Uttarakhand High Court
Dalip Kumar vs State Of Uttarakhand And Another on 8 October, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
2024:UHC:7503
HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL
8th October, 2024
Criminal Miscellaneous Application No. 917 of 2021
Dalip Kumar ....Applicant
Versus
State of Uttarakhand and Another ....Respondents
With
Criminal Miscellaneous Application No. 1701 of 2022
Ankush Jain .....Applicant
Versus
State of Uttarakhand and Another ....Respondents
Counsel for the petitioners : Mr. Ramji Shrivastava and Mr. Sagar Kothari,
learned counsel
Counsel for the State : Mr. Pratiroop Pandey, learned AGA along with
Mr. B.C. Joshi, learned AGA for the State
Reserved on : 24.08.2024
Delivered on : 08.10.2024
Hon'ble Rakesh Thapliyal, J. (Oral)
1. In both the Applications preferred under Section C482 CrPC, the common question of law and facts are involved and therefore, both are being decided with the consent of the learned counsels for the parties by common judgment.
2. The principle question that arise in the present Applications is whether the invocation and application of the provisions of the Penal Code, 1860 can be sustained in the facts and circumstances of the case when the offences committed by the applicant are also sought to be brought 1 2024:UHC:7503 within the purview of the Information Technology Act, 2000, in the light of the judgment of the Hon'ble Supreme Court in the case of Sharat Babu Digumarti Vs. Government (NCT of Delhi), (2017) 2 SCC 18.
3. Both the proceedings which are being challenged in both the Applications are arising out of a First Information Report lodged by one Rashmi Pradhan the Nodal Officer, e- Rawanna (now deceased) on 14.07.2020 at P.S. Cyber Police Station, Dehradun registered as FIR No. 0019 of 2020 against some unknown persons for the offences punishable under Section 66 and 66C of the Information Technology (Amendment) Act, 2008.
4. The allegation as alleged in the First Information Report is that for transportation of minerals in District Pauri, some unknown persons illegally generated I.D. M061022325 (GSTIN :05NAFE384QIZI) & e-Rawanna No. IM22325000982 in e-Rawanna portal of the department. It is also alleged that in respect of the said e-Rawanna, an information was sought from the Nodal Officer (e-Rawanna) and on examining I.D. M061022325 on e-Rawanna portal from 25.05.2020 to 15.06.2020, the Nodal Officer gave certain information to District Mining Officer, who in turn, informed that the District Mining Officer have not issued any mining lease in District Pauri Garhwal and on such information immediately the illegally generated I.D. M061022325 was suspended and when the sale record of the said I.D. for the period from 26.05.2020 to 27.05.2020 was examined, it was found that 25,000 ton minor minerals with royalty of Rs. 37,09,200/- @ Rs. 148.36 per ton were downloaded.
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5. It is also alleged that from 05.03.2020 to 18.03.2020 in the name of one Vikram Singh Bisht, in whose name the said I.D. was generated, the total quantity of minor mineral of 20,000 ton and the royalty of Rs. 72,000/- were also illegally generated.
6. It is also alleged that the aforesaid I.D. was generated in March, 2020 and therefore once again to download the data, the same was checked in the e-portal from which it was reflected that the aforesaid I.D. was illegally generated.
7. It is further alleged that since in the data board and in suspended list the I.D. could not be found, therefore, the complainant immediately contacted to Technical Director, NIC telephonically and keeping in view of the security aspects, logs were changed immediately by Nodal Officer and District Mining Officer and thereafter a telephonic conversation took place with NIC Director Technical and sought backup for last three days from 16th to 27th May, 2020 and thereafter, again a telephonic conversation took place between the Nodal Officer and NIC Director Technical and Scientist Amit Kannaujia and thereafter, the NIC informed that due to technical reasons the data is not available from data center.
8. On the said FIR, the investigation was commenced and the I.O. sought certain information from the Director Technical NIC by issuing notice under Section 91 CrPC and Section 67C of I.T. Act on 09.09.2020 and the I.O. raised certain suspicions also upon Ankush Jain, who was posted as Scientist-C in NIC, Uttarakhand State Unit, Secretariat Dehradun on the basis that on 05.03.2020, 25.05.2020, 26.05.2020 and 27.05.2020, he has unauthorisedly accessed e-Rawanna portal.
