  the  respective  oil company after  due calibration of  the same through the dispensing  units.  The  District  Judge/Investigating  officer shall collect the samples for quality and quantity checks both in the calibrated containers  to  be provided by the department  of  Weights  and  Measures  and  oil  company immediately on demand. The samples shall  be collected as  per  the  procedure  of  sample  collection  provided  for quality/quantity  check  specified  in  the  statutory  Order, 2005;   

(ii)  The  District  Judge,  Lucknow  jointly  with  the investigating officer authorised hereinabove shall  submit the calibration  report  of  the  residual  stock  to  the  court concerned not later than a period of 15 days from the date a  copy  of  this  order  is  communicated  to  them  by  the Senior Registrar of this Court;

(iii)  The  investigating  officer  appointed  hereinabove,  in association with the District Judge, Lucknow, shall jointly

7

forward  the  report  of  calibration  of  the  stock  in  the respective tanks by duly comparing the figures mentioned in the seizure memo/F.I.R. and resultant excessive figures be mentioned in clear figures taking aid of the totaliser reading  in  each  dispensing  unit  alongwith  their photographic evidence at the time of start/finish;   

(iv)  For  the  purposes  of  sample  reports,  the  District Judge/investigating  officer  are  jointly  authorised  to requisition  the  quality  check  from  any  of  the  nearest defence laboratories notified in the statutory Order, 2005 and quantity check from any of the centres mentioned in para-22  of  the  counter  affidavit  sworn  by  the  Chief Secretary, Government of U.P. The reports shall be called for expeditiously and may be requested to be supplied not later than a period of 6 weeks from the date of submission of the samples. The reports so obtained may be filed in the  respective  courts  by  the  investigating  officer  after endorsement by the District Judge;   

(v)  The  seized  dispensing  machines  be  released  to  the owner as soon as the residual stock in the underground tanks is  handed over  to  the oil  company concerned for which the oil company shall provide all the transport and custodial  facility  besides  operational  guidance  to  the investigating  officer  and  learned  District  Judge,  without asking for any remuneration;   

(vi)  The  investigating  officer  shall  submit  the supplementary report in terms of the observations made in this judgement not later than a period of two months, by  taking  over  all  the  materials  and  record  from  the previous  investigating  officer  in  the  form  in  which discovery and seizure were made; and

(vii)  The  oil  companies  henceforth  shall  make  use  of collapsible pulsers essential in the dispensing machines in order  to  prevent  malpractices.  Thus,  the  State Government is  directed to  implement the installation of such a device in consultation with the oil companies within a planned time framework of not later than four months.”

12) The State as well  as one of the accused are in appeal before this

8

Court.  At the outset, learned counsel for the parties stated that the

directions  issued  by  the  High  Court  cannot  be  sustained  in  law,

therefore,  they have no  objection  if  such directions  are  set  aside.

Such directions are liable to be set aside in view of the fact that the

High  Court,  while  exercising  jurisdiction  under  Section  482  of  the

Code, cannot interfere in the manner of investigation, in terms of the

Judgment of this Court in M. C. Abraham and Another v. State of

Maharashtra and Others6 wherein it was held as under: -

“13. This Court held in the case of J.A.C. Saldanha [(1980) 1 SCC 554: 1980 SCC (Cri) 272] that there is a clear-cut and well-demarcated sphere of activity in the field of crime detection  and  crime  punishment.  Investigation  of  an offence is the field exclusively reserved by the executive through the police department, the superintendence over which vests in the State Government. It  is the bounden duty  of  the  executive  to  investigate,  if  an  offence  is alleged,  and  bring  the  offender  to  book.  Once  it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the court requesting the court to take cognizance of the offence under Section 190 of the Code of Criminal Procedure, its duty comes to an end. On cognizance of the offence being taken by the court,  the police function of investigation comes to an end subject to the  provision  contained  in  Section  173(8),  then commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so,  whether by the person or persons charged with the crime. In the circumstances,  the judgment and order of the High Court was set aside by this Court.”

13) Therefore,  the  directions  issued  including  in  respect  of  change  of

Investigating Officer and that the District Judge to be associated with

6  (2003) 2 SCC 649

9

various action, falling exclusively in the domain of the Investigating

Agency are patently beyond the scope of the petition under Section

482 of the Code and are, therefore, liable to be set aside.

