SHARAT BABU DIGUMARTIversusGOVT. OF NCT OF DELHI

                       [2016] 8 S.C.R. 1015


                   SHARAT BABU DIGUMARTI                                A
                                 v.
                   GOVT. OF NCT OF DELHI
                (Criminal Appeal No. 1222 of 2016)
                       DECEMBER 14, 2016                                B
       [DIPAK MISRA AND PRAFFULA C. PANT, JJ,]
      Penal Code, 1860: s.292 - Offence relating to obscene
material in electronic form - Proceedings uls.67 of IT Act dropped
against appellant, but proceedings uls.292 not dropped - High
Court declined to interfere on the ground that there was sufficient
                                                                      c
material showing appellant :S- involvement to proceed against him
for commission of offence punishable u/s.292 - Whether appellant
who has been discharged uls. 67 of IT Act could be proceeded ul
s.292 - Held: Obscenity pertaining to electronic record falls under
the scheme of IT Act - IT Act is a special law - Special law shall D
prevail over the general law - Therefore, the special provisions
having overriding effect cover a criminal act and the offender, and
the appellant in the instant case would get out of the net of s.292 -
Criminal proceedings lodged against appellant quashed - Obscene
Books and Pictures Act, 1856 - Obscene Publications Act, 1925 - E
Informatfon Technology Act, 2000 - ss.2(1)(t), 67A, 678, 69, 79,
81.
      Allowing the appeal, the Court
      HELD: 1. The material on record show that the alleged
possession of material constitutes the electronic record as defined     F
under Section 2(l)(t) of the IT Act. Section 67 A 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. Section
69 provides for power to issue directions for interception or           G
monitoring or decryption of any information through any computer
resource. It also carries a penal facet inasmuch as it states that
the subscriber or intermediary who fails to comply with the
directions issued under sub-section (3) shall be punished with
                                                                        H
                                1015
1016          SUPREME COURT REPORTS                      [2016] 8 S.C.R.


 A imprisonment for a term which may extend to seven years and
   shall also be liable to fine. Section 67 clearly stipulates punishment
   for publishing, transmitting obscene materials in electronic form.
   The said provision read with Section 67 A and 67B is a complete
   code relating to the offences that are covered under the IT Act.
   Section 79 is an exemption provision conferring protection to
 B
   the individuals. Section 81 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
 C Act is a special enactment. It has special provisions. Section
   292 of the 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 IT Act cannot be
   ignored and negated. It is a special provision for a specific purpose
 D 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. [Paras 18, 24, 25, 28)(1027-D; 1031-
   A-B; 1032-C-D; 1034-F-H; 1036-A-B]
           Aneeta Hada v. Godfather Travels and Tours (P) Ltd.
 E-        (2008) 13 SCC 703; Ranjit D. Udeshi v. State of
           Maharashtra AIR 1965 SC 881: 1965 SCR 65; Shreya
           Singhal v. Union of India (2015) 5 SCC 1 : 2015 (5)
           SCR 963 - relied on.
          2. Once the special provisions having the overriding effect
 F cover a criminal act and the offender, he gets out of the net of the
   IPC and in this case, Section 292. 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
 G with obscenity in electronic form, it covers the offence under
   Section 292 IPC. 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. [Paras
   32, 34)(1037-F-G; 1038-F-G]
 H         Solidaire India Ltd. v. Fairgrowth Financial Services
  SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI                       1017


