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TMI Blog2018 (10) TMI 1832X X X X Extracts X X X X X X X X Extracts X X X X ..... h Act is done dishonestly and fraudulently it would attract the punishment under Section 66 of the Information Technology Act, such Act being held to be an offence. The ingredients of dishonesty and fraudulently are the same which are present if the person is charged with Section 420 of the Indian Penal Code. The ingredients of an offences under which are attracted by invoking and applying the Section 420, 408, 379 of the Indian Penal Code are covered by Section 66 of the Information Technology Act, 2000 and prosecuting the petitioners under the both Indian Penal Code and Information Technology Act would be a brazen violation of protection against double jeopardy. n such circumstances if the special enactment in form of the Information Technology Act contains a special mechanism to deal with the offences falling within the purview of Information Technology Act, then the invocation and application of the provisions of the Indian Penal Code being applicable to the same set of facts is totally uncalled for - it is not permissible to merely undergo the rigmarole of investigation although it is not open for the Investigating Officer to invoke and apply the provisions of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 of the Indian Penal Code and also offences under Sections 43, 65 and 66 of the Information Technology Act, 2000. The FIR is registered on a complaint filed by one Shadab Abdul Shaikh, an employee of M/s. Manorama Infosolutions Pvt. Ltd., Kolhapur in the capacity as Human Resources Head. It is alleged in the said complaint that M/s. Manorama Infosolutions Pvt. Ltd., Kolhapur, is a company engaged in the activity of developing healthcare softwares for Hospital management and is involved in development and distribution of the said software. It is alleged that the company has engaged 171 employees. Every employee at the time of his recruitment is duty bound to submit an undertaking/bond to the company that he will not disclose any details of the work of the company, source code or any information about software to any other company while in service or after service in relation to the health care software development. The complainant who is entrusted with the supervision of the employees work is duty bound to ensure that there is no violation of the bond/undertaking given by the employees and it is alleged that while he was scrutinizing the profile of one Suraj Mahajan, it is reveale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udhary that the offences under the Information Technology Act are compoundable and bailable. He would invite our attention to Section 77A and 77B of the Act of 2000. His precise submission is that by invoking and applying the provisions of the Indian Penal Code, attempt is made to deprive them of benefit of bail and compounding, which is available under the I.T. Act, 2000. The learned senior counsel would submit that in light of the binding precedent laid down by the Hon'ble Apex Court in the aforesaid judgment (Supra), the provisions of the Information Technology Act has been given an overriding effect to cover criminal acts contained in the Indian Penal Code and this law which is a special law must prevail over the general law and therefore invocation of provisions of Indian Penal Code against the petitioners in the facts of the case is ex facie, erroneous and without jurisdiction. As per Shri. Chaudhary, the continuation of the proceedings against the petitioner under the provisions of the Indian Penal Code is nothing but abuse of process of law and therefore he would pray for quashing of the criminal proceedings in the impugned C.R. 0346 of 2017 qua the petitioners only to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter, the learned counsel for the petitioner has placed on record, copy of the order passed by the Hon'ble Apex Court on 03.10.2018 in Special Leave to Appeal (CRL) 8274 of 2018 in case of the petitioner No. 1 who had approached it being aggrieved by the rejection of his Anticipatory Bail. We have perused the said order. The Hon'ble Apex Court, in the backdrop of the factum of Writ Petition No. 4361 of 2018 being filed by the petitioners before the Bombay High Court for quashing the provisions of the Indian Penal Code, has observed that since the matter was examined by the High Court whether the case is primarily under the Information Technology Act and whether Sections 408 and 420 of Indian Penal Code can be applied, made the following observations:- Having regard to the aforesaid development, since the matter is now being examined by the High Court in the aforesaid context namely, whether the case is primarily under Sections 43,65 and 66 and no case can be filed under Sections 408 and 420 of the IPC and also the petitioner has been given interim protection therein, it is not necessary to deal with the subject matter of this petition. We may record that this petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. Section 43 of 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 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 residi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... programme analysis of computer resource in any form.] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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:- 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. Provided that nothing contained in this Act shall restrict any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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. 