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9. During investigation, the I.O. also collected information about one purchaser, namely, Satish Kumar Lodhi, who was associated with Anul Pal and thereafter, on 21.11.2020, three persons, Dalip Kumar, Satish Kumar Lodhi and Anuj Pal were arrested and while they were in custody, they have disclosed that they came in contact with Ankush Jain, who was posted as Scientist-C in NIC and all of them planned for commission of the said crime.
10. During investigation, it was also found that Dalip Kumar contacted Ankush Jain by another phone No. 6395073630 on his mobile No. 9897896108 and subsequently, the said phone was destroyed by Dalip Kumar on 27.05.2020 and it was also found that CDR of the said phone 6395073630 is not in operation.
11. The investigation further reveals that all the persons who were arrested on 21.11.2020, made confessional statement and admit their guilt. The investigation further reveals that other persons i.e. Anil Kumar and Gagan Tyagi were also arrested and some documents were also recovered from their possession.
12. After completing the investigation, the I.O. submitted the chargesheet on 05.03.2021 wherein the concerned Magistrate took cognizance on 24.03.2021 against Anuj Pal, Dalip Kumar and Satish Kumar for the offences punishable under Sections 420, 467, 468, 471, 201, 120B of IPC read with Section 66 and 66C of I.T. Act and against co-accused, Gagan Tyagi and Anil Kumar, the cognizance were taken for the offence punishable under Sections 420, 471, 201, 120B IPC read with Section 66 and 66C of I.T. Act and summoned the accused persons and a Criminal Case No. 4 2024:UHC:7503 2375 of 2021, State Vs. Anul Pal and Another was registered.
13. Apart from this, a separate chargesheet was filed against Ankush Jain, who was serving as Scientist-C in NIC, Uttarakhand State Unit on 05.01.2022, wherein the In- charge Judicial Magistrate-II, Dehradun took cognizance on 04.03.2022 and summoned the accused Ankush Jain for the offences punishable under Sections 201, 420, 467, 468, 471, 120B IPC read with Section 66 and 66C of Information Technology (Amendment), 2008 and a Criminal Case No. 1471 of 2022, State Vs. Ankush Jain was registered.
14. After taking cognizance, the accused Dalip Kumar preferred the Criminal Miscellaneous Application (C482 No. 917 of 2021) and, another accused Ankush Jain preferred the Criminal Miscellaneous Application (C482 No. 1701 of 2022).
15. In C482 No. 917 of 2021 which has been preferred by Dalip Kumar, the proceeding has been challenged on the ground that merely on the basis of confessional statement, he has been chargesheeted. Learned counsel for the applicant submits that the confessional statement of the applicant and other co-accused have no evidentiary value as the same is hit by Section 25 and 26 of the Evidence Act. Learned counsel for the applicant also submits that the accused Dalip Kumar, by profession, is a businessman and is paying income tax regularly and is partner of one partnership firm M/s Balaji Associates, having its GST registration number as 05AAOFB5527H1ZF and having principal place of business at Dehradun and the said partnership firm is engaged in the business of storage of minor minerals and granted license for Screening Plant on 5 2024:UHC:7503 29.06.2015 as well as the license for storage of minor minerals.
16. It is also submitted that there is no complaint of any kind regarding the operation of screening plant and storage of minor minerals against the said partnership firm M/s Balaji Associates wherein the applicant-Dalip Kumar is one of the partner.
17. Learned counsel for the applicant further submits that except the alleged mobile contact of the applicant Dalip Kumar with Ankush Jain, Scientist-C and the confessional statement, there is no material evidence collected by the I.O. against the applicant and he has no contact with other co-accused and there is no material which constitutes the offences punishable under the penal provisions of I.T. Act and there is no allegation against Dalip Kumar that he has fraudulently and dishonestly accessed e-Rawanna portal.
18. So far as C482 No. 1701 of 2022 is concerned, which has been filed by Ankush Jain, it is submitted by the learned counsel for the applicant that he has been implicated only on the basis of confessional statement of other co-accused. Learned counsel for the applicant also submits that the applicant Ankush Jain was initially working in National Informatics Centre under the Ministry of Electronics and Information Technology, Government of India in November, 2009 on the post of Scientific Officer /Engineer and thereafter he was promoted as Scientist B and Scientist C in the year 2013 and 2017 respectively, which is a Group 'A' gazetted post.