     Ltd. (2001) 3 SCC 71:2001 (1) SCR 932; Jeewan                      A
     Kumar Raut v. CBI (2009) 7 SCC 526:2009 (10) SCR
     272 - relied on
     P. Vijayan v. State of Kera/a and Am: (2010) 2 SCC 398
     : 2010 (2) SCR 78; Amit Kapoor v. Ramesh Chander
     and Anr. (2012) 9 sec 460 : 2012 (7) SCR 988;                      B
     Kameshwar Prasad State qf Bihar 1962 Supp. (3) SCR
     369; Central Prison v. Ram Manohar Lohia AIR 1960
     SC 633 : 1960 SCR 821; Devidas Ramachandra
     Tuljapurkar v. State of Maharashtra and Ors (2015) 6
     SCC 1:2015 (7) SCR 853; Sarwan Sinf{h and Anr. v.
     Kasturi Lal (1977) 1 SCC 750 : 1977 (2) SCR 421;                   c
     Talcher Municipality v. Talcher Regulated Market
     Committee (2004) 6 SCC 178 : 2004 (3) Suppl. SCR
     167 - referred to.
                       Case Law Reference
                                                                        D
       (2008) 13 sec 703               relied on      Para3
       2010 (2) SCR 78                 referred to    Para9
       2012 (7) SCR 988                referred to    Para9
       1965 SCR 65                     relied on      Para 15
                                                                        E
       2015 (5) SCR 963                relied on      Para 19
       1962 Supp. (3) SCR 369          referred to    Para20
       1960 SCR 821                    referred to    Para 20
       2015 (7) SCR 853                referred to    Para22            F
       1977 (2) SCR 421              · referred to    Para28
       2004 (3) Suppl. SCR 167         referred to    Para29
       2001 (1) SCR 932                relied on      Para 31
       2009 (10) SCR 272               relied on      Para33            G
     CRIMIN AL APPELLATE JURISDICTION: Criminal Appeal No.
1222of2016.
      From the Judgment and Order dated 31.08.2015 of the High Court
of Delhi at New Delhi in Criminal Revision Petition No. 127 of2015.
                                                                        H
1018              SUPREME COURT REPORTS                       (2016) 8 S.C.R.


 A           Dr. A. M. Singhvi, Sidharth Luthra, Sr. Ad vs., R. N. Karanjawala,
       Ms. Ruby Singh Ahuja, Karan Dev Chopra, Ms. Shradha Karol,Abhinav
       Sekhri, Nitin Saluja, Ms. Aakanksha Munjal, Milinda Shanna, Saikrishna
       Rajgopala, Ms. Julien George, Dhavish Chitkara, Vija:io: Sondhi, Saleem
       Masan, M/s. Karanjawala & Co, Advs. for the Appellant.
 B          A. K. Sanghi, R. K. Rathore, Sr. Advs., Ms. Madhvi Divan,
       Abhishek Atrey, D. S. Mahra, Ms. Nidhi Khanna, Advs. for the
       Respondent.
               The Judgment of the Court was delivered by
               DIPAK MISRA, J. 1. Leave granted.
 c
           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
 D 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 primafacie case was made out under Section 292 IPC,
 E but it expressed the opinion thatAvinish 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 primafacie 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
 F uninfluenced by the observations made in the order of the High Court.
         3. Being grieved by the aforesaid order, Avnish Bajaj preferred
   Criminal Appeal No. 1483 of 2009. The said appeal was tagged 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
 G from the !is 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. Godjatlier Travels and Tours (P) Ltd.1.
       1
           <2008) 13 sec 103
 H
  SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI                           1019
                 [DIPAK MISRA, J.]

