The Supreme Court recently in Sharat Babu Digumarti v. Govt. of NCT of Delhi – 2016 SCC OnLine SC 1464, has ruled that in a case if no charge has been made out under Section 67 of IT Act (dealing with obscenity in E-form), then the accused cannot be prosecuted against under Section 292 IPC.
The decision came in perhaps one of the first cases of Cyber Obscenity that hit India – The Bazee.com case, where Avnish Bajaj was prosecuted for an offence under the IT Act and Section 292 of the IPC in the capacity of CEO of Baazee.com. Later, Avnish Bajaj was discharged of all offences on the ground that in the absence of company being made an accused, vicarious liability cannot be fastened to Avnish Bajaj, as he was arraigned only in the capacity of being a director and had played no personal role attributed to him.
In that very case, another official of the company Sharat Babu Digumarti was also prosecuted. The High Court opined that Section 67 of the IT Act (dealing with publishing of obscene material in e-form) was not attracted in the present case, however proceedings u/s 292 IPC can continue. Aggrevied by this decision, the appellant approached the Supreme Court, which held that :-
i) S.67A and Section 67B of the IT Act is a special offence dealing with publishing of obscene information in electornic stream. In this regard, Section 79 of the IT Act provides a crucial protection to intermediaries having regard to pecularities of the Cyber World, which are not available in a traditional prosecution for obsenity in offline form – and therefore, Section 292 of the IPC has no application in such cases, especially when Section 292 was never amended to include the words “electronic Record” and since it does not afford the accused with additional safeguards laid down in S.79 IT Act through which an intermediary can avoid liability by certain remedial actions/due dilgence mechanisms.
ii) The Court essentially applied the doctrine of “Generalia Specialibus non derogant” where a more specific law overrides the more general one.
The relevant excerpts from the Court decision are reproduced as follows :-
“30. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Section 67A and 67B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals. However, the said protection has been expanded in the dictum of Shreya Singhal (supra) and we concur with the same. Section 81 also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 of the IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.
34. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.
35. 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 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.”
36. 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.”
37. 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. “