2016 (12) TMI 1821 - SC - Indian Laws

IT Act Prevails Over IPC: Charges Dropped in Electronic Records Case.

The appeal was allowed, and the orders of the High Court and trial court were set aside. The criminal prosecution against the appellant was quashed, ... Doctrine of strict construction - commission of the offence by the company punishable Under Section 292 Indian Penal Code - vicarious liability - whether the Appellant who has been discharged Under Section 67 of the IT Act could be proceeded Under Section 292 Indian Penal Code? HELD THAT:- 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 - 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. 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. 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 Indian Penal Code 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 Indian Penal Code. 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 Indian Penal Code - the orders passed by the High Court and the trial court are set aside - Appeal allowed. Issues Involved:1. Prosecution of the appellant under Sections 292 and 294 of the Indian Penal Code (IPC) and Section 67 of the Information Technology Act, 2000 (IT Act).2. Interpretation of Section 85 of the IT Act in relation to vicarious liability.3. Applicability of Section 292 IPC after discharge under Section 67 of the IT Act.4. Overriding effect of IT Act provisions over IPC provisions.Issue-wise Detailed Analysis:1. Prosecution under IPC and IT Act:The appellant, along with others, was charged under Sections 292 and 294 IPC and Section 67 of the IT Act. The High Court discharged the appellant from Sections 292 and 294 IPC but found a prima facie case under Section 67 read with Section 85 of the IT Act. The trial court was directed to proceed accordingly.2. Interpretation of Section 85 of IT Act:The core issue was whether the company could be prosecuted without being impleaded as an accused and whether directors could be prosecuted without the company being arrayed as an accused. The court held that commission of an offence by the company is a condition precedent to vicarious liability of others. Thus, the director could not be held liable under Section 85 of the IT Act without the company being prosecuted.3. Applicability of Section 292 IPC after discharge under Section 67 of IT Act:The appellant argued that prosecution under Section 292 IPC was not maintainable after discharge under Section 67 of the IT Act. The Attorney General contended that Section 67 of the IT Act is a special provision that overrides Section 292 IPC. The court noted that Section 67 of the IT Act deals specifically with electronic records and is a special provision for a specific purpose. The IT Act, being a special enactment, has overriding provisions that cover offences related to electronic records.4. Overriding effect of IT Act provisions:The court emphasized that the IT Act's provisions, being special laws, prevail over the general provisions of the IPC. Section 81 of the IT Act explicitly states that its provisions shall have effect notwithstanding anything inconsistent with any other law. The court concluded that once the offence pertains to electronic records, the protection and effect of Section 79 of the IT Act cannot be ignored, and the special provisions of the IT Act would apply.Conclusion:The appeal was allowed, and the orders of the High Court and trial court were set aside. The criminal prosecution against the appellant was quashed, emphasizing the overriding effect of the IT Act's special provisions over the IPC in cases involving electronic records.