      4. Regard being had to the pleas raised by Avnish Bajaj and also A
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 of2009, the
      issue involved pertains to the interpretation of Section 85 of
      the Information Technology Act, 2000 (for short "the 2000             B
      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 imp leading the Company
      as an accused. The initiation of prosecution was challenged
      under Section 482 of the Code of Criminal Procedure before            c
      the High Court and the High Court held that offences are
      made out against the appellant Company along with the
      Directors Lmder Section 67 reacl with Section 85 of the 2000
      Act and, on the said base, declined to quash the proceeding.
      3. The core issue that has.emerged in these two appeals is            D
      whether the Company could have been made liable for
      prosecution without being impleaded as an accused and
      whether the Directors could have been prosecuted for
      offences punishable under the aforesaid provisions without
      the Company being arrayed as an accused."                             E
      5. In the context of Section 141 of NI Act, the Court ruled thus:-
      "58. Applying the doctrine of strict construction, we are of
      the considered opinion that commission of offence by the
      company is an express condition precedent to attract the
      vicarious liability ofothers. Thus, the words "as well as the         F
      company" appearing in the section make it absolutely
      unmistakably clear that when the company can be
      prosecuted, then only the persons mentioned in the other
      categories could be vicariously liable forthe offence subject
      to the averments in the petition and proof thereof. One               G
      cannot be oblivious of the fact thatthe company is a juristic
      person and it has its own respectability. If a finding is
      recorded against it, it would create a concavity in its
      reputation. There can be situations when the corporate
      reputation is affected when a Director is indicted."
                                                                            H
1020            SUPREME COURT REPORTS                          [2016] 8 S.C.R.


 A            6. As far as the appeal of Avnish Bajaj is concerned, the Court
       referred to Section 85 of the IT Act which is as follows:-
             "85. Offences by companies.-(1) Where a person
             committing a contravention of any of the provisions of this
             Act or of any rule, direction or order made thereunder is a
 B           company, every person who, at the time the contravention
             was committed, was in charge of, and was responsible to,
             the company for the conduct of business of the company
             !lS well as the company, shall be guilty of the contravention
             and shall be liable to be proceeded against and punished
             accordingly:
 c
             Provided that nothing contained in this sub-section shall
             render any such person liable to punishment if he proves
             that the contravention took place without his knowledge or
             that he exercised all due diligence to prevent such
             contravention.
 D
              (2) Notwithstanding anything contained in sub-section {I),
              where a contravention of any of the provisions of this Act
              or of any rule, direction or order made thereunder has been
              committed by a company and it is proved that the
              contravention has taken place with the consent or
 E            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
 F            accordingly."                              ·
             7. Interpreting the same, the Court opined thus:-
             "64. Keeping in view the anatomy ofthe aforesaid provision,
             our analysis pertaining to Section 141 of the Act would
             squarely apply to the 2000 enactment. Thus adjudged, the
 G           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
 H
   SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI                            1021
                  [DIPAK MISRA, J.]

      maintainable either against the company or against the                  A
      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 are quashed."
        8. After the judgment was delivered, the present appellant filed
an application before the trial court to drop the proceedings against him.    B
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.
                                                                              c
       9. Being aggrieved by the order framing of charge, the appellant
moved the High Court in Criminal Revision No. 127 of2015 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 D
him and the responsibility of the appellant and thereafter referred to the
pronouncements in P. Vijayan v. State of Kera/a and Anr. 1 and Amit
Kapoor v. Ramesh Chander and Anr. ·' which pertain to exercise of
revisional power ofthe High Court while dealing with propriety offraming
of charge under Section 228 of the Code of Criminal Procedure.             E
      10. The central issue that arises for consideration is whether the
appellant who has been discharged under Section 67 of the IT Act could
be proceeded under Section ~92 IPC.
        11. Be it noted, on the first date of hearing, Dr. A.M. Singhvi,
learned senior counsel appearing for the appellant urged that the dispute F
raised require interpretation of various provisions ofthe IT Act and bearing
that in mind, the Court thought it appropriate to hear the learned Attorney
General for the Union oflndia. In the course of hearing, the Court was
assisted by Mr. Mukul Rohatgi, learned Attorney General for India, Mr.
Ranjit Kumar, learned Solicitor General and Mr. R.K. Rathore, learned · G
counsel for the Union of India.
       12. It is not disputed that the appellant is the senior manager of
the intermediary and the managing director of the intermediary has been
 '<20IO) 2 sec 398
 '<2012) 9 sec 460                                                            H
1022           SUPREME COURT REPORTS                             [2016) 8 S.C.R.


