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Showing contexts for: section 292 ipc in Devendra Rameshchandra Jain vs The State Of Maharashtra And Others on 15 April, 2024Matching Fragments
5. However, the decision in Sharat Babu Digumarti was commented in following words :-
"28. Sharat Babu Digumarti v. State (NCT of Delhi), (2017) 2 SCC 18 is a judgment dealing with obscenity in the electronic form. This Court has held that the IT Act is a special enactment. Since the offence has nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. Section 292 IPC makes sale of obscene books as an offence which cannot be made out in view of special provision made in the IT Act. The said judgment is, that an offence pertaining to electronic record falls within Section 67 of the IT Act, whereas, Section 292 IPC deals with an offence of obscenity in the printed format, therefore, two offences operate in different fields."
6. With this preface, we turn to the questions referred to us. There are plethora of judgments wherein the Supreme Court and the High Courts have been called upon to face similar fact situations concerning interplay between the provisions defining the acts which amount to the offences contained in the special statute vis a vis the offences defined under the general law i.e. the Indian Penal Code, where these offences under different statutes are similar.
7. In the matter of Sharat Babu Digumarti, the allegations were in respect of transmission of obscene material in electronic form wherein section 292 of the Indian Penal Code was invoked and by 5 Cri. Appln. 2562-2019-FB-Ref referring to the provision fo section 79 and 81 of the IT Act, it was held that since IT Act is a latter enactment and section 67 of the IT Act makes publication and transmission of the obscene material in electronic form punishable, the accused would come out of the net of section 292 of the Indian Penal Code. The issue before the Supreme Court was as to whether the appellant who was discharged of section 67 of the IT Act could be proceeded under section 292 of the Indian Penal Code. In the context of such an issue, following were the observations :-
"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 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."
8. By referring to paragraph no. 10 from the Solidaire India Ltd. Vs. Fairgrowth Financial Services Ltd.; (2001) 3 SCC 71, following conclusion was drawn in paragraph no. 37 :
"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 6 Cri. Appln. 2562-2019-FB-Ref overriding effect do cover a criminal act and the offender, he gets out of the net of IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission are 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." (emphasis supplied)