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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

Page 4 4

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 Maharashtra

4

.

Assailing the constitutional validity, it was urged before the

Constitution Bench that the said provision imposes

incompatible and unacceptable restrictions on the freedom of

speech and expression guaranteed under Section 19(1)(a) of

the Constitution. The Constitution Bench opined as follows:-

“7.No doubt this article guarantees complete

freedom of speech and expression but it also makes

an exception in favour of existing laws which

4 AIR 1965 SC 881

Page 12 12

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,

Page 15 15

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 India

5

, the Court was

dealing with constitutional validity of Section 66-A of the IT

Act and the two-Judge Bench declared the said provision as

unconstitutional by stating thus:-

“85. These two cases illustrate how judicially

trained minds would find a person guilty or not

guilty depending upon the Judge’s notion of what is

“grossly offensive” or “menacing”. In Collins case,

both the Leicestershire Justices and two Judges of

the Queen’s Bench would have acquitted Collins

whereas the House of Lords convicted him.

Similarly, in the Chambers case, the Crown Court

would have convicted Chambers whereas the

Queen’s Bench acquitted him. If judicially trained

minds can come to diametrically opposite

conclusions on the same set of facts it is obvious

that expressions such as “grossly offensive” or

“menacing” are so vague that there is no

manageable standard by which a person can be said

to have committed an offence or not to have

committed an offence. Quite obviously, a

prospective offender of Section 66-A and the

authorities who are to enforce Section 66-A have

absolutely no manageable standard by which to

book a person for an offence under Section 66-A.

This being the case, having regard also to the two

English precedents cited by the learned Additional

Solicitor General, it is clear that Section 66-A is

unconstitutionally vague.

5 (2015) 5 SCC 1

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86. Ultimately, applying the tests referred to in

Chintaman Rao

6

and V.G. Row

7

case, referred to

earlier in the judgment, it is clear that Section 66-A

arbitrarily, excessively and disproportionately

invades the right of free speech and upsets the

balance between such right and the reasonable

restrictions that may be imposed on such right.”

20.Thereafter the Court referred to Kameshwar Prasad

State of Bihar

8

and Central Prison v. Ram Manohar Lohia

9

and came to hold as follows:-

“94. These two Constitution Bench decisions bind

us and would apply directly on Section 66-A. We,

therefore, hold that the section is unconstitutional

also on the ground that it takes within its sweep

protected speech and speech that is innocent in

nature and is liable therefore to be used in such a

way as to have a chilling effect on free speech and

would, therefore, have to be struck down on the

ground of overbreadth.”

21.While dealing with obscenity, the Curt referred to Ranjit

D. Udeshi (supra) and other decisions and opined thus:-

“48. This Court in Ranjit D. Udeshi v. State of

Maharashtra (supra) took a rather restrictive view of

what would pass muster as not being obscene. The

Court followed the test laid down in the old English

judgment in Hicklin case

10

which was whether the

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

Page 19 19

tendency of the matter charged as obscene is to

deprave and corrupt those whose minds are open to

such immoral influences and into whose hands a

publication of this sort may fall. Great strides have

been made since this decision in the U.K., the

United States as well as in our country. Thus, in

Directorate General of Doordarshan v. Anand

Patwardhan

11

this Court noticed the law in the

United States and said that a material may be

regarded as obscene if the average person applying

contemporary community standards would find that

the subject-matter taken as a whole appeals to the

prurient interest and that taken as a whole it

otherwise lacks serious literary, artistic, political,

educational or scientific value (see para 31).

49. In a recent judgment of this Court, Aveek

Sarkar v. State of W.B.

12

, this Court referred to

English, US and Canadian judgments and moved

away from the Hicklin (supra) test and applied the

contemporary community standards test.

50. What has been said with regard to public order

and incitement to an offence equally applies here.

Section 66-A cannot possibly be said to create an

offence which falls within the expression “decency”

or “morality” in that what may be grossly offensive

or annoying under the section need not be obscene

at all—in fact the word “obscene” is conspicuous by

its absence in Section 66-A.”

22.In Devidas Ramachandra Tuljapurkar v. State of

Maharashtra and Ors

13

analyzing the said judgment another

11 (2006) 8 SCC 433

12 (2014) 4 SCC 257

13 (2015) 6 SCC 1

Page 20 20

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

Page 21 21

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

Page 22 22

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

Page 23 23

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.

Page 24 24

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.

Page 25 25

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.

Page 26 26

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

Page 27 27

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

Page 28 28

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

Page 29 29

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

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

14

.