 A discharged of all the offences as per the decision in Aneet<1 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
 B 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
 C 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 ifhe has been discharged under Section 67
   of the IT Act. According to him, there is no bar in law to charge and try
 D 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
 E 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.
           13. Dr. Singhvi has taken us through the legislative history of
   proscription of obscenity in India. He has referred to the Obscene Books
   and Pictures Act, 1856. The primary object of the said Act was to
 F prevent the sale or exposure of obscene books and picture. It prohibited
   singing of obscene songs, etc. to the annoyance of others. Any person
   found indulging in the said activities was liable to pay a fine of Rs. I 00/
   - or to imprisonment up to 3 years or both. Be it noted, learned senior
   counsel has also referred to the Obscene Publications Act, 1925. The
   said Act has been repealed.
 G
            14. Section 292 IPC in its original shape read as follows:-
            "292. Sale, etc., of obsce11e books, etc.-Whoever-
            (a) sells, lets to hire, distributes, publicly exhibits or in any
            manner puts into circulation, or for purposes of sale, hire,
 I-I
   SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI                               I023
                  fDIPAK MISRA, J.]

      distribution, public exhibition or circulation, makes, produces            A
      or has in his possession any obscene book, pamphlet, paper,
      drawing, painting, representation or figure or any other
      obscene object whatsoever, or
      (b) imports, exports or conveys any obscene object for any
      of the purposes aforesaid, or knowing or having reason to                  B
      believe that such object wiil be sold, let to hire, distributed
      or publicly exhibited or in any manner put into circulation,
      or
      (c) takes part in or receives profits from any business in
      the course of which he knows or has reason to believe that                 c
      any such obscene objects are for any of the purposes
      aforesaid, made, produced, purchased, kept, imported,
      exported, conveyed, publicly exhibited or in any manner put
      into circulation, or
      (d) advertises or makes known by any means whatsoever                      D
      that any person is engaged or is ready to engage in any act
      which is an offence under this section, or that any such
      obscene object can be procured from or through any person,
      or
      (e) offers or attempts to do any act which is an offence                   E
      under this section,
      shall be punished with imprisonment of 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,                       F
      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."
                                                                                 G
        15. The constitutional validity of Section 292 IPC was challenged
in Ranjit D. Udeslii v. State o/Maltaraslitrtr'. Assailing the constitutional
validity, it was urged before the Constitution Bench that the said provision
imposes incompatible and unacceptable restrictions on the freedom of
'AIR 1965 SC 881
                                                                                 H
1024         SUPREME COURT REPORTS                            [2016] 8 S.C.R.

                                       ..
 A speech and expression guaranteed under Section 19(l)(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
 B        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 Publications Act (7of1925) to
          give effect to Article 1 of the International' Convention for
          the suppression of or traffic in obscene publications signed
          by India in 1923 at Geneva. It does not go beyond obscenity
 c        which falls directly within the words "public decency (1)
          (1868) L.R. 3 Q.B. 360. and morality" of the second clause
          of the articlt1_. The word, as the.dictionaries tell us, denotes
          the quality of being obscene which means offensive to
          modesty or decency; lewd, filthy and repulsive. It cannot
 D        be denied that it is an important interest ofsociety to suppress
          obscenity. There is, of course, some difference between
          obscenity and pornography in that the latter denotes writings,
          pictures etc. intended to arouse sexual desire while the
          former may include writings etc. not intended to do so but
          which have that tendency. Both, of course, offend against
 E        public decency and morals but pornography is obscenity in
          a more aggravated form. Mr. Garg seeks to limit action to
          cases of intentional lewdness which he describes as "dirt
          for dirt's sake" and which has now received the appellation
          of hard- core pornography by which term is meant libidinous
 F        writings ofhigh erotic effect unredeemed by anything literary
          or artistic and intended to arouse, sexual feelings.
           x                  x                x                 x
          9. The former he thought so because it dealt with excretory
          functions and the latter because it dealt -with sex repression.
 G        (See Sex, Literature and Censorship pp. 26 201 ).
          Condemnation of obscenity depends as much upon the
          mores of the people as upon the individual. It is always a
          question of degree or as the lawyers are accustomed to
          say, of where the line is to be drawn. It is, however, clear
 H        that obscenity by itself has extremely "poor value in the-
   SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI                            1025
                  rnIPAK MISRA, J.l

