TaxTMI 
TaxTMI 
2018 (10) TMI 1832
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....ould be necessary to refer to the basic facts involved in the matter. The petitioners before us are two brothers. The petitioner No. 1 is an Electronic Engineer employed as Vice President-Strategy and Business Development of M/s. Bliss GVS Pharma Ltd., India, a Pharmaceuticals Company engaged in the business of manufacturing, distribution and marketing of pharmaceuticals products across the globe. The petitioner No. 2 is a Graduate in Information Technology and a software developer undertaking activity of software development for use in the healthcare industry. The two petitioners are arraigned as accused in Crime No. 0346 of 2017 registered with Shahupuri Police Station on 27.08.2017. The First Information Report alleges that they have indulged themselves in offences punishable under Sections 408, 420 of the Indian Penal Code and also offences under Sections 43, 65 and 66 of the Information Technology Act, 2000. The FIR is registered on a complaint filed by one Shadab Abdul Shaikh, an employee of M/s. Manorama Infosolutions Pvt. Ltd., Kolhapur in the capacity as Human Resources Head. It is alleged in the said complaint that M/s. Manorama Infosolutions Pvt. Ltd., Kolhapur, is a com....
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....y was transferred to the petitioners and their new company namely RiteSource Pharma Solutions Pvt. Ltd. 3. In the backdrop of these facts the petitioners have approached this Court through the present petition praying for the relief sought in the petition. The learned Senior Counsel Shri. Vikram Chaudhary arguing on behalf of the petitioners would rely on a judgment of the Hon'ble Apex Court in the case of Sharat Babu Digumarti V/s. Government (NCT of Delhi) (Supra) and it is his submission that the criminal proceedings against the petitioners are misconceived. He would submit that Section 43 of the Information Technology Act, 2000 read with Section 66 is sufficient to take care of the acts alleged against the present petitioners. It is the submission of the learned Senior Counsel Shri. Chaudhary that the offences under the Information Technology Act are compoundable and bailable. He would invite our attention to Section 77A and 77B of the Act of 2000. His precise submission is that by invoking and applying the provisions of the Indian Penal Code, attempt is made to deprive them of benefit of bail and compounding, which is available under the I.T. Act, 2000. The learned s....
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....his backdrop according to the learned Senior Counsel the judgment of the Hon'ble Apex Court would have to be read. Shri. Gupte relied on the latest judgment of the Hon'ble Apex Court in Criminal Appeal No. 1195 of 2018 in case of The State of Maharashtra and Anr. V/s. Sayyed Hassan Sayyad Subhan and Ors. delivered on 20th September 2018. His submission is that the Hon'ble Apex Court has held that there is no bar in prosecuting the persons under the Penal Code where the offences committed are cognizable offences and merely because the provisions in the Food Safety and Security Act constitute an offence, there is no bar to prosecute them under the Indian Penal Code. In backdrop of the said judgment he would pray for dismissal of the Writ Petition. 5. During the course of the hearing of the matter, the learned counsel for the petitioner has placed on record, copy of the order passed by the Hon'ble Apex Court on 03.10.2018 in Special Leave to Appeal (CRL) 8274 of 2018 in case of the petitioner No. 1 who had approached it being aggrieved by the rejection of his Anticipatory Bail. We have perused the said order. The Hon'ble Apex Court, in the backdrop of the factum....
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....ed in the backdrop of the security of the nation, economy, public health and safety. 7. Perusal of the said provisions of the I.T. Act, 2000 would reveal that it provides complete mechanism for protection of data in a computer system or a computer network. The computer system is intended to cover a device or collection of devices, including input and output support devices capable of being used in conjunction with external files, containing computer programs, electronic instructions, input and output data, data storage and retrieval. The said enactment is a complete code which deals with electronic governance and confers a legal recognition on electronic records and the manner in which such records can be secured. The said Act of 2000 makes certain acts punishable in Chapter-IX and Chapter-XI of the said act which enumerates the offences related to the computer including the source documents. Thus, the said enactment is a complete Code in itself and deals with various aspects of electronic data and computer system. Section 43 of Information Technology Act, 2000 prescribes penalty and compensation for damage to computer and computer system needs a reproduction:- 43 [P....
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....mputer database" means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network; (iii) "computer virus" means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed or some other event takes place in that computer resource; (iv) "damage" means to destroy, alter, delete, add, modify or rearrange any computer resource by any means; (v) "computer source code" means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.] It is apposite to refer Section 65 and 66 which reads thus:- "65. Tampering with computer source documents:- Whoever knowingly or intentionally conceals, destroys or alters or intentional....