14) Learned counsel for the State vehemently argued that the Act does

not  exclude the  offences  under  IPC.   It  is  contended that  the  Act

provides for the offences and penalties but reading of Sections 3 and

51 of the Act does not exclude the offences under the IPC.  The Act

will  override  only  those  offences  which  are  inconsistent  with  the

offences under IPC, except to the extent specified in the Act.

15) Learned counsel  for the State relied upon an order passed by this

Court in State of Maharashtra v.  Sayyed Hassan7 wherein, while

interpreting the provisions of Food and Safety Standards Act, 2006, it

was held that the provisions of the said Act is not the only provision

that  can  be  resorted  to,  the  prosecution  can  be  lodged  for  the

offences under IPC as well.  Learned counsel for the State also relied

upon an order passed by this Court in Sangeetaben Mahendrabhai

Patel  v.  State  of  Gujarat  &  Anr.8 wherein,  for  a  dishonour  of

cheque, the prosecution for an offence under Section 420 IPC was

found to be maintainable even after the prosecution under Section

138 of the Negotiable Instruments Act, 18819 is lodged. It was held

that the mens rea i.e. fraudulent or dishonest intention at the time of

7  Criminal Appeal No. 1195 of 2018 decided on September 20, 2018 8  (2012) 7 SCC 621 9  NI Act

10

issuance of cheque is not required to be proved in proceeding of an

offence under Section 138 of the NI Act, whereas in the case under

IPC, the issue of  mens rea is relevant. It was held that the offences

under Section 420 of IPC and Section 138 of NI Act are different, may

on same facts.

16) On the other hand, Mr. Mukul Rohatgi, learned senior counsel for the

accused argued that the Act is  a complete Code providing for  the

standards  of  the  weights  and measures,  the  manner  in  which  the

same are required to be tested and also the offences for which the

action  can  be  taken.   Since  the  Act  is  a  special  statute  having

overriding effect, therefore, the accused cannot be charged for the

offences under IPC.  Reliance is placed upon judgment of this Court in

Sharat Babu Digumarti  v.  Government (NCT of Delhi)10 as also

the Division Bench judgment of Bombay High Court in Gagan Harsh

Sharma & Anr.  v.  The State of Maharashtra & Anr.11 whereby,

considering the provisions of the Information Technology Act, 200012,

it was held that the offence under IPC cannot be lodged.  It is pointed

out that special leave petitions filed against the said judgment were

dismissed by this Court on December 7, 2018.  

17) In this background, the arguments raised by learned counsel for the

parties need to be examined but before we examine the arguments,

10  (2017) 2 SCC 18 11  Criminal Writ Petition No. 4361 of 2018 decided on October 26, 2018 12  IT Act

11

certain provisions from the applicable  statutes  may be reproduced

hereunder:

“THE LEGAL METROLOGY ACT, 2009

2(g).   "Legal  Metrology"  means  that  part  of  metrology which  treats  units  of  weighment  and  measurement, methods  of  weighment and measurement and weighing and measuring instruments, in relation to the mandatory technical and legal requirements which have the object of ensuring  public  guarantee  from  the  point  of  view  of security  and  accuracy  of  the  weighments  and measurements;

xx xx xx

3.  The  provisions  of  this  Act  shall  have  effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.

xx xx xx

26.  Whoever  tampers  with,  or  alters  in  any  way,  any reference  standard,  secondary  standard  or  working standard or increases or decreases or alters any weight or measure with a view to deceiving any person or knowing or having reason to believe that any person is likely to be deceived thereby, except where such alteration is made for  the  correction  of  any  error  noticed  therein  on verification, shall be punished with fine which may extend to  fifty  thousand  rupees  and  for  the  second  and subsequent offence with imprisonment for a term which shall not be less than six months but which may extend to one year or with fine or with both.

xx xx xx

30.  Penalty  for  transactions  in  contravening  of standard weight or measure. – Whoever-

(a) in selling any article or thing by weight,  measure or number,  delivers  or  causes  to  be  delivered  to  the

12

purchaser any quantity or number of that article or thing less than the quantity or number contracted for or paid for; or  

