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Showing contexts for: section 292 penal code in Sharat Babu Digumarti vs Govt Of Nct Of Delhi on 14 December, 2016Matching Fragments
Dipak Misra, J.
Leave granted.
2. The appellant along one Avnish Bajaj and others was arrayed as an accused in FIR No. 645 of 2004. After the investigation was concluded, charge sheet was filed before the learned Metropolitan Magistrate who on 14.02.2006 took cognizance of the offences punishable under Sections 292 and 294 of the Indian Penal Code (IPC) and 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 IPC, but it expressed the opinion that Avinish Bajaj, the petitioner in the said case, was not liable to be proceeded under Section 292 IPC and, accordingly, he was discharged of the offence under Sections 292 and 294 IPC. 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.
8. After the judgment was delivered, the present appellant filed an application before the trial court to drop the proceedings against him. The trial court partly allowed the application and dropped the proceedings against the appellant for offences under Section 294 IPC and Section 67 of the IT Act, however, proceedings under Section 292 IPC were not dropped, and vide order 22.12.2014, the trial court framed the charge under Section 292 IPC.
9. Being aggrieved by the order framing of charge, the appellant moved the High Court in Criminal Revision No. 127 of 2015 and the learned Single Judge by the impugned order declined to interfere on the ground that there is sufficient material showing appellant’s involvement to proceed against him for the commission of the offence punishable under Section 292 IPC. It has referred to the allegations made against him and the responsibility of the appellant and thereafter referred to the pronouncements in P. Vijayan v. State of Kerala and Anr.2 and Amit Kapoor v. Ramesh Chander and Anr.3 which pertain to exercise of revisional power of the High Court while dealing with propriety of framing of charge under Section 228 of the Code of Criminal Procedure.
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 IPC. It is submitted by Dr. Singhvi that the appellant could not have been proceeded under Section 292 IPC after having been discharged under Section 67 of the IT Act. Mr. Rohatgi, learned Attorney General assisting the Court submitted that Section 67 of the IT Act is a special provision and it will override Section 292 IPC. He has made a distinction between the offences referable to the internet and the offences referable to print/conventional media or whatever is expressed in Section 292 IPC. Mr. D.S. Mahra, learned counsel appearing for the NCT of Delhi, would contend that publishing any obscene material as stipulated under Section 67 of the IT Act cannot be confused or equated with sale of obscene material as given under Section 292 IPC, for the two offences are entirely different. It is urged by him that an accused can be charged and tried for an offence independently under Section 292 IPC even if he has been discharged under Section 67 of the IT Act. According to him, there is no bar in law to charge and try for the offence under Section 292 IPC after discharge from Section 67 of the IT Act. Learned counsel would further contend that the role of person in charge of the intermediary is extremely vital as it pertains to sale of obscene material which is punishable under Section 292 IPC and not under Section 67 of the IT Act. It is put forth by the learned counsel that the plea advanced by the appellant is in the realm of technicalities and on that ground, the order of charge should not be interfered with.
(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 IPC, we are not disposed to enter into the said arenas. We shall only restrict to the interpretative aspect as already stated. To appreciate the said facet, it is essential to understand certain provisions that find place in the IT Act and how the Court has understood the same. That apart, it is really to be seen whether an activity emanating from electronic form which may be obscene would be punishable under Section 292 IPC or Section 67 of the IT Act or both or any other provision of the IT Act.