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....ned. 10. The Hon'ble Apex Court in case of Sharat Babu Digumarti (Supra) had in great detail dealt with the offences punishable under the Information Technology Act and at the same time punishable under the relevant provisions of the Indian Penal Code. In the said case, an FIR was filed against the appellant and on investigation, chargesheet came to be filed before the Magistrate who took cognizance of the offences punishable under Section 292 and 294 of the Indian Penal Code and also Section 67 of the Information Technology Act. In a petition before the High Court seeking quashment, he was discharged of the offences under Section 292 and 294 but the prosecution under Section 67 of the Information Technology Act continued. The appellant approached the Apex Court and on the ground that the company was not arraigned as a party and the Director could not have been liable of the offences punishable under Section 85 of the Information Technology Act and the proceeding came to be quashed. Subsequently an application came to be filed before the Trial Court to drop the proceedings and the Trial Court refused to drop the proceedings under Section 292 of Indian Penal Code and framed t....
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....n 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. 37. 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. 39. In view of the aforesaid analysis and the autho....
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....ich is to be invoked in case of conflict between a specific provision and general provision and which gives the specific provision an overriding effect over the general provision has been described in Craies on statute law at page 206, Sixth Edition Rommaly, Mr. referred the rule as "The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense would override, particular enactment must be inactive and the general enactment must be taken to effect only the over parts of the statute to which it may properly apply. In case of Belsund Sugar Co. Ltd. V/s. The State of Bihar AIR 1999 SC 3125, the Hon'ble Apex Court was required to deal with one such special statute by Section 4 of the Bihar Finance Act (Act 5 of 1981), provision was made for levy of purchase tax on goods in general. Provision was also made for levy of purchase tax on sugarcane later by section 49 of the Bihar Sugarcane (Regulation of Supply and Purchase) Act (Act 37 of 1982) which was a special Act for the control of the activities of production, supply and regulation of sugarcane including the levy of purchase tax. In so fa....
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.... 16. Further in case of Yakub Abdul Razak Memon V/s. State of Maharashtra (2013) 13-SCC-1 the Hon'ble Apex Court while dealing with an 'overriding effect' clause in the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short 'TADA'), while examining its effect on the Juvenile Justice Act, 2000 made the following observations:- 1517. Where two statutes provide for overriding effect on the other law for the time being in force and the court has to examine which one of them must prevail, the court has to examine the issue considering the following two basic principles of statutory interpretation: 1. Leges posteriores priores contrarias abrogant (later laws abrogate earlier contrary laws). 2. Generalia specialibus non derogant (a general provision does not derogate from a special one.) 1518. The principle that the latter Act would prevail the earlier Act has consistently been held to be subject to the exception that a general provision does not derogate from a special one. It means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment cont....
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.... case of Sharat Babu Digumarti (Supra), the Court was called upon to deal with a special act namely the Transplantation of the Human Organs Act, 1994. The FIR registered disclosed not only commission of offence under TOHO but also the Indian Penal Code. The officer in-charge of the Police Station being not authorized to deal with the matter in relation to TOHO, the investigation of the complaint was handed over to CBI. When the question arose about the procedure to be followed while investigating the said offence under the special enactment, the Hon'ble Apex Court observed thus:- "19. TOHO is a special Act. It deals with the subjects mentioned therein, viz. offences relating to removal of human organs, etc. Having regard to the importance of the subject only, enactment of the said regulatory statute was imperative. 20. TOHO provides for appointment of an appropriate authority to deal with the matters specified in sub-section (3) of Section 13 thereof. By reason of the aforementioned provision, an appropriate authority has specifically been authorised inter alia to investigate any complaint of the breach of any of the provisions of TOHO or any of the rules made....
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....on'ble Apex Court construed that both the enactment are traceable to Article 15(3) of the Constitution which enable Parliament to make a special provision for the benefit of the children. As regards whether the statute would be construed as general or special one, the Apex Court observed thus:- 95. Whatever be the explanation, given the context and purpose of their enactment, primacy must be given to pro-child statutes over IPC as provided for in Sections 5 and 41 IPC. There are several reasons for this including the absence of any rationale in creating an artificial distinction, in relation to sexual offences, between a married girl child and an unmarried girl child. Statutes concerning the rights of children are special laws concerning a special subject of legislation and therefore the provisions of such subject-specific legislations must prevail and take precedence over the provisions of a general law such as IPC. It must also be remembered that the provisions of the JJ Act as well as the provisions of the POCSO Act are traceable to Article 15(3) of the Constitution which enables Parliament to make special provisions for the benefit of children. We have already adve....
