Gauhati High Court
Partha Jeet Pathak vs The State Of Assam And Anr on 7 February, 2024
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GAHC010021522024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./112/2024
PARTHA JEET PATHAK
S/O SRI ANIRUDHA PATHAK
R/O HOWLY, BARPETA, P.S. HOWLY
DIST. BARPETA, ASSAM
PIN- 781316
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:INSPECTOR OF POLICE
CRIME BRANCH
GUWAHATI-78100
Advocate for the Petitioner : MR. D DAS SR. ADV
Advocate for the Respondent : PP, ASSAM
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
07.02.2024 Heard Mr. D. Das, learned Senior Advocate assisted by Mr. M. More, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Public Prosecutor for the State respondent.
2. This is an application filed under Section 482 of the Code of Criminal Procedure, 1973, praying for setting aside and quashing of the First Information Report (in short FIR) of Cyber P. S. Case No.08/2023 under Sections 419 /420 /385 /467 /471 / 468/507/120B of IPC read with Sections 65/66/66B/66C/66D of the Information Technology Act, 2000 (in short I.T., Act), so far as the investigation into the offences punishable under the IPC are concerned.
3. It is contended by the petitioner that on 14.09.2023 the Inspector of Police, Crime Branch, lodged an FIR before the Officer-In-Charge, Cyber Police Station, Guwahati, alleging inter alia, that some reliable information was received that some scammer gangs are operational in Guwahati, Assam, who are involved in scamming and cheating by impersonating as tech support staff by originating tech support popups to deceive individuals and cheat them out of money and personal information. It was further alleged that the victims were asked to install remote desktop software and thereby take access to their computers and plant malware in the victim's devices. It is further alleged in the FIR that after receipt of the information an enquiry was made and it was revealed that the accused person named in the FIR along with other accomplices have illegally set up customer care centers in differed places of Guwahati which are used to scam and cheat Indian and Foreign Nationals by impersonating as Tech Support Staff by forging electronic documents and using them as genuine.
Page No.# 3/8 Accordingly, on receipt of the FIR, the Officer-In-Charge of Cyber Police Station, Guwahati registered a case being Cyber P. S. Case No.08/2023 under Sections 419 / 420 /385 /467 /471 /468 /507 / 120B of IPC read with Sections 65/66/66B/66C/66D of I.T. Act, and started the investigation of the case.
4. Mr. Das, learned Senior Advocate has submitted that the petitioner is innocent person and he is no way connected with the alleged offence. The accused petitioner has been falsely implicating in this case by way of notice under Section 41A Cr.P.C. with some ulterior motive and he has nothing to do with the allegations leveled in the FIR and hence, he prays for setting aside and quashing of the same.
5. Mr. Das, learned Senior Advocate further submits that on perusal of the allegations leveled in the FIR, as noted above, it is crystal clear that the offences in question relates to electronic record as defined under Section 2(1)(t) of the I.T., Act, 2000. Further, Section 81 of I.T., Act, also specifically provided that the provisions of the act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The I.T., Act, is a special enactment which has special provisions and those provisions will have their play and significance if the alleged offence pertains to offence of electronic record. He also submitted that it is a well settled that once the special provisions having overriding effect do cover a criminal act and the offender, he gets out of the net of the IPC and the special law shall prevail. The provisions of IPC will not be attracted if there is special act covering the criminal act.
6. In support of this submission, Mr. Das, learned Senior Advocate relies on the decision passed by the Hon'ble Apex Court reported in (2017) 2 SCC 18 [Sharat Bau Digumarti vs. Government (NCT Delhi) and emphasis on paragraph Nos. 31, 32, 36 and 37, which reads as under;
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31. 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 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.
32. 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 protection granted by the IT Act would apply.
36. 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 Page No.# 5/8 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."
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."
7. Relying on the above judgment, it is submitted by the learned Senior Advocate that 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. In the instant case also, it is seen that the I.T., Act, under which the case has been registered also covers the offences under IPC.
8. In addition to his submission, Mr. Das, learned Senior Advocate also relies on another judgment passed by the High Court of Bombay in the case of Gagan Harsh Sharma & Anr. Vs. State of Maharashtra through Sr. Police Inspector reported in 2018 SCC online Bom 17705, wherein, also a similar kind of order has been passed.
9. Mr. Das, learned Senior Advocate accordingly prays for setting aside of the Cyber P. S. Case No.08/2023 under Sections 419 /420 /385 /467 /471 /468 /507 / 120B of Page No.# 6/8 IPC read with Sections 65/66/66B/66C/66D of I.T. Act. In interim, the learned Senior Advocate, Mr. Das, prays for protection before this Court to direct the Investigating Authority not to take any coercive action against the present petitioner till disposal of the present criminal petition.
10. In this context, Mr. Borthakur, learned Public Prosecutor has submitted that the offence leveled against the accused/petitioner is not computer related offence, though computer was used as a medium to cheat the general public. He further submits that at his stage, it is not possible to compare the offences unless the Case Diary is produce before this Court to see as to whether, apart from the I.T., Act offences under the IPC attracts the present case or not. The allegation brought against the accused/petitioner along with the other co-accused persons, it is seen that, it is an organized crime causing significant threat to the national security.
11. In support of his argument, Mr. Borthakur, learned Public Prosecutor relies on the decision passed by the Hon'ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors. reported in AIR online 2021 SC 192, wherein, the Apex Court expressed the view that "passing of blanket interim orders without assigning reasons, of not to arrest and/or "no coercive steps" would hamper the investigation and may affect the statutory right/duty of the police to investigate the cognizable offence conferred under the provisions of the Cr.P.C.
12. In reply to the submission made by the learned Public Prosecutor, Mr. Das, learned Senior Advocate has submitted that in the case of Neeharika (supra), the Hon'ble Apex Court had expressed the view that while passing such kind of order, "the High Court must disclose reasons why it has passed an ad-interim direction during the pendency of the proceedings under Section 482 of Cr.P.C". He further submits that Page No.# 7/8 considering the fact of the above stated judgment, and also considering the facts and circumstances of the instant case, he prays for interim protection by directing the concerned Investigating Authority not to take any coercive action against the present petitioner.
13. After considering the submissions made by the learned Advocates of both sides as well as considering the entire aspect of the case, it is seen that the present petition has been filed for quashing of the FIR in respect of the investigation note that the offence under the IPC are concerned.
14. The Section 81 of the IT, Act read as under;-
"Section 81- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
1 [Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 (14 of 1957) or the Patents Act, 1970 (39 of 1970).]"
15. It is a settled position of law that a special law shall prevail over the general and prior laws, but, without perusal of the Case Diary it will not be possible to frame an opinion as to whether the alleged offence also falls under the provisions of IPC under which the case has already been registered along with various Sections of I.T. Act. Accordingly, I find it appropriate to call for the Case Diary at this stage and considering, the entire facts and circumstances of the case, the Investigating Authority is hereby directed not to take any coercive action against the present petitioner in connection with Cyber P. S. Case No.08/2023 under Sections 419 /420 /385 /467 / 471 /468 /507 / 120B of IPC read with Sections 65/66/66B/66C/66D of I.T. Act, till disposal of this Criminal Petition.
16. Call for the Case Diary.
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17. List the matter again on 19.02.2024.
JUDGE Comparing Assistant