19. He also submits that the said applicant was posted at NIC Uttarakhand State Unit, Secretariat Dehradun from 6 2024:UHC:7503 17.11.2009 to 24.09.2021 and thereafter, transferred to NIC Delhi in e-Transport MMP Project at NIC Headquarter, New Delhi. Learned counsel for the applicant also submits that after submission of the chargesheet against other co- accused persons and on further investigation the Investigating Officer collected the laptop and router from the applicant Ankush Jain and during investigation, he has informed to the Investigation Officer that mining lease I.D. creation rights lies with the District Mining Officer and user credentials to access e-Rawanna lies with District Mining Officer and the e-Rawanna are generated in e-Rawanna portal by user I.D. of mine owner which is created by user I.D. of District Mining Officer through his user credentials in the e-Rawanna portal. The applicant never accessed e- Rawanna portal and District Mining Officer never shared his user credentials with the applicant Ankush Jain to access e- Rawanna portal.
20. Learned counsel for the applicant submits that the Investigating Officer without collecting any material evidence or obtaining FSL report with respect to the laptop and router, submitted the chargesheet which is based only on the confessional statement of the accused persons.
21. Apart from this, learned counsel for the applicant further submits that the applicant is innocent and without mandatory compliance of Section 197 CrPC, the Magistrate took cognizance, though he is a public servant serving as gazetted officer in the Central Government department and the prosecution against him could only be initiated after obtaining sanction from the concerned authority.
22. He also submits that without giving any evidence, the chargesheet has been submitted against the accused 7 2024:UHC:7503 Ankush Jain that he has unauthorisedly accessed e- Rawanna portal and it is absolutely incorrect to say that accused Dalip Kumar, at any point of time contacted to the accused Ankush Jain.
23. It is also submitted that the chargesheet is completely defective as the same has been filed without collecting any scientific evidence and FSL report and hence no case is made out against the applicant and the entire proceeding initiated against the accused persons are abuse of process of law and is liable to be quashed.
24. He also submits that there is specific averment that without collecting evidence, the chargesheet has been field; however, there is no specific denial in the counter affidavit and only on suspicion a confessional statement of the co- accused the chargesheet has been filed.
25. In both the Applications, the learned counsel for the applicant submits that entire proceeding is vitiated also on the ground that the offences as alleged are covered by the Information Technology Act, which is a special enactment and by virtue of Section 81 of the I.T. Act, since it has overriding effect over any other law, which is a complete code and are punishable under Section 66 of the I.T. Act, therefore, the entire proceeding is vitiated as the offences as alleged are punishable under Section 66 of the I.T. Act and hence, no offence is made out, which are punishable under the penal provisions of the Indian Penal Code.
26. It is submitted by the learned counsel for the applicant that the allegation regarding unauthorised access, downloading, altering and destroying the data in computer network would be an offence described under Section 8 2024:UHC:7503 43(1)(a)(b)(i) of Information Technology (Amendment) Act, 2008, which is punishable under Section 66 of the Act, therefore, no offence is made out which are punishable under Sections 201, 420, 467, 468, 471 and 120B IPC and hence, the entire criminal proceedings initiated against the present applicants are illegal and amount to an abuse of process of law and is liable to be quashed.
27. The respondents filed their counter affidavit and a preliminary objection has been raised that the proceeding sought to be quashed are on factual grounds and the same cannot be gone into a petition filed under Section 482 CrPC and during the investigation, the concrete evidence were collected and the chargesheet has been filed and the learned trial Court rightly summoned the present applicant and while entertaining the petition under Section 482 CrPC, the mini trial is not permissible as the same is subjected to judicial scrutiny and subject matter of trial.
28. Mr. Pratiroop Pandey, learned AGA for the State submits that the applicant Ankush Jain was the custodian of password/user id and the same was misused by him by illegally accessing the e-rawanna portal by creating forged invoices from his house. The statement of Inspector, Pankaj Pokhriyal, the Inquiry Officer, Smt. Rashmi Pradhan, Nodal Officer/complainant (now deceased), Anuj Kaprawan and one Anil Kumar Arya, Technical Director, NIC Uttarakhand, Dehradun have also been enclosed in the counter affidavit.
29. It is also submitted by the learned AGA for the State that the other co-accused i.e. Dalip Kumar is the beneficiary; however, the role of the applicant Ankush Jain was much graver as he was found to be main accused, who actually committed forgery.