(b)  in  rendering  any  service  by  weight,  measure  or number,  renders  that  service  less  than  the  service contracted for or paid for; or  

(c) in buying any article or thing by weight, measure or number,  fraudulently receives,  or causes to be received any quantity or number of that article or thing in excess of the quantity or number contracted for or paid for; or   (d)  in  obtaining  any  service  by  weight,  measure  or number,  obtains  that  service  in  excess  of  the  service contracted  for  or  paid  for,  shall  be  punished  with  fine which may extend to ten thousand rupees,  and; for the second or  subsequent  offence,  with  imprisonment  for  a term which may extend to one year, or with fine, or with both.

xx xx xx 51.  The provisions of the Indian Penal Code and section 153 of the Code of Criminal Procedure, 1973 in so far as such provisions relate to offences with regard to weight or measure,  shall  not  apply  to  any  offence  which  is punishable under this Act.”

“THE CODE OF CRIMINAL PROCEDURE, 1973

153.  Inspection of weights and measures.-(1) Any officer in charge of a police station may, without a warrant, enter any place within the limits of such station for the purpose of inspecting or searching for any weights or measures or instruments for weighing, used or kept therein, whenever he has reason to believe that there are in such place any weights, measures or instruments for weighing which are false.

(2) If  he  finds  in  such  place  any  weights,  measures  or instruments for weighing which are false, he may seize the same, and shall forthwith give information of such seizure to a Magistrate having jurisdiction.”

13

“THE INDIAN PENAL CODE, 1860

265.   Fraudulent  use  of  false  weight  or  measure.— Whoever  fraudulently  uses  any  false  weight  or  false measure of length or capacity,  or  fraudulently uses any weight or any measure of length or capacity as a different weight or measure from what it is, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

xx xx xx

267.  Making or selling false weight or measure.—Whoever makes, sells or disposes of any instrument for weighing, or any weight, or any measure of length or capacity which he knows to be false, in order that the same may be used as true, or knowing that the same is likely to be used as true, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

18) We do not find any merit in the argument of Mr. Mukul Rohatgi that

the Act is a complete Code which contains the provisions of offences

and penalties under the said Act, therefore, for any violation of the

provisions of the Act, the prosecution can be lodged only under the

Act and not for the offences even if disclosed under IPC.

19) In  Sharat  Babu Digumarti,  an  FIR  was  lodged  for  the  offences

under Sections 292 and 294 of IPC and Section 67 of IT Act.  This

Court struck down the offences under Sections 292 and 294 of IPC in

view of the provisions of Section 67 of the IT Act.

20) The question examined was as to 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

14

provision of the IT Act.  This Court held that  Section 292 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 in view of special provision

for a specific purpose. The IT Act has to be given effect to so as to

make the protection effective and true to the legislative intent. The

Court held as under:

“31.   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 Sections 67-A and 67-B 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 [Shreya Singhal v. Union of India, (2015) 5 SCC 1 : (2015) 2 SCC (Cri) 449] and we concur with the same.

32.  Section 81 of the IT Act 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 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.”

21) The Bombay High Court in  Gagan Harsh Sharma has found that

15

even a dishonest and fraudulent act falls within the scope of Section

66 of the IT Act and that the IT Act has been given overriding effect

notwithstanding  anything  inconsistent  therewith,  therefore,  an

offender gets out of  net of  IPC.  It  was held that IPC is  a general

statute  whereas  IT  Act  is  a  special  statute  and,  therefore,  special

enactment would prevail.  The Bombay High Court held as under:

“11.  Reading of the said judgment, makes is clear that the Hon'ble  Apex  Court  had  considered  the  effect  of  the overriding  provisions  contained  in  the  Information Technology Act and has observed that all the provisions in the  enactment  are  of  significance  particularly  if  the alleged  offences  pertains  to  electronic  record.  By observing that the Information Technology Act is a special enactment  and it  contain  special  provision,  the  Hon'ble Apex Court has also considered the effect of Section 79 contained  in  the  Information  Technology  Act  which  is enacted for a specific purpose and has observed that the mandate behind Section 81 of the Information Technology Act needs to be understood in its proper perspective. It referred to the earlier  precedents on the point where a special statute is pitted against a General enactment and thereafter has concluded by making reference Section 79 and  81  that  once  the  special  provisions  are  accorded overriding effect to cover a criminal Act, the offender gets out of the net of the Indian Penal Code and in the case in hand of Section 292.