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....nt that when the statute is looked at without the glasses provided by the context. With these glasses we must look at the set as a whole and discover what each section, each clause, each phrase, each word is meant and designed to say as to fit into the scheme of the entire Act." 20. It is also a settled principle of statutory interpretation that a clause or a Section beginning with 'notwithstanding anything contained in this Act or some particular provision in the Act or in any law for the time being in force', 'is sometimes appended in a Section or is included in an enactment which would give the provision or the Act an overriding effect over the provision or the Act mentioned in the non-obstante clause. The non-obstante clause may be used as legislative device to modify the ambit of the provision or law mentioned in the non-obstante laws or to override in specified circumstances. The phrase 'notwithstanding anything in' is used in contradiction to the phrase 'subject to', the latter conveying the idea of the provision yielding placed to another provision or other provisions to which it is made subject to. 21. Keeping the aforesaid authoritative p....
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....een authored by their lordships in case of Sharat Babu Digumarti (Supra). 22. The reliance placed by the learned counsel Shri. Gupte judgment in case of The State of Maharashtra & Anr. V/s. Sayyad Hassan Sayyed Subhan & Ors.1, in our view it is not applicable to the present case in light of the direct pronouncement of the Hon'ble Apex Court in case of Sharat Babu Digumarti (Supra). In the case relied upon by the learned Senior Counsel the issue involved was whether an act or omission can constitute an offence under the Indian Penal Code and at the same time under any other law and in the said case under the Food and Safety Standards Act, 2006. The facts involved revealed that a notification was issued on 18.07.2013 by the Commissioner Food Safety and Drug Administration, Government of Maharashtra under Section 30 prohibiting manufacture, storage, distribution or sale of tobacco Areca nut and gutka/panmasala etc. The facts of the said case would reveal that First Information was registered for transportation and sale of gutka and panmasala and thereby invoking offences punishable under Section 26 and 30 of the FSS Act and also Section 188, 272, 273, 328 of Indian Penal Cod....
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....rt 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. 25. The rule against double jeopardy is a significant basic rule of criminal law that no man shall be put in jeopardy twice for one and the same offence. The manifestation of the said rule no doubt finds place in Section 26 of the general clauses Act, 1897 which reads thus:- "Provision as to offences punishable under two or more enactments-where an act of omission constitutes of offences under two or more enactments, offender shall be liable to be prosecuted and punish under either or any of these enactments that he shall not be liable to be punished twice in the said enactment'. Article 20(2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once. To attract the applicability of th....
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....isions will be treated as involving separate offences for double jeopardy purposes only if "each provision requires proof of an additional fact which the other does not" (Blockburger v. United States [76 L Ed 306: 284 US 299 (1932)]). Where the same evidence suffices to prove both crimes, they are the same for double jeopardy purposes, and the clause forbids successive trials and cumulative punishments for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately. (Jeffers v. United States [53 L Ed 2d 168: 432 US 137 (1977)] .)' 27. The expressions 'the same offence', 'substantially the same offence', 'in effect the same offence' or 'practically the same', have not done much to lessen the difficulty in applying the tests to identify the legal common denominators of 'same offence'. Friedland in Double Jeopardy (Oxford 1969) says at p. 108: 'The trouble with this approach is that it is vague and hazy and conceals the thought processes of the court. Such an inexact test must depend upon the individual impressions of the Judges and can giv....
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....de and stealing the said data by using the computer source code. The Act of accessing or securing access to computer/computer system or computer network or computer resources by any person without permission of the owner or any person who is in charge of the computer, computer system, computer network or downloading of any such data or information from computer in a similar manner falls within the purview of Section 43 of the Information Technology Act, 2000. When such Act is done dishonestly and fraudulently it would attract the punishment under Section 66 of the Information Technology Act, such Act being held to be an offence. The ingredients of dishonesty and fraudulently are the same which are present if the person is charged with Section 420 of the Indian Penal Code. The offence of Section 379 in terms of technology is also covered under Section 43. Further, as far as Section 408 is concerned which relates to criminal breach of trust, by a clerk or servant who is entrusted in such capacity with the property or with any dominion over property, would also fall within the purview of Section 43 would intents to cover any act of accessing a computer by a person without permission o....