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30. Apart from this, Mr. Pratiroop Pandey, learned AGA also submits that though the alleged offences are covered under the special Act, even then there is no complete bar for initiating the proceedings under the provisions of Indian Penal Code. He also submits that even in the absence of FSL report and scientific evidence, the present applicant can be convicted under the charged sections based on the statement of other witnesses and the chargesheet, at this stage, cannot be treated to be a defective one and even after collecting the FSL report at the later stage, the prosecution can file supplementary chargesheet under Section 173(8) CrPC.
31. To examine the issue in hand, it is necessary to give the reference of the Special Act, i.e. Information Technology Act, 2000.
32. This I.T Act, 2000 is a legislation to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper- based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, 1860, the Indian Evidence Act, 1872 etc.
33. The said Act has been brought into force from 17.10.2000. The introduction of new communication system and digital technology has necessitated the said enactment with a view to facilitate Electronic Governance. With proliferation of information technology enabled services such as e-governance, e-commerce and e-transactions, 10 2024:UHC:7503 protection of personal data and information and implementations of security practices and procedures relating to these applications of electronic communications have assumed great importance and the Enactment was necessitated in the backdrop of the security of the nation, economy, public health and safety.
34. 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.
35. Section 43 of the Information Technology Act, 2000 prescribes penalty and compensation for damage to computer and computer system needs a reproduction:--
43 [Penalty and compensation] for damage to computer, computer system, etc. -If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network,-
(a) accesses or secures access to such computer, computer system or computer network [or computer resource];
(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or 11 2024:UHC:7503 computer network including information or data held or stored in any removable storage medium;
(c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer network;
(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;
(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;
(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network,
(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means;]
(j) steal, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage;] [he shall be liable to pay damages by way of compensation to the person so affected].
Explanation.- For the purposes of this section,-
(i) "computer contaminant" means any set of computer instructions that are designed-
(a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or
(b) by any means to usurp the normal operation of the computer, computer system, or computer network;
(ii) "computer 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.] 12 2024:UHC:7503
36. 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 intentionally or knowingly causes another to conceal, destroy or alter any computer source code used for a computer, computer programme, computer system or computer network when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may extend upto two lakh rupees, or with both.
Explanation-For the purposes of this section, computer source code" means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form."
66. Computer related offences: - If any person, dishonestly or fraudulently, does any act referred to in Section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakhs rupees or with both.
Explanation-For the purposes of this section-
(a) the word "dishonestly" shall have the meaning assigned to it in Section 24 of the Penal Code, 1860.
(b) the word "fraudulently" shall have the meaning assigned to it in Section 25 of the Penal Code, 1860".
37. The distinction between Section 43 and 66 is very succinct. All the acts which are covered within the purview of Section 43 if committed dishonestly and fraudulently are made punishable under Section 66 with an imprisonment for a term which may extend to three years or with fine. It is relevant to note that the word "dishonestly" and "fraudulently" is assigned the same meaning as in Section 24 and 25 of the Penal Code, 1860 respectively. The offences under the Information Technology Act, 2000 are compoundable and the offences which are punishable with imprisonment of three years and above are bailable and cognizable. Another important provision contained in the said enactment is Section 81 which reads thus:--
"81. Act to have overriding effect : - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force:
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)."13
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38. In the backdrop of the scheme of the enactment the contention of the rival parties will have to be examined.
39. Learned counsel for the applicant submits that since by virtue of Section 81 of the Information Technology Act, it has overriding effect over any other law and is a complete Code and the allegations regarding unauthorised access, downloading, altering and destroying the data in computer network would be an offence described under Section 43(1)(a)(b)(i) of the Information Technology (Amendment) Act, 2008 which is also punishable under Section 66 of the Act, therefore, no offences punishable under Sections 120B, 201, 420, 467, 468, 471 IPC are made out against the present applicant.
40. In support of his argument, learned counsel for the applicant placed reliance on a judgment of Hon'ble Supreme Court in the case of Sharat Babu Digumarti (supra), and it is his submission that the criminal proceedings against the applicants 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 applicants. It is the submission of the learned counsel that the offences under the Information Technology Act are compoundable and bailable. He would invite attention of this Court to Section 77A and 77B of the Act of 2000. His precise submission is that by invoking and applying the provisions of the Penal Code, 1860, attempt is made to deprive them of benefit of bail and compounding, which is available under the I.T. Act, 2000. The learned counsel would submit that in light of the binding precedent laid down by the Hon'ble Apex Court in the aforesaid judgment Sharat Babu Digumati (Supra), the provisions of 14 2024:UHC:7503 the Information Technology Act has been given an overriding effect to cover criminal acts contained in the Penal Code, 1860 and this law which is a special law must prevail over the general law and therefore invocation of provisions of Penal Code, 1860 against the applicants in the facts of the case is ex facie, erroneous and without jurisdiction. Learned counsel for the applicant submits that the continuation of the proceedings against the applicants under the provisions of the Penal Code, 1860 is nothing but abuse of process of law and therefore he would pray for quashing of the criminal proceedings only to the extent of invocation and application of the offences punishable under the Penal Code, 1860.