*** *** ***

21.  Keeping the aforesaid authoritative pronouncements in mind, if the scheme of the Information Technology Act will have to be examined and given effect too. The said Act which is a special enactment so as to give fillip to the growth  of  electronic  based transactions,  and  to  provide legal  recognition  for  E-commerce  and,  to  facilitate  E- Governance  and  to  Ensure  Security  Practice  and Procedures  in  the  context  of  the  use  of  Information Technology Worldwide. The said enactment contains a full

16

fledge mechanism for  penalising  certain  acts  which  are committed without permission of the owner or any other persons who is in charge of a computer, computer system, or computer network and those acts are enumerated in Section 43. The said enactment also makes certain acts punishable and Chapter-XI of the Information Technology Act 2000 enumerates such acts. The same acts which are enumerated in Section 43 of the enactment which would invite penalty and compensation for accessing or securing any  information  as  contemplated  in  Section  43,  would amount  to  an  offence  under  Section  66  if  any  person, dishonestly,  fraudulently commits  such an act.  The said Section has an explanation appended to it  to the effect that the word “dishonestly” and “fraudulently” used in the said Section will be assigned the same meaning as under the Indian Penal  Code.  In  such circumstances when the Information Technology Act,  2000 specifically provides a mechanism  for  dealing  with  an  act  covered  in  Section 43(a) and (j):—

“Section 43(a) Accesses or secures access to such computer, computer system or computer network (or computer resource);

43(j) Steel, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer  source  code  used  for  a  computer resource with an intention to cause damage.”

and if this is done with a fraudulent or dishonest intention, it becomes an offence under Section 66 of the Information Technology  Act.  Since,  the  Information  Technology  Act deals with the use of means of electronic communication and has evolved a complete mechanism in itself to deal with the offences in the use of electronic transactions, and in the backdrop of the specific facts of the case in hand, Section  66  would  be  attracted  and  in  view  of  the mechanism contained in the said section, the invocation of the  provisions  of  the  Indian  Penal  Code  is  highly unwarranted. This view has already been authored by their lordships in case of Sharat Babu Digumarti (Supra).”

22) It may be noticed that Bombay High Court considered the judgment

17

of this Court in Sayyed Hassan wherein this Court has held that an

offence under Section 188 of IPC is wider in scope and did not cover

only breach of law but is attracted in cases where the act complained

of causes or tends to cause danger to human life, health or safety as

well.  The Court held as under:

“24.  The aforesaid judgment of the Hon'ble Apex Court is therefore clearly distinguishable on facts but even the said judgment of the Hon'ble Apex Court reiterates the settled position  of  law  that  where  an  act  or  an  omission constitutes  for  an  offence  under  two  enactments  the offender may be punished under either or both enactment but  was  not  liable  to  be  punished  twice  for  the  same offence. It is always possible that the same set of facts can constitute offence under two different laws but a person cannot  be punished twice  for  the  said  act  which would constitute an offence.”

23) The  special  leave  petition  against  the  said  order  was  dismissed

without any reasoned order but with the order “The Special Leave

Petitions are Dismissed”.   

24) Though, the Special Leave Petition against the order of the Bombay

High Court was dismissed but in view of three Judge Bench judgment

in  Khoday  Distilleries  Ltd.  &  Ors.  v.  Sri  Mahadeshwara

Sahakara Sakkare Karkhane Ltd.13, the dismissal of special leave

petition does not amount to merger of the order of the High Court

with the order passed in the Special Leave Petition.  This Court held

as under:

13  (2019) 4 SCC 376

18

“20.   The  Court  thereafter  analysed  number  of  cases where orders  of  different nature were passed and dealt with these judgments by classifying them in the following categories:

