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Sharat Babu Digumarti v. Govt. of NCT of Delhi - (Supreme Court) (14 Dec 2016)

A special law shall prevail over the general and prior laws

MANU/SC/1592/2016

Criminal

Present Appellant filed an application before trial court to drop the proceedings against him. Trial court partly allowed application and dropped proceedings against Appellant for offences under Section 294 of Indian Penal Code, 1860 (IPC) and Section 67 of the Information Technology Act, 2000 (IT Act) however, proceedings under Section 292 of IPC were not dropped, and vide order, Trial Court framed the charge under Section 292 of IPC. Being aggrieved by order framing of charge, Appellant moved the High Court in Criminal Revision and learned Single Judge by impugned order declined to interfere on ground that there is sufficient material showing Appellant's involvement to proceed against him for commission of the offence punishable under Section 292 of IPC. 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 of IPC.

It is beyond dispute that, alleged possession of material constitutes the electronic record as defined Under Section 2(1)(t) of IT Act. Thus, offence in question relates to electronic record. Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. Said provision read with Sections 67A and 67B of IT Act is a complete code relating to offences that are covered under IT Act. Section 79 of IT Act, is an exemption provision conferring protection to the individuals. 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 alleged offence pertains to offence of electronic record. IT Act is a special enactment. It has special provisions. Section 292 of IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with electronic record the protection and effect of Section 79 of IT Act cannot be ignored and negated.

If legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the Indian Penal Code and in this case, Section 292 of IPC. Electronic forms of transmission are 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 of IPC. 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 of IPC. Supreme Court set aside order passed by High Court and trial court and criminal prosecution lodged against Appellant was quashed.

Relevant : Sections 2, 67A, 67B, 81 and 79 of Information Technology Act, 2000, Section 292 Indian Penal Code, 1860

Tags : CHARGE   PROVISIONS   PROCEEDINGS   VALIDITY  

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