41. I have gone through the said judgment, wherein the Hon'ble Apex Court 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 Penal Code, 1860.
In the said case, i.e. Sharat Babu Digumarti (supra) 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 Penal Code, 1860 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. In the backdrop of the said facts the Hon'ble Apex Court observed thus:--
30. In this regard, we may reproduce Section 81 of the IT Act, which is as follows:--
"81. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.15
2024:UHC:7503 Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act 1957 or the Patents Act 1970."
The proviso has been inserted by Act 10 of 2009 w.e.f. 27.10.2009.
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 67-A and 67-B 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 Sherya Singhal and we concur with the same.
32. Section 81 of the IT Act 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.
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 authorities referred to hereinabove, we are of the considered opinion that 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 IPC.
42. On reading of the said judgment, the Hon'ble Supreme Court considered the effect of the overriding provisions contained in the Information Technology Act and has observed that all the provisions in the enactment are of significance particularly if the alleged offences pertain to electronic record.
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43. It has been observed in the said judgment that Information Technology Act is special enactment and it contain special provision.
The Hon'ble Apex Court also considered the effect of Section 79 contained in the Information Technology Act which is enacted for a specific purpose and has observed that the mandate behind Section 81 of the Information Technology Act needs to be understood in its proper perspective. The said judgment also referred to the earlier precedents on the point where a special statute is pitted against a General enactment and thereafter has concluded by making reference of Section 79 and 81 of the Information Technology Act that once the special provisions are accorded overriding effect to cover a criminal Act, the offender gets out of the purview of the Indian Penal Code, 1860.
44. It is well known principle of law that a prior general Act may be effected by a subsequent particular or a special Act. In the principles of statutory interpretation by justice G.P. Singh 13th Edition 2012 the aforesaid principle is culled out in the following manner:--
"A prior general Act may be effected by a subsequent particular or a Special Act, if the special matter of particular Act prior to its enforcement was being governed by the general provision of the earlier Act. In such a case the operation of the particular Act may have the effected of parallel rebelling the general Act or curtailing its operation or added conditions to its operation for the particular cases.
A general Act operation may be curtailed by a latter special Act even if the general Act contained a nonobstante clause. The curtailment of the general Act will be more readily inferred with the latter special Act also containing an overriding non-obstante provision.
45. The well know principle of 'generalia specialibus general non-derogant' which is to be invoked in case of conflict between a specific provision and general provision 17 2024:UHC:7503 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. 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 far as the activity of levy of purchase tax on sugarcane was concerned both the Acts operated in the same field. As the Sugarcane Act was a special Act the rule that 'general provision should yield to special provision' was applied and it was held that purchase tax on sugarcane could be levied only under the sugarcane Act and not under the Finance Act. On the same principle it was also held in another case that dealings in sugarcane were exclusively regulated by the Sugarcane Act and its provisions excluded the operation of the Bihar Agricultural Produce Markets Act, 1980 which was a general Act for regulating sale and purchase of all types of agricultural produce.
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46. Further in case of Yakub Abdul Razak Memon v. State of Maharashtra (2013) 13 SCC1, 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 contained in the earlier Act, it would be presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one.
1519. The basic rule that a general provisions should yield to the specific provisions is based on the principle that if two directions are issued by the competent authority, one covering a large number of matters in general and another to only some of them, his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier directions must be given effect to.
1520. It is a settled legal proposition that while passing a special Act, the legislature devotes its entire consideration to a peculiar subject. Therefore, when a general Act is subsequently passed, it is logical to presume that the legislature has not repealed or modified the former special Act unless an inference may be drawn from the language of the special Act itself.
1521. In order to determine whether a statute is special or general one, the court has to take into consideration the principal subject- matter of the statute and the particular perspective for the reason that for certain purposes an Act may be general and for certain other purposes it may be special and such a distinction cannot be blurred.
