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Showing contexts for: section 292 penal code in Gagan Harsh Sharma And Anr vs The State Of Maharashtra And Anr on 26 October, 2018Matching Fragments
9. In the backdrop of the scheme of the enactment the claim of the rival parties will have to be examined.
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 N.S. Kamble page 16 of 45 jud-917-wp-4361-2018 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 the charge. With this issue he approached the Apex Court and the question for consideration before the Hon'ble Apex Court was whether the appellant who has been discharged under Section 67 of the Information Technology Act could be proceeded under Section 292 of the Indian Penal Code. The Hon'ble Apex Court also examined whether an activity emanating from electronic form which may be obscene would be punishable under Section 292 of the Indian Penal Code or 67 of the Information Technology Act or both or any other provision of the Information Technology Act. In the backdrop of the said facts the Hon'ble Apex Court observed thus :-
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.
N.S. Kamble page 18 of 45
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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.
11. Reading of the said judgment, makes is clear that the Hon'ble Apex Court had 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 N.S. Kamble page 19 of 45 jud-917-wp-4361-2018 particularly if the alleged offences pertains to electronic record. By observing that the Information Technology Act is a special enactment and it contain special provision, the Hon'ble Apex Court has 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. It 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 Section 79 and 81 that once the special provisions are accorded overriding effect to cover a criminal Act, the offender gets out of the net of the Indian Penal Code and in the case in hand of Section 292.