(i)   Dismissal  at  the  stage  of  special  leave  petition  — without reasons — no res judicata, no merger. [Proposition based  on  judgments  in Workmen v. Cochin  Port  Trust, (1978)  3  SCC  119; Western  India  Match  Co. Ltd. v. Industrial  Tribunal,  AIR  1958  Mad  398; Indian  Oil Corpn.  Ltd. v. State  of  Bihar,  (1986)  4  SCC  146; Rup Diamonds v. Union of  India,  (1989) 2 SCC 356; Wilson v. Colchester  Justices,  (1985)  2  All  ER  97  (HL); Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187; Yogendra Narayan Chowdhury v. Union of India, (1996)  7  SCC  1; V.M.  Salgaocar  &  Bros.  (P)  Ltd. v. CIT, (2000)  5  SCC  373; Sree  Narayana  Dharmasanghom Trust v. Swami Prakasananda, (1997) 6 SCC 78 and State of  Maharashtra v. Prabhakar  Bhikaji  Ingle,  (1996)  3  SCC 463.

(ii)  Dismissal of the special leave petition by speaking or reasoned order — no merger,  but  rule of  discipline and Article  141  attracted.  [Penu  Balakrishna  Iyer v. Ariya  M. Ramaswami  Iyer,  AIR  1965  SC  195; Abbai  Maligai Partnership  Firm v. K.  Santhakumaran,  (1998)  7  SCC 386; Shankar  Ramchandra  Abhyankar v. Krishnaji Dattatreya  Bapat,  (1969)  2  SCC  74; Sushil  Kumar Sen v. State  of  Bihar,  (1975)  1  SCC  774; Gopabandhu Biswal v. Krishna  Chandra  Mohanty,  (1998)  4  SCC 447; Junior Telecom Officers Forum v. Union of India, 1993 Supp (4) SCC 693  and Supreme Court Employees' Welfare Assn. Case, (1989) 4 SCC 187.

(iii)  Leave granted — dismissal without reasons — merger results. [Thungabhadra Industries Ltd. v. Govt.  of A.P., AIR 1964 SC 1372].”

“26.  From a cumulative reading of the various judgments, we sum up the legal position as under:

26.1. xx xx xx

26.2.   We  reiterate  the  conclusions  relevant  for  these

19

cases  as  under:  (Kunhayammed  case [Kunhayammed v. State of Kerala, (2000) 6 SCC 359], SCC p. 384)

“(iv) An order refusing special leave to appeal may be a non-speaking order  or  a  speaking one.  In  either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.”

25) The  Bombay High Court  in  Gagan Harsh Sharma has found that

even a dishonest and fraudulent act falls within the scope of Section

66  of  IT  Act.   We  are  not  called  upon  in  the  present  appeals  to

examine whether an accused can be tried for an offence under IPC in

view of Section 66 of IT Act.  Such question can be raised and decided

in an appropriate case.

26) In Sayyed Hassan, the Court held that Section 55 of Food and Safety

Standards Act, 2006 being a specific provision made in the special

enactment but still an offence under Section 188 of IPC is made out.

The Court held as under:

“8.  There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments,  the  offender  may  be  prosecuted  and punished under either or both enactments but shall not be liable  to  be  punished  twice  for  the  same  offence  [T.S. Baliah v. T.S.Rengachari – (1969) 3 SCR 65]. The same set of  facts,  in  conceivable  cases,  can  constitute  offences under  two  different  laws.  An  act  or  an  omission  can amount to and constitute an offence under the IPC and at the same time, an offence under any other law [State of Bihar  v.  Murad Ali  Khan –  (1988) 4  SCC 655]. The High

20

Court  ought  to  have  taken  note  of  Section  26  of  the General Clauses Act, 1897 which reads as follows:

“Provisions as to offences punishable under two  or  more  enactments  - Where  an  act  or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either  or  any of those  enactments,  but  shall  not  be  liable  to  be punished twice for the same offence.”

27) However,  the  question  as  to  whether  the  offences  under  Sections

188,  272,  273  and  328  IPC  have  been  made  out  against  the

respondents in the facts of that case, the matter was remitted back to

the High Court to examine the contentions of respective parties.