1522. Thus, where there is inconsistency between the provisions of two statutes and both can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment of the legislature conveyed by the language of the relevant provisions therein. (Vide Ram Narain v. Simla Banking and Industrial Co. Ltd. [AIR 1956 SC 614], J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P. [AIR 1961 SC 1170], Kumaon Motor Owners' Union Ltd. v. State of U.P. [AIR 1966 SC 785], Sarwan 19 2024:UHC:7503 Singh v. Kasturi Lal [(1977) 1 SCC 750], U.P. SEB v. Hari Shankar Jain [(1978) 4 SCC 16 : 1978 SCC (L&S) 481], LIC v. D.J. Bahadur [(1981) 1 SCC 315 : 1981 SCC (L&S) 111], Ashoka Mktg. Ltd. v. Punjab National Bank [(1990) 4 SCC 406 : AIR 1991 SC 855] and T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC 481].)
47. Further, in case of Jeevan Kumar Raut v. Central Bureau of Investigation, (2009) 7 SCC 526, on which reliance has been placed by the Hon'ble Apex Court in 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 the Transplantation of Human Organs Act, 1994 (TOHO) but also the Penal Code, 1860. 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 thereunder and take appropriate action. The appropriate authority, subject to exceptions provided for in TOHO, thus, is only authorised to investigate cases of breach of any of the provisions thereof, whether penal or otherwise.
22. TOHO being a special statute, Section 4 of the Code, which ordinarily would be applicable for investigation into a cognizable offence or the other provisions, may not be applicable. Section 4 provides for investigation, inquiry, trial, etc. according to the provisions of the Code. Sub-section (2) of Section 4, however, specifically provides that offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences.20
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26. It is a well-settled principle of law that if a special statute lays down procedures, the ones laid down under the general statutes shall not be followed. In a situation of this nature, the respondent could carry out investigations in exercise of its authorisation under Section 13(3)(iv) of TOHO. While doing so, it could exercise such powers which are otherwise vested in it. But, as it could not file a police report but a complaint petition only; sub-section (2) of Section 167 of the Code may not be applicable.
27. The provisions of the Code, thus, for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO."
48. In another judgment in the case of Independent Thought v. Union of India, (2017) 10 SCC 800, where the question posed before the Apex Court was about the exception 2 to Section 375 and as to whether a man committing sexual intercourse or acts with his wife aged between 15 and 18 years is exempted from offence of rape, their lordships also decided whether the provisions of Juvenile Justice Act would prevail against the POSCO Act, the Hon'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 adverted to some decisions relating to the interpretation of Article 15(3) of the Constitution in a manner that is 21 2024:UHC:7503 affirmative, in favour of children and for children and we have also adverted to the discussion in the Constituent Assembly in this regard. There can therefore be no other opinion regarding the pro-child slant of the JJ Act as well as the POCSO Act.
100. Prima facie it might appear that since rape is an offence under IPC (subject to Exception 2 to Section 375) while penetrative sexual assault or aggravated penetrative sexual assault is an offence under the POCSO Act and both are distinct and separate statutes, therefore there is no inconsistency between the provisions of IPC and the provisions of the POCSO Act. However the fact is that there is no real distinction between the definition of "rape" under IPC and the definition of "penetrative sexual assault" under the POCSO Act. There is also no real distinction between the rape of a married girl child and aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. Additionally, the punishment for the respective offences is the same, except that the marital rape of a girl child between 15 and 18 years of age is not rape in view of Exception 2 to Section 375 IPC. In sum, marital rape of a girl child is effectively nothing but aggravated penetrative sexual assault and there is no reason why it should not be punishable under the provisions of IPC. Therefore, it does appear that only a notional or linguistic distinction is sought to be made between rape and penetrative sexual assault and rape of a married girl child and aggravated penetrative sexual assault. There is no rationale for this distinction and it is nothing but a completely arbitrary and discriminatory distinction.
49. 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.
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50. Keeping the aforesaid authoritative pronouncements in mind, if the scheme of the Information Technology Act will have to be examined and given effect too. The said Act which is a special enactment so as to give fillip to the growth of electronic based transactions, and to provide legal recognition for E-commerce and, to facilitate E- Governance and to Ensure Security Practice and Procedures in the context of the use of Information Technology Worldwide. The said enactment contains a full fledge mechanism for penalising certain acts which are committed without permission of the owner or any other persons who is in charge of a computer, computer system, or computer network and those acts are enumerated in Section 43.
