AI Drafter 
TaxTMI 
TaxTMI 
2016 (12) TMI 1821
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd Section 67 of the 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 Indian Penal Code, but it expressed the opinion that Avinish Bajaj, the Petitioner in the said case, was not liable to be proceeded Under Section 292 Indian Penal Code and, accordingly, he was discharged of the offence Under Sections 292 and 294 Indian Penal Code. 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 to interpretation o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rises for consideration is whether the Appellant who has been discharged Under Section 67 of the IT Act could be proceeded Under Section 292 Indian Penal Code. 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. 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 Indian Penal Code. It is submitted by Dr. Singhvi that the Appellant could not have been proceeded Under Section 292 Indian Penal Code after having been discharged Under Section ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both. Exception....
X X X X Extracts X X X X
X X X X Extracts 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 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 Articl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tend 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. 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 Indian Penal Code, we are not disposed to enter into the s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ying the tests referred to in Chintaman Rao v. State of M.P. AIR 1951 SC 118 and State of Madras v. V.G. Row AIR 1952 SC 196 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 vs. State of Bihar 1962 Supp. (3) SCR 369 : AIR 1962 SC 1166 and Central Prison v. Ram Manohar Lohia AIR 1960 SC 633 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 M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....porary 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 Indian Penal Code 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 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 Indian Penal Code 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 obs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 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. 26. We have referred to all these provisions of the IT Act only to lay stress that th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aries 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. 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 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. In this regard, we may refer to Sarwan Singh and Anr. v. Kasturi Lal (1977) 1 SCC 750. 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 considerati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....003) 7 SCC 589 and M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board (2004) 9 SCC 755.) 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 intendment conveyed by the language of the relevant provisions therein. 31. In Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. (2001) 3 SCC 71, 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....