28) The Sharat Babu Digumarti is a judgment dealing with obscenity in

the  electronic  form.   This  Court  has  held  that  IT  Act  is  a  special

enactment.   Since  the  offence  has  nexus  or  connection  with  the

electronic record the protection and effect of Section 79 cannot be

ignored and negated.  Section 292 IPC makes sale of obscene books

as an offence which cannot be made out in view of special provision

made in the IT Act.  The said judgment is, that an offence pertaining

to  electronic  record  falls  within  Section  67 of  the IT  Act,  whereas,

Section  292 IPC  deals  with  an  offence of  obscenity  in  the  printed

format, therefore, two offences operate in different field.   

29) In  Sangeetaben  Mahendrabhai  Patel,  a  subsequent  First

Information Report under Sections 406, 420 read with 114 of IPC was

21

challenged on the ground that the accused has been tried earlier for

an offence under Section 138 of the NI Act and that accused cannot

be charged for the offence of criminal breach of trust, cheating and

abetment  pertaining  to  the  cheque  for  which  proceedings  were

initiated under Section 138 of the NI Act. In the said case, the Court

held that there may be overlapping of facts in both the cases but the

ingredients  of  the  offences  are  entirely  different.   Thus,  the

subsequent case is not barred by any of the provisions of the NI Act.

The Court held as under:

“37.  Admittedly, the appellant had been tried earlier for the offences  punishable  under  the provisions of  Section 138 of the NI Act and the case is sub judice before the High  Court.  In  the  instant  case,  he  is  involved  under Sections  406/420  read  with  Section  114  IPC.  In  the prosecution under Section 138 of the NI Act, the mens rea i.e.  fraudulent  or  dishonest  intention  at  the  time  of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea  may  be  relevant.  The  offence  punishable  under Section 420 IPC is a serious one as the sentence of 7 years can be imposed.

38.   In  the  case  under  the  NI  Act,  there  is  a  legal presumption  that  the  cheque  had  been  issued  for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under the NI Act, if a fine is imposed, it is to be adjusted  to  meet  the  legally  enforceable  liability.  There cannot be such a requirement in the offences under IPC. The case under the NI Act can only be initiated by filing a complaint. However, in a case under IPC such a condition is not necessary.

39.  There may be some overlapping of facts in both the cases  but  the  ingredients  of  the  offences  are  entirely

22

different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.”

30) This  Court  in  Sangeetaben Mahendrabhai Patel has  upheld the

prosecution  for  an  offence  under  Section  420  IPC  even  when  the

prosecution under Section 138 of NI Act was lodged earlier.  This Court

has held that for an offence under Section 420 IPC,  mens rea is an

essential ingredient for an offence under Section 138, the factum of

dishonour of cheque alone discloses an offence.  Similarly, in Sayyed

Hassan,  this Court has held that the provision of Food and Safety

Standards Act, 2006 is not the only provision that can be resorted to

for  lodging  a  prosecution.   The prosecution  can be lodged for  the

offences under IPC as well.  

31) Section  51  of  the  Act  provides  that  the  provisions  of  IPC  and  of

Section 153 of the Code insofar as such provisions relate to offences

with  regard  to  weight  and  measures  only  shall  not  apply  to  any

offence which is punishable under the Act.  Section 153 of the Code

permits an officer in charge of police station to enter any place for the

purpose  of  inspecting  or  searching  any  weights  or  measures  or

instruments for weighing, used or kept therein.  Section 153 of the

Code has been made inapplicable under the Act as power of search

and seizure is vested with the designated authorities under the Act.

Therefore, the entire Code is inapplicable in respect of the prosecution

under the Act that the police cannot enter any place for the purpose

23

of inspecting or searching for any weights or measures.  

32) The question  required to  be  examined is  whether  all  the offences

under IPC are excluded in view of Section 3 of the Act or only the

offences relating to the weights and measures as are contained in

Chapter XIII IPC alone stand excluded in view of Section 51 of the Act.