51. The said enactment also makes certain acts punishable and Chapter-XI of the Information Technology Act 2000 enumerates such acts. The same acts which are enumerated in Section 43 of the enactment which would invite penalty and compensation for accessing or securing any information as contemplated in Section 43, would amount to an offence under Section 66 if any person, dishonestly, fraudulently commits such an act. The said Section has an explanation appended to it to the effect that the word "dishonestly" and "fraudulently" used in the said Section will be assigned the same meaning as under
the Penal Code, 1860. In such circumstances when the Information Technology Act, 2000 specifically provides a mechanism for dealing with an act covered in Section 43(a) and (j):--
"Section 43(a) Accesses or secures access to such computer, computer system or computer network (or computer resource); 43(j) Steel, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage."
and if this is done with a fraudulent or dishonest intention, it becomes an offence under Section 66 of the Information Technology Act. Since, the Information Technology Act deals with 23 2024:UHC:7503 the use of means of electronic communication and has evolved a complete mechanism in itself to deal with the offences in the use of electronic transactions, and in the backdrop of the specific facts of the case in hand, Section 66 would be attracted and in view of the mechanism contained in the said section, the invocation of the provisions of the Penal Code, 1860 is highly unwarranted. This view has already been authored by their lordships in case of Sharat Babu Digumarti (Supra).
52. The Hon'ble Apex Court in the case of Sharat Babu Digumarti (supra) also referred the judgment in the case of Solidaire India Ltd. v. Fairgrowth Financial Services Ltd., (2001) 3 SCC 71, wherein the Hon'ble Supreme Court dealing with two special statutes, namely, Section 13 of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 and Section 32 of the Sick Industrial Companies (Special Provisions) Act, 1985 and 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 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.' Thus, on perusal of the judgment rendered by the Hon'ble Apex Court in the case of Sharat Babu Digumarti (supra) wherein it is observed that once the special provisions having the overriding effect to a criminal act, then the offender gets out of the net of IPC.
53. Learned counsel for the applicant submits that the law declared by the Hon'ble Apex Court in the case of Sharat Babu Digumarti (supra) still holds a good law and has been recently followed by the Hon'ble Apex Court in the matter of Apoorva Arora and Another Vs. State (Government of NCT of Delhi and another), (2024) 6 SCC 181.
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54. Apart from this, learned counsel for the applicant also argued that the applicants have been implicated and chargesheeted only on the basis of confessional statement which itself vitiate the entire proceeding since confession of co-accused without any other evidence has no relevance and no trial can succeed simply on the basis of confessional statement of the co-accused. In reference to this, he has placed reliance on the judgment rendered by the Hon'ble Apex Courtin the case of Surinder Kumar Khanna Vs. Intelligenc Officer, Directorate of Revenue Intelligence, (2018) 8 SCC 271. Para 11 of the said judgment is extracted herein as below:-
"11. The law laid down in Kashmira Singh [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] was approved by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar [Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 wherein it was observed: (Haricharan case [Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623, AIR p. 1188, para 12) "12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty [Emperor v. Lalit Mohan Chuckerbutty, ILR (1911) 38 Cal 559 at p. 588.] a confession can only be used to "lend assurance to other evidence against a co-accused". In Periaswami Moopan, In re [Periaswami Moopan, In re, 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77.] Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad) '...where there is evidence against the co- accused sufficient, if believed, to support his conviction, then the kind of confession described in 25 2024:UHC:7503 Section 30 may be thrown into the scale as an additional reason for believing that evidence.' In Bhuboni Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC) '... a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.' It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section
30. The same view has been expressed by this Court in Kashmira Singh v. State of M.P. 1952 SCR 526 where the decision of the Privy Council in Bhuboni Sahu case 1949 SCC OnLine PC 12 has been cited with approval."
55. Per contra, Mr. Pratiroop Pandey, learned AGA for the State, though have not disputed the law laid down by the Hon'ble Apex Court in the case of Sharat Babu Digumarti (supra) which was further followed in the case of Apoorva Arora and Another (supra); however, he placed reliance on the judgement rendered by the Delhi High Court in the case of Kishan Lal Vs. State, 1989(17) DRJ and submits that merely on the ground that there is no scientific 26 2024:UHC:7503 evidence and the FSL report, the proceedings cannot be vitiated and the prosecution have still an opportunity to file a supplementary chargesheet.
