TMI Blog2016 (12) TMI 1821X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial and specific purpose which motivated the enactment of Section 14-A and Chapter III-A of the Delhi Rent Act would be wholly frustrated if the provisions of the Slum Clearance Act requiring permission of the competent authority were to prevail over them. Therefore, the newly introduced provisions of the Delhi Rent Act must hold the field and be given full effect despite anything to the contrary contained in the Slum Clearance Act. 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 Indian Penal Code 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agged with Ebay India Pvt. Ltd. v. State and Anr. (Criminal Appeal No. 1484 of 2009). The said appeals were heard along with other appeals that arose from the lis relating to interpretation of Sections 138 and 141 of the Negotiable Instruments Act, 1881 (for short, NI Act ) by a three-Judge Bench as there was difference of opinion between the two learned Judges in Aneeta Hada v. Godfather Travels and Tours (P) Ltd. (2008) 13 SCC 703. 4. Regard being had to the pleas raised by Avnish Bajaj and also the similarity of issue that arose in the context of NI Act, the three-Judge Bench stated the controversy that emerged for consideration thus: 2. In Criminal Appeals Nos. 1483 and 1484 of 2009, the issue involved pertains to the interpretation of Section 85 of the Information Technology Act, 2000 (for short the 2000 Act ) which is in pari materia with Section 141 of the Act. Be it noted, a Director of the Appellant Company was prosecuted Under Section 292 of the Penal Code, 1860 and Section 67 of the 2000 Act without impleading the Company as an accused. The initiation of prosecution was challenged Under Section 482 of the Code of Criminal Procedure before the High Court and the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. 7. Interpreting the same, the Court opined thus: 64. Keeping in view the anatomy of the aforesaid provision, our analysis pertaining to Section 141 of the Act would squarely apply to the 2000 enactment. Thus adjudged, the Director could not have been held liable for the offence Under Section 85 of the 2000 Act. Resultantly, Criminal Appeal No. 1483 of 2009 is allowed and the proceeding against the Appellant is quashed. As far as the Company is concerned, it was not arraigned as an accused. Ergo, the proceeding as initiated in the existing incarnation is not maintainable either against the company or against the Director. As a logical sequitur, the appeals are allowed and the proceedings initiated against Avnish Bajaj as well as the Company in the present form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted by Dr. Singhvi that the Appellant could not have been proceeded Under Section 292 Indian Penal Code 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 Indian Penal Code. 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 Indian Penal Code. 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 Indian Penal Code, 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 Indian Penal Code 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 Indian Penal Code after discharge from Section 67 of the IT Act. Learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either description for a term which may extend to three months, or with fine, or with both. Exception.--This Section does not extend to any book, pamphlet, paper, writing, drawing or painting kept or used bona fide for religious purposes or any representation sculptured, engraved, painted or otherwise represented on or in any temple, or on any car used for the conveyance or idols, or kept or used for any religious purpose. 15. The constitutional validity of Section 292 Indian Penal Code was challenged in Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881. Assailing the constitutional validity, it was urged before the Constitution Bench that the said provision imposes incompatible and unacceptable restrictions on the freedom of speech and expression guaranteed Under Section (sic Article) 19(1)(a) of the Constitution. The Constitution Bench opined as follows: 7. No doubt this Article guarantees complete freedom of speech and expression but it also makes an exception in favour of existing laws which impose restrictions on the exercise of the right in the interests of public decency or morality. The Section of the Penal Code in dispute was introduced by the Obscene Publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this sense and cannot thus be said to be invalid in view of the second Clause of Article 19. 16. Eventually, the Court upheld the constitutional validity of the said provision. After the pronouncement by the Constitution Bench, the legislature amended Section 292 which presently reads thus: 292. Sale, etc., of obscene books, etc.--(1) For the purposes of Sub-section (2), book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. (2) Whoever-- (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Penal Code or Section 67 of the IT Act or both or any other provision of the IT Act. 18. On a perusal of material on record, it is beyond dispute that the alleged possession of material constitutes the electronic record as defined Under Section 2(1)(t) of the IT Act. The dictionary Clause reads as follows: Section 2(1)(t). electronic record means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche; Thus, the offence in question relates to electronic record. 19. In Shreya Singhal v. Union of India (2015) 5 SCC 1, the Court was dealing with constitutional validity of Section 66-A of the IT Act and the two-Judge Bench declared the said provision as unconstitutional by stating thus: 85. These two cases i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restrictive view of what would pass muster as not being obscene. The Court followed the test laid down in the old English judgment in R. v. Hicklin (1868) LR 3 QB 360 which was whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. Great strides have been made since this decision in the U.K., the United States as well as in our country. Thus, in Directorate General of Doordarshan v. Anand Patwardhan (2006) 8 SCC 433 this Court noticed the law in the United States and said that a material may be regarded as obscene if the average person applying contemporary community standards would find that the subject-matter taken as a whole appeals to the prurient interest and that taken as a whole it otherwise lacks serious literary, artistic, political, educational or scientific value (see para 31). 49. In a recent judgment of this Court, Aveek Sarkar v. State of W.B. (2014) 4 SCC 257, this Court referred to English, US and Canadian judgments and moved away from the Hicklin (supra) test and applied the contemporary community standards test. 50. What ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees. 24. Section 67A stipulates punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form. Section 67B provides for punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form. It is as follows: 67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.-Whoever- (a) publishes or transmits or causes to be publish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act that occurs in Chapter XII dealing with intermediaries not to be liable in certain cases. Learned Counsel has also relied on Shreya Singhal (supra) as to how the Court has dealt with the challenge to Section 79 of the IT Act. The Court has associated the said provision with exemption and Section 69A and in that context, expressed that: 121. It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which provide for offences including Section 69-A. We have seen how Under Section 69-A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary. We have also seen how there are only two ways in which a blocking order can be passed--one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court. The intermediary applying its own mind to whether information should or should not be blocked is noticeably absent in Section 69-A read with the 2009 Rules. 122. Section 79(3)(b) has to be read down to mean that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded and the effect of Section 79 of the IT Act provides protection to the individual since the provision has been read down emphasizing on the conception of actual knowledge. Relying on the said provision, it is further canvassed by him that Section 79 of the IT Act gets automatically attracted to electronic forms of publication and transmission by intermediaries, since it explicitly uses the non-obstante clauses and has an overriding effect on any other law in force. Thus, the emphasis is on the three provisions, namely, Sections 67, 79 and 81, and the three provisions, according to Dr. Singhvi, constitute a holistic trinity. 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. 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. 28. Having noted the provisions, it has to be recapitulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Banking Companies Act, 1949 as amended by Act 52 of 1953, and the Displaced Persons (Debts Adjustment) Act, 1951. Section 45-A of the Banking Companies Act, which was introduced by the amending Act of 1953, and Section 3 of the Displaced Persons Act, 1951 contained each a non-obstante clause, providing that certain provisions would have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force... . This Court resolved the conflict by considering the object and purpose of the two laws and giving precedence to the Banking Companies Act by observing: It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein (p. 615) As indicated by us, the special and specific purpose which motivated the enactment of Section 14-A and Chapter III-A of the Delhi Rent Act would be wholly frustrated if the provisions of the Slum Clearance Act requiring permission of the competent authority we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 32. 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 Indian Penal Code 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 Indian Penal Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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