      propagation of ideas, opinions and infonnation of public                A
      interest or profit." When there is propagation of ideas,
      opinions and information of public interest or profit, the
      approach to the problem may become different because
      then the interest of society may tilt the scales in favour of
      free speech and expression. It is thus that books on medical
                                                                              B
      science with intimate illustrations und photographs, though
      in a sense immodest, are not considered to be obscene but
      the same illustrations and photographs collected in book fonn
      without the medical text would certainly be considered to
      be obscene. Section, Indian Penal Code deals with obscenity
      in this sense and cannot thus be said to be invalid in view of          c
      the second clause of Art."
       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                   D
      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                E
      items, is, if taken as a whole, such as to tend to deprave
      and corrupt person who are likely, having reg~rd to all
      relevant circumstances, to read, see or hear the matter
      contained or embodied in it.
      (2) Whoever-                                                            F
      (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                G
      obscene object whatsoever, or
      (b) imports, exports or conveys any obscene object for any
      of the purposes aforesaid, or knowing or having reason to
      believe that such object will be sold, let to hire, distributed
      or publicly exhibited or in any manner put into circulation, or
                                                                              H
1026      SUPREME COURT REPORTS                             [2016] 8 S.C.R.


 A     (c) takes part in or receives profits from any business in
       the course of which he knows or has reason to believe that
       any such obscene objects are, for any of the purposes
       aforesaid, made, produced, purchased, kept, imported,
       exported, conveyed, publicly exhibited or in any manner put
       into circulation, or
 B
       (d) advertises or makes known by any means whatsoever
       that any person is engaged or is ready to engage in any act
       which is an offence under this section, or that any such
       obscene object can be procured from or through any person,
       or
 c
       (e) offers or attempts to do any act which is an offence
       under this section,
       shall be punished on first conviction with imprisonment of
       either description for a term which may extend to two years,
 D     and with fine which may extend to two thousand rupees,
       and, in the event of a 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 five thousand rupees.

 E     Exception.-This section does not extend to-
       (a) any book, pamphlet, paper, writing, drawing, painting,
       representation or figure-
       (i) the pubI ication of which is proved to be justified as being
       for the public good on the ground that such book, pamphlet,
 F     paper, writing, drawing, painting, representation or figure is
       in the interest of science, literature, art or learning or other
       objects of general concern, or
       (ii) which is kept or used bona fide for religious purposes;
       (b) any representation sculptured, engraved, painted or
 G     otherwise represented on or in-
       (i) any ancient monument within the meaning of the Ancient
       Monuments and Archaeological Sites and Remains Act, 1958
       (24 of 1958), or

 H
    SHARAI BABU DIGUMARTI v. GOVT. OF NCT OF DELHI                           1027
                   fDIPAK MISRA, J.l

        (ii) any temple, or on any car used for the conveyance of             A
        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 B
 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 C
 ~ny 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:-                                                              D
        "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;"
                                                                              E
        Thus, the offence in question relates to electronic record.
         19. In Slireya Singh al v. Union ofIndia 5, the Court was dealing
· with constitutional validity of Se'ction 66-A of the IT Act and the two-
  Judge Bench declared the said provision as unconstitutional by stating
  thus:-                                                                      F
        "85. These two cases illustrate how judicially trained minds
        would find a person guilty or not guilty depending upon the
        Judge's notion of what is "grossly offensive" or "menacing".
        In Collins case, both the Leicestershire Justices and two
        Judges of the Queen's Bench would have acquitted Collins
                                                                              G
        whereas the House of Lords convicted him. Similarly, in
        the Chambers case, the Crown Court would have convicted
        Chambers whereas the Queen's Bench acquitted him. If

  ' 12015)   s sec 1                                                          H
1028             SUPREME COURT REPORTS                           [2016] 8 S.C.R.