14. In case of Ratanlal Adukia V/s. Union of India AIR-1990-SCC-104, where the facts involved reveal that Section 80 of the Railways Act 1890 substituted in 1961 provides for forum where a suit for compensation for loss of life, or personal injury too, a passenger or for loss, destruction, damage, deterioration and non delivery of the animals or goods against the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial 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 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, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to. 21. 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. 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 append ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 272, 273, 328 of Indian Penal Code. A Criminal Writ Petition was filed for quashing of the FIR's and the High Court framed two questions for consideration, namely:- a) Whether food Safety Officer can lodged complaint for offences punishable under Section IPC. b) Whether Acts complaint amounted to offence punishable under IPC. The High Court quashed the proceedings on the ground that the Food Safety Officers can proceed against the accused under the provisions of Chapter-X of the FSS Act. The High Court noted that the notification issued by the Commissioner is not an order contemplated under Chapter-X of the Indian Penal Code and there was a specific provision contained in Section 55 of the FSS Act which is a special enactment and therefore it had held that Section 188 of the Indian Penal Code is not applicable. Being aggrieved, the State of Maharashtra approached the Hon'ble Apex Court. 23. In the backdrop of this peculiar facts the Hon'ble Apex Court had disagreed with the conclusion of the High Court and was pleased to observed that the High Court has erred in holding that the action can be initiated against the defaulters only under Section 55 of the FSS Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicability of the Article 20(2) there may be second prosecution and punishment of the same offence for which the accused has been prosecuted and punish previously. A subsequent trial or prosecution and the punishment however is not barred if the ingredients of the two offences are distinct. 26. In order to attract Section 26, what is required is to ascertain whether the ingredients of offence have been same or distinct. In case of State (NCT) of Delhi V/s. Sanjay 2014-9-SCC-772, the Hon'ble Apex Court while dealing with the phrase 'same offence' was called upon to decide the question as to whether illegal mining of sand from river beds under Mines and Minerals (Development and Regulations) Act of 1957 would oust the invocation and application of provisions of Section 378 read with 379 of Indian Penal Code, observed that the mining of sand from riverbed without licenses or permit is prohibited under the MMDR Act. However, it would also constitute an offence under the provisions of the Indian Penal Code as natural resources belongs to the public and State being its trustee, the police is empowered and duty bound to lodged a FIR in Indian Penal Code and to invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are substantially the same may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissibleo?=.' Further in case of in State of Rajasthan v. Hat Singh [(2003) 2 SCC 152: 2003 SCC (Cri.) 451], a person was prosecuted for violation of prohibitory order issued by the Collector under Sections 5 and 6 of the Rajasthan Sati (Prevention) Ordinance, 1987. Against the said Ordinance, mass rally took place which led to the registration of FIRs against various persons for violation of prohibitory order under Sections 5 and 6 of the Act. Persons, who were arrested, moved a petition challenging the vires of the Ordinance and the Act. The High Court upholding the vires of the Ordinance/Act held that the provisions of Sections 5 and 6 overlapped each other and that a person could be found guilty only of the offence of contravening a prohibitory order under either Section 6(1) or Section 6(2) of the Act. The Apex Court held as under:- 14. We are, therefore, of the opinion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a person in charge of computer and/or stealing of any data, computer data base or any information from such computer or a computer system including information or data held or stored in any removable storage medium and if it is done with fraudulent and dishonest intention then it amounts to an offence. The ingredients of an offences under which are attracted by invoking and applying the Section 420, 408, 379 of the Indian Penal Code are covered by Section 66 of the Information Technology Act, 2000 and prosecuting the petitioners under the both Indian Penal Code and Information Technology Act would be a brazen violation of protection against double jeopardy. 28. In such circumstances if the special enactment in form of the Information Technology Act contains a special mechanism to deal with the offences falling within the purview of Information Technology Act, then the invocation and application of the provisions of the Indian Penal Code being applicable to the same set of facts is totally uncalled for. Though the learned APP as well as Shri. Gupte has vehemently argued that the prosecution under the provisions of the Indian Penal Code can be continued and at the time of taking ..... X X X X Extracts X X X X X X X X Extracts X X X X
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