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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 ..... s involved in the matter. The petitioners before us are two brothers. The petitioner No. 1 is an Electronic Engineer employed as Vice President-Strategy and Business Development of M/s. Bliss GVS Pharma Ltd., India, a Pharmaceuticals Company engaged in the business of manufacturing, distribution and marketing of pharmaceuticals products across the globe. The petitioner No. 2 is a Graduate in Information Technology and a software developer undertaking activity of software development for use in the healthcare industry. The two petitioners are arraigned as accused in Crime No. 0346 of 2017 registered with Shahupuri Police Station on 27.08.2017. The First Information Report alleges that they have indulged themselves in offences punishable under Sections 408, 420 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new company namely RiteSource Pharma Solutions Pvt. Ltd. 3. In the backdrop of these facts the petitioners have approached this Court through the present petition praying for the relief sought in the petition. The learned Senior Counsel Shri. Vikram Chaudhary arguing on behalf of the petitioners would rely on a judgment of the Hon'ble Apex Court in the case of Sharat Babu Digumarti V/s. Government (NCT of Delhi) (Supra) and it is his submission that the criminal proceedings against the petitioners are misconceived. He would submit that Section 43 of the Information Technology Act, 2000 read with Section 66 is sufficient to take care of the acts alleged against the present petitioners. It is the submission of the learned Senior Counsel Shri. Chaudhary 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 bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Hon'ble Apex Court would have to be read. Shri. Gupte relied on the latest judgment of the Hon'ble Apex Court in Criminal Appeal No. 1195 of 2018 in case of The State of Maharashtra and Anr. V/s. Sayyed Hassan Sayyad Subhan and Ors. delivered on 20th September 2018. His submission is that the Hon'ble Apex Court has held that there is no bar in prosecuting the persons under the Penal Code where the offences committed are cognizable offences and merely because the provisions in the Food Safety and Security Act constitute an offence, there is no bar to prosecute them under the Indian Penal Code. In backdrop of the said judgment he would pray for dismissal of the Writ Petition. 5. During the course of the hearing of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... health and safety. 7. Perusal of the said provisions of the I.T. Act, 2000 would reveal that it provides complete mechanism for protection of data in a computer system or a computer network. The computer system is intended to cover a device or collection of devices, including input and output support devices capable of being used in conjunction with external files, containing computer programs, electronic instructions, input and output data, data storage and retrieval. The said enactment is a complete code which deals with electronic governance and confers a legal recognition on electronic records and the manner in which such records can be secured. The said Act of 2000 makes certain acts punishable in Chapter-IX and Chapter-XI of the said 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network; (iii) "computer virus" means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed or some other event takes place in that computer resource; (iv) "damage" means to destroy, alter, delete, add, modify or rearrange any computer resource by any means; (v) "computer source code" means the listing of programmes, computer commands, design and layout and 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 maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al enactment in the same statute and the latter, taken in its most comprehensive sense would override, particular enactment must be inactive and the general enactment must be taken to effect only the over parts of the statute to which it may properly apply. In case of Belsund Sugar Co. Ltd. V/s. The State of Bihar AIR 1999 SC 3125, the Hon'ble Apex Court was required to deal with one such special statute by Section 4 of the Bihar Finance Act (Act 5 of 1981), provision was made for levy of purchase tax on goods in general. Provision was also made for levy of purchase tax on sugarcane later by section 49 of the Bihar Sugarcane (Regulation of Supply and Purchase) Act (Act 37 of 1982) which 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 Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 1517. Where two statutes provide for overriding effect on the other law for the time being in force and the court has to examine which one of them must prevail, the court has to examine the issue considering the following two basic principles of statutory interpretation: 1. Leges posteriores priores contrarias abrogant (later laws abrogate earlier contrary laws). 2. Generalia specialibus non derogant (a general provision does not derogate from a special one.) 1518. The principle that the latter Act would prevail the earlier Act has consistently been held to be subject to the exception that a general provision does not derogate from a special one. It means that where the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBI. When the question arose about the procedure to be followed while investigating the said offence under the special enactment, the Hon'ble Apex Court observed thus:- "19. TOHO is a special Act. It deals with the subjects mentioned therein, viz. offences relating to removal of human organs, etc. Having regard to the importance of the subject only, enactment of the said regulatory statute was imperative. 20. TOHO provides for appointment of an appropriate authority to deal with the matters specified in sub-section (3) of Section 13 thereof. By reason of the aforementioned provision, an appropriate authority has specifically been authorised inter alia to investigate 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Sections 5 and 41 IPC. There are several reasons for this including the absence of any rationale in creating an artificial distinction, in relation to sexual offences, between a married girl child and an unmarried girl child. Statutes concerning the rights of children are special laws concerning a special subject of legislation and therefore the provisions of such subject-specific legislations must prevail and take precedence over the provisions of a general law such as IPC. It must also be remembered that the provisions of the JJ Act as well as the provisions of the POCSO Act are traceable to Article 15(3) of the Constitution which enables Parliament to make special 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in any law for the time being in force', 'is sometimes appended in a Section or is included in an enactment which would give the provision or the Act an overriding effect over the provision or the Act mentioned in the non-obstante clause. The non-obstante clause may be used as legislative device to modify the ambit of the provision or law mentioned in the non-obstante laws or to override in specified circumstances. The phrase 'notwithstanding anything in' is used in contradiction to the phrase 'subject to', the latter conveying the idea of the provision yielding placed to another provision or other provisions to which it is made subject 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 penalis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itute an offence under the Indian Penal Code and at the same time under any other law and in the said case under the Food and Safety Standards Act, 2006. The facts involved revealed that a notification was issued on 18.07.2013 by the Commissioner Food Safety and Drug Administration, Government of Maharashtra under Section 30 prohibiting manufacture, storage, distribution or sale of tobacco Areca nut and gutka/panmasala etc. The facts of the said case would reveal that First Information was registered for transportation and sale of gutka and panmasala and thereby invoking offences punishable under Section 26 and 30 of the FSS Act and also Section 188, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no man shall be put in jeopardy twice for one and the same offence. The manifestation of the said rule no doubt finds place in Section 26 of the general clauses Act, 1897 which reads thus:- "Provision as to offences punishable under two or more enactments-where an act of omission constitutes of offences under two or more enactments, offender shall be liable to be prosecuted and punish under either or any of these enactments that he shall not be liable to be punished twice in the said enactment'. Article 20(2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once. To attract 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Jeffers v. United States [53 L Ed 2d 168: 432 US 137 (1977)] .)' 27. The expressions 'the same offence', 'substantially the same offence', 'in effect the same offence' or 'practically the same', have not done much to lessen the difficulty in applying the tests to identify the legal common denominators of 'same offence'. Friedland in Double Jeopardy (Oxford 1969) says at p. 108: 'The trouble with this approach is that it is vague and hazy and conceals the thought processes of the court. Such an inexact test must depend upon the individual impressions of the Judges and can give little 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) Ordinan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 offence of Section 379 in terms of technology is also covered under Section 43. Further, as far as Section 408 is concerned which relates to criminal breach of trust, by a clerk or servant who is entrusted in such capacity with the property or with any dominion over property, would also fall within the purview of Section 43 would intents to cover any act of accessing a computer by a person without permission of the owner or 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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