33) It  cannot be disputed that the Act is a special Act vis-à-vis IPC.  In

Macquarie Bank Limited v. Shilpi Cable Technologies Limited14,

this Court adopted a doctrine of harmonious construction to hold that

there was clear disharmony between the two parliamentary statutes

which cannot be resolved by harmonious interpretation.  This Court

held as under:

“44.   Similarly,  in CTO v. Binani  Cements Ltd. [CTO v. Binani Cements Ltd., (2014) 8 SCC 319] , the rule of  construction of two parliamentary statutes being harmoniously  construed was  laid  down as  follows:  (SCC pp. 332-33, para 35)

“35.  Generally,  the  principle  has  found  vast application in cases of there being two statutes: general  or  specific  with  the  latter  treating  the common  subject-matter  more  specifically  or minutely than the former. Corpus Juris Secundum, 82  C.J.S.  Statutes  §  482  states  that  when construing  a  general  and  a  specific  statute pertaining  to  the  same  topic,  it  is  necessary  to consider  the  statutes  as  consistent  with  one another  and  such  statutes  therefore  should  be harmonised,  if  possible,  with  the  objective  of giving effect to a consistent legislative policy. On the  other  hand,  where  a  general  statute  and  a specific  statute  relating  to  the  same  subject- matter cannot be reconciled, the special or specific

14  (2018) 2 SCC 674

24

statute ordinarily will control. The provision more specifically directed to the matter at issue prevails as an exception to or qualification of the provision which is more general in nature, provided that the specific  or  special  statute  clearly  includes  the matter  in  controversy  (Edmond v. United States [Edmond v. United States, 1997 SCC OnLine US  SC  45  :  137  L  Ed  2d  917  :  520  US  651 (1997)], Warden v. Marrero [Warden v. Marrero, 1974 SCC OnLine US SC 136 : 41 L Ed 2d 383 : 417 US 653 (1974)] ).”

xx xx xx

47.  Similarly, in R.S. Raghunath v. State of Karnataka [R.S. Raghunath v. State of Karnataka, (1992) 1 SCC 335 : 1992 SCC (L&S)  286]  ,  the non obstante  clause contained in Rule  3(2)  of  the  Karnataka  Civil  Services  (General Recruitment)  Rules,  1977  was  held  not  to  override  the Karnataka  General  Service  (Motor  Vehicles  Branch) (Recruitment) Rules, 1976. It was held: (SCC p. 348, para 13)

“13.  As  already  noted,  there  should  be  a  clear inconsistency  between  the  two  enactments  before giving an overriding effect to the non obstante clause but  when the scope of  the provisions of  an earlier enactment is clear the same cannot be cut down by resort to non obstante clause. In the instant case, we have noticed that even the General  Rules of which Rule  3(2)  forms  a  part  provide  for  promotion  by selection. As a matter of fact Rules 1(3)(a), 3(1) and 4 also  provide for  the enforceability  of  the Special Rules.  The very Rule 3 of  the General  Rules which provides for recruitment also provides for promotion by selection and further lays down that the methods of  recruitment  shall  be  as  specified  in  the  Special Rules, if  any. In this background if  we examine the General  Rules  it  becomes  clear  that  the  object  of these Rules only is to provide broadly for recruitment to  services  of  all  the  departments  and  they  are framed  generally  to  cover  situations  that  are  not covered  by  the  Special  Rules  of  any  particular department.  In  such  a  situation  both  the  Rules

25

including  Rules  1(3)(a),  3(1)  and  4  of  the  General Rules should be read together. If so read it becomes plain  that  there  is  no  inconsistency  and  that amendment  by  inserting  Rule  3(2)  is  only  an amendment to the General  Rules and it  cannot  be interpreted as to  supersede the Special  Rules.  The amendment also must be read as being subject to Rules  1(3)(a),  3(1)  and  4(2)  of  the  General  Rules themselves.  The  amendment  cannot  be  read  as abrogating  all  other  Special  Rules  in  respect  of  all departments.  In  a  given  case  where  there  are  no Special Rules then naturally the General Rules would be applicable. Just because there is a non obstante clause, in Rule 3(2) it cannot be interpreted that the said amendment to the General Rules though later in point  of  time  would  abrogate  the  special  rule  the scope  of  which  is  very  clear  and  which  co-exists particularly when no patent conflict or inconsistency can be spelt out. As already noted, Rules 1(3)(a), 3(1) and 4 of  the General  Rules themselves provide for promotion by selection and for enforceability of the Special  Rules in that  regard.  Therefore,  there is  no patent  conflict  or  inconsistency  at  all  between the General and the Special Rules.”