 A           judicially trained minds can come to diametrically opposite
             conclusions on the same set of facts it is obvious that
             expressions such as "grossly offensive" or "menacing" are
             so vague that there is no manageable standard by which a
             person can be said to have committed an offence or not to
             have committed an offence. Quite obviously, a prospective
 B
             offender of Section 66-A and the authorities who are to
             enforce Section 66-A have absolutely no manageable
             standard by which to book a person for an offence under
             Section 66-A. This being the case, having regard also to
             the two English precedents cited by the learned Additional
 c           Solicitor General, it is clear that Section 66-A is
             unconstitutionally vague.
             86. Ultimately, applying the tests referred to in Chintaman
             Rao 6 and V.G Row - case, referred to earlier in the judgment,
             it is clear that Section 66-A arbitrarily, excessively and
 D           disproportionately invades the right of free speech and upsets
             the balance between such right and the reasonable
             restrictions that may be imposed on such right."
              20. Thereafter the Court referred to Kamesliwar Prasad State
       of Bi/tar and Central Prison v. Ram Mano/tar Loltia 9 and came to
 E     hold as follows:-
              "94. These two Constitution Bench decisions bind us and
             would apply directly on Section 66-A. We, therefore, hold
             that the section is unconstitutional also on the ground that it
             takes within its sweep protected speech and speech that is
 F           innocent in nature and is liable therefore to be used in such
             a way as to have a chilling effect on free speech and would,
             therefore, have to be struck down on the ground of
             overbreadth."
             21. While dealing with obscenity, the Curt referred to Ranjit D.
G      Udeslti (supra) and other decisions and opined thus:-
             "48. This Court in Ranjit D. Udeshi v. State of
             Maharashtra (supra) took a rather restrictive view of what
       ' Chintaman Rao v._ State of M.P., AIR 1951 SC 118
       7
         State of.\fadrasv. VG Row.AIR 1952 SC 196
       '1962 Supp. (3) SCR 369: AIR 1962 SC 1166
H       'AIR 1960 SC 633
     SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI                          1029
                   fDIPAK MISRA, J.l

       would pass muster as not being obscene. The Court followed             A
       the test laid down in the old English judgment in Hicklin
       case 10 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
                                                                              B
       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 11 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                   c
       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 recentjudgment of this Court, Aveek Sarkar v.                 D
       State of W.B. 11 , this Court referred to English, US and
       Canadian judgments and moved away from the Hicklin
       (supra) test and applied the contemporary community
       standards test.
       SO. What has been said with regard to public order and                 E
       incitement to an offence equally applies here. Section 66-A
       cannot possibly be said to create an offence which falls
       within the expression "decency" or "morality" in that what
       may be grossly offensive or annoying under the section need
       not be obscene at all-in fact the word "obscene" is
       conspicuous by its absence in Section 66-A."                           F

      22. In Devidas Ramacliandra Tuljapurkar v. State of
Maharashtra and Ors 13 analyzing the said judgment another two-Judge
Bench has opined that as far as test of obscenity is concerned, the
prevalent test is the contemporary community standards test. It is apt to
note here that in the said case the Court was dealing with the issue, G
what kind oftest is to be applied when personalities like Mahatma Gandhi
10
   R v. Hicklin, (1868) LR 3 QB 360
11
   (2006) 8 sec 433
12
   (2014) 4 sec 257
13
   (2015)6SCC I
                                                                              H
1030             SUPREME COURT REPORTS                           [2016] 8 S.C.R.