The Court was considering Section 39 of Slum Areas

(Improvement and Clearance) Act, 1956 which laid down that

the provisions of the said Act and the rules made thereunder

shall have effect notwithstanding anything inconsistent

therewith contained in any other law. The Delhi Rent Control

Act, 1958 also contained non-obstante clauses. Interpreting

the same, the Court held:-

“When two or more laws operate in the same field

and each contains a non-obstante clause stating

that its provisions will override those of any other

law, stimulating and incisive problems of

interpretation arise. Since statutory interpretation

has no conventional protocol, cases of such conflict

have to be decided in reference to the object and

purpose of the laws under consideration. A piquant

situation, like the one before us, arose in Shri Ram

Narain v. Simla Banking & Industrial Co. Ltd.

15

the

competing statutes being the Banking Companies

Act, 1949 as amended by Act 52 of 1953, and the

Displaced Persons (Debts Adjustment) Act, 1951.

Section 45-A of the Banking Companies Act, which

was introduced by the amending Act of 1953, and

Section 3 of the Displaced Persons Act, 1951

contained each a non-obstante clause, providing

that certain provisions would have effect

14 (1977) 1 SCC 750

15 AIR 1956 SC 614

Page 30 30

“notwithstanding anything inconsistent therewith

contained in any other law for the time being in

force ...”. This Court resolved the conflict by

considering the object and purpose of the two laws

and giving precedence to the Banking Companies

Act by observing:

“It is, therefore, desirable to determine the

overriding effect of one or the other of the

relevant provisions in these two Acts, in a given

case, on much broader considerations of the

purpose and policy underlying the two Acts and

the clear intendment conveyed by the language of

the relevant provisions therein” (p. 615)

As indicated by us, the special and specific purpose

which motivated the enactment of Section 14-A and

Chapter III-A of the Delhi Rent Act would be wholly

frustrated if the provisions of the Slum Clearance Act

requiring permission of the competent authority were

to prevail over them. Therefore, the newly introduced

provisions of the Delhi Rent Act must hold the field

and be given full effect despite anything to the

contrary contained in the Slum Clearance Act.”

29.In Talcher Municipality v. Talcher Regulated Market

Committee

16

, the Court was dealing with the question

whether the Orissa Municipal Act, 1950 or Orissa Agricultural

Produce Markets Act, 1956 should apply. Section 4(4) of the

16 (2004) 6 SCC 178

Page 31 31

1956 Act contained a non-obstante clause. In that context,

the Court opined:-

“The Act, however, contains special provisions. The

provision of Section 4(4) of the said Act operates

notwithstanding anything to the contrary contained

in any other law for the time being in force. The

provisions of the said Act, therefore, would prevail

over the provisions of the Orissa Municipal Act. The

maxim “generalia specialibus non derogant” would,

thus, be applicable in this case. (See D.R. Yadav v.

R.K. Singh

17

, Indian Handicrafts Emporium v. Union

of India

18

and M.P. Vidyut Karamchari Sangh v. M.P.

Electricity Board

19

.)”

30.In Ram Narain (supra), the Court faced a situation

where both the statutes, namely, Banking Companies Act,

1949 and the Displaced Persons (Debts Adjustment) Act, 1951

contained non-obstante clause. The Court gave primacy to the

Banking Companies Act. To arrive at the said conclusion, the

Court evolved the following principle:-

“7. … It is, therefore, desirable to determine the

overriding effect of one or the other of the relevant

provisions in these two Acts, in a given case, on

much broader considerations of the purpose and

policy underlying the two Acts and the clear

17 (2003) 7 SCC 110

18 (2003) 7 SCC 589

19 (2004) 9 SCC 755

Page 32 32

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

Page 33 33

obscenity pertaining to electronic record falls under the

scheme of the Act. We have also referred to Sections 79 and

81 of the IT Act. Once the special provisions having the

overriding effect do cover a criminal act and the offender, he

gets out of the net of the IPC and in this case, Section 292. It

is apt to note here that electronic forms of transmission is

covered by the IT Act, which is a special law. It is settled

position in law that a special law shall prevail over the general

and prior laws. When the Act in various provisions deals with

obscenity in electronic form, it covers the offence under

Section 292 IPC.

33.In Jeewan Kumar Raut v. CBI

21

, in the context of

Transplantation of Human Organs Act, 1994 (TOHO) treating

it as a special law, the Court held:-

“22. TOHO being a special statute, Section 4 of the

Code, which ordinarily would be applicable for

investigation into a cognizable offence or the other

provisions, may not be applicable. Section 4 provides

for investigation, inquiry, trial, etc. according to the

provisions of the Code. Sub-section (2) of Section 4,

however, specifically provides that offences under any

other law shall be investigated, inquired into, tried

and otherwise dealt with according to the same

21 (2009) 7 SCC 526

Page 34 34

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

Page 35 35

criminal prosecution lodged against the appellant stands

quashed.

……………… . J

(Dipak Misra)

….……………… J

(Praffula C. Pant)

New Delhi

December 14, 2016