34) In the light of principles laid down, we find that Section 3 of the Act

completely overrides the provisions of Chapter XIII of IPC in respect of

the offences and penalties imposable for violations of the provisions

of the Act, it being special Act.  Therefore, if the offence is disclosed

to be made out under the provisions of the Act, an accused cannot be

charged for the same offence under Chapter XIII of IPC.  Reading of

Section 51 of the Act makes it clear that the provisions of IPC insofar

as they relate to offences with regard to weight or measure, shall not

apply to any offence which is punishable under the Act.  Therefore,

the provisions of IPC which relate to offences with regard to weight

26

and measure as contained in Chapter XIII of IPC alone will not apply.

No  person  can  be  charged  for  an  offence  relating  to  weight  or

measure falling under Chapter XIII of IPC in view of the provisions of

the Act.

  35) The scheme of  the Act  is  for  the offences for  use of  weights  and

measures which are non-standard and for tampering with or altering

any  standards,  secondary  standards  or  working  standards  of  any

weight or measure.  The Act does not foresee any offence relating to

cheating  as  defined  in  Section  415  of  IPC  or  the  offences  under

Sections 467, 468 and 471 of IPC.  Similarly,  an act performed in

furtherance  of  a  common  intention  disclosing  an  offence  under

Section 34 is not covered by the provisions of the Act.  An offence

disclosing  a  criminal  conspiracy  to  commit  an  offence  which  is

punishable under Section 120-B IPC is also not an offence under the

Act.  Since such offences are not punishable under the provisions of

the  Act,  therefore,  the  prosecution  for  such  offences  could  be

maintained since the trial of such offences is not inconsistent with

any of the provisions of the Act. Similar is the provision in respect of

the offences under Sections 467, 468, 471 IPC as such offences are

not covered by the provisions of the Act.   

27

36) Thus,  we  partly  allow  the  present  appeals  with  the  following

directions:

(i) Directions given by the High Court, as mentioned in para 11

above, are hereby quashed.   

(ii) We uphold  the  order  of  the  High  Court  that  the  offences

under Sections 265 and 267 IPC are liable to be quashed.

(iii) The  directions  of  the  High  Court  in  proceedings  under

Section 482 of the Code against the interest of the accused

in a petition filed by the accused are beyond the jurisdiction

of  the  High  Court  and,  thus,  all  such  observations  and

directions are quashed.

(iv) The  directions  issued  by  the  High  Court  that  the  erring

officers/officials named in the supplementary report shall be

subject to disciplinary action are again beyond the scope of

the High Court in a petition under Section 482 of the Code

seeking  quashing  of  the  charge-sheet  and  are,  thus,

quashed.  

(v) It is open to the investigating agency to charge the accused

for  such  offences  or  any  other  offence  by  way  of  a

supplementary report or at a subsequent stage during trial

as considered appropriate by the investigating agency.

(vi) In other words, the entire order of the High Court is set aside

except  the  order  which  relates  to  the  quashing  of  the

28

charges under Sections 265 and 267 IPC but it shall be open

to  the  investigating  agency  to  take  such  steps  as  are

required to  complete the investigation  in  accordance with

law.

Crl. Appeal No.                of 2019   (@SLP (Criminal) No.3321 of 2018)

37) Leave granted.  

38) The challenge in the present appeal is to an order passed by the High

Court  of  Allahabad  at  Lucknow  on  November  24,  2017  whereby,

petition  under  Section  482  of  the  Code  for  quashing  of  Crime

No.0313, P.S. Hasanganj dated April 28, 2017 for the offences under

Sections 265, 267, 420, 467, 468 and 34 IPC and Sections 3 and 7 of

the Act, 1955 and Section 26/30 of the Act,  filed by the appellant

who is being prosecuted, was dismissed.  

39) The present appeal was posted for final hearing along with Criminal

Appeals  arising out  of  SLP (Criminal)  Nos.  9981-9982 of  2017 and

1912-1913 of 2018.  In the aforesaid case, it has been held that the

offence under Chapter XIII  of  IPC cannot  be lodged in view of the

provisions of the Act whereas the prosecution under other offences of

IPC has been found to be maintainable.   

40) In view of the said fact, the present appeal is partly allowed.  The

offences under Sections 265 and 267 IPC are quashed in view of the

29

reasons recorded in the aforesaid appeals.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; SEPTEMBER 04, 2019.

30