56. This judgment, in my opinion, is not applicable to the present case particularly, in the light of the direct pronouncement by the Hon'ble Apex Court in the case of Sharat Babu Digumarti (supra).
57. In the present case, admittedly the First Information Report was lodged for the offences punishable under Sections 66 and 66C of the Information Technology (Amendment) Act, 2008; however, after investigation the chargesheet has been filed for other provisions of the Indian Penal Code also i.e. Sections 120B, 201, 420, 467, 468 and 471 IPC.
58. At this juncture, it has to be examined that initially the FIR was lodged under the Information Technology (Amendment) Act, 2008, therefore, until and unless the respondents proceed with the special Act, how the Investigating Officer draw a conclusion that prima facie the offences are made out against the applicant which are punishable under the penal provisions of Indian Penal Code. As held by the Hon'ble Apex Court in the case of Sharat Babu Digumarti (supra) that once the special provision contained under the Special Act i.e. Information Technology Act having overriding effect to cover a criminal act, then how the respondents have proceeded with the investigation under the penal provisions of Indian Penal Code.
59. The entire investigation is based upon the First Information Report and whatever the allegations are alleged in the First Information Report, that covers under 27 2024:UHC:7503 the Special Act and in view of Sections 79 and 81 of the Information Technology Act, the Special Act having overriding effect to cover a criminal act. All the offences which are punishable under the penal provision of IPC, in which the chargesheet has been filed against the present applicant, would certainly attract the punishment provided under Section 66 of the Information Technology Act.
60. If we go by Section 43 read with Section 66 of the Information Technology Act, then it clearly reveals that the ingredients of the offences punishable under Sections 201, 420, 467, 468, 471 of IPC are covered by these provisions and hence prosecuting the applicant in both the Acts i.e. Indian Penal Code, 1860 and the Information Technology Act, 2000 would certainly be a brazen violation on the protection against double jeopardy.
61. Apart from this, the chargesheet itself reveals that the same was filed without getting FSL report. The learned counsel for the applicant submits that there was no any justification to file the chargesheet since the FSL report was still awaited, therefore, on this account also, the chargesheet cannot sustain.
62. Thus, in view of the discussions as made in the preceding paragraphs, this Court comes to the conclusion that if the special enactment in the form of Information Technology Act contains a special mechanism to deal with the offences falling within the purview of Information Technology Act, then the invocation of an application of the provisions of IPC 1860, being applicable to the same set of facts is totally uncalled for and amounts to an abuse of process.
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63. Though Mr. Pratiroop Pandey, learned AGA for the State vehemently argued that prosecution under the provisions of the Indian Penal Code, 1860 can be continued and it is for the trial Court to determine the provision of which enactments are attracted and it is too premature to exclude the offences under the penal provisions of Indian Penal Code, 1860.
64. I am not accepting such submissions and the contentions as raised by Mr. Pratiroop Pandey, learned AGA for the State, specifically in the light of the observations of the Hon'ble Apex Court in the case of Sharat Babu Digumarti (supra) which still holds a good law as followed in the case of Apoorva Arora and Another (supra).
65. Since the Information Technology Act, 2000 is a special enactment which, in fact, is a complete code in itself and deals with aspects of electronic data and computer system and it also contains the provisions for prescribing penalty and compensation and it also requires an able investigation keeping in mind the purpose of the enactment and to nab the new venturing of crimes with the assistance of the technology, therefore, in such circumstances, I am inclined to allow the present Application preferred under Section 482 CrPC.
66. Accordingly, both the C482 Applications are allowed.
67. The proceedings of Criminal Case No. 1417 of 2022, State Vs. Ankush Jain, as well as the proceedings of Criminal Case No. 2375 of 2021, State Vs. Anul Pal and Another, pending in the Court of Judicial Magistrate-II, Dehradun are hereby quashed.
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68. While quashing the aforesaid proceedings, I leave it to the discretion of the authorities to decide in which direction the investigation pursuant to the FIR No. 0019 of 2020, registered at P.S. Cyber Police Station, Dehradun is to be proceeded, particularly when the allegation as alleged in the FIR falls within the ambit of the Special Act i.e. Information Technology Act, which contains special mechanism to deal with the offences and a complete code itself, as well as in view of the mandate of Section 81 of the Act which have overriding effect to cover a criminal act.
69. Let a copy of this judgment be placed in the file of both the matter.
___________________________ Rakesh Thapliyal, J.
Dt: 08.10.2024 Mahinder/ 30