 A     are alluded. The Court held:-
              " 142. When the name of Mahatma Gandhi is alluded or
             used as a symbol, speaking or using obscene words, the
             concept of "degree" comes in. To elaborate, the
             "contemporary community standards test" becomes
 B           applicable with more vigour, in a greater degree and in an
             accentuated manner. What can otherwise pass of the
             contemporary community standards test for use of the same
             language, it would not be so, ifthe name of Mahatma Gandhi
             is used as a symbol or allusion or surrealistic voice to put
             words or to show him doing such acts which are obscene.
 c           While so concluding, we leave it to the poet to put his defence
             at the trial explaining the manner in which he has used the
             words and in what context. We only opine that view of the
             High Court pertaining to the framing of charge under Section
             292 IPC cannot be flawed."
 D            23. Reference to Slireya Singllal (supra) is only to show that in
       the said case the Court while dealing with constitutional validity of Section
       66-Aofthe IT Act noticed that the said provision conspicuously did not
       have the word "obscene". ft did not say anything else in that regard. In
       the case at hand, it is required to be seen in which of the provision or
 E     both an accused is required to be tried. We have already reproduced
       Section 292 IPC in the present incarnation. Section 67 of the IT Act
       which provides for punishment for publishing or transmitting obscene
       material in electronic form reads as follows:-
             "67. Punishment for publishing or transmitting
 F           obscene material in electronic form. - Whoever
             publishes or transmits 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,
 G           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
 H           of either description for a term which may extend to five
   SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI                                 1031
                 [DIPAK MISRA, J.]

       years and also with fine which may extend to ten lakh                       A
       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.    B
It is as follows:-
       "67B. Punishment for publishing or transmitting of
       material depicting children in seually explicit act, etc.,
       in electronic form. - Whoever -
       (a) publishes or transmits or causes to be published or                     c
       transmitted material any electronic form which depicts
       children engaged in sexually explicit act or conduct; or
       (b) creates text or digital images, collects, seeks, browses,
       downloads, advertises, promotes, exchanges or distributes
       material in any electronic form depicting children in obscene               D
       or indecent or sexually explicit manner; or
       ( c) cultivates, entices or induces children to online
       relationship with one or more children for and on sexually
       explicit act or in a manner that may offend a reasonable
       adult on the computer resources; or                                         E
       (d) facilitates abusing children online; or
       (e) records in any electronic form own abuse or that of
       others pertaining to sexually explicit act with children,
       shall be punished on first conviction with imprisonment of                  F
       either description for a term which may extend to five years
       and with a fine which may extend to ten lakh rupees and in
       the event of second or subsequent conviction with
       imprisonment of either description for a term which may
       extend to seven years and also with fine which may extend
       to ten lakh rupees:                                                         G

       Provided that provisions of section 67, section 67 A and this
       section does not extend to any book, pamphlet, paper, writing,
       drawing, painting representation or figure in electronic form-

                                                                                   H
1032                SUPREME COURT REPORTS                             [2016] 8 S.C.R.


 A            (i)   the publication of which is proved to be justified as
              being for the public good on the ground that such book,
              pamphlet, paper, writing drawing, painting representation
              or figure is in the interest of science, literature, art or learning
              or other objects of general concern; or
 B            (ii) which is kept or used for bona fide heritage or religious
              purposes.
              Explanation.-For the purpose. of this section "children"
              means a person who has not completed the age of 18
              years."
 c            25. Section 69 of the IT Act provides for power to issue directions
       for interception or monitoring or decryption of any information through
       any computer resource. It also carries a penal facet inasmuch as it
       states that the subscriber or intermediary who fails to comply with the
       directions issued under sub-section (3) shall be punished with
 D     imprisonment for a term which may extend to seven years and shall also
       be liable to fine.
              26. We have referred to all these provisions of the IT Act only to
       lay stress that the legislature has del_iberately used the words "electronic
       form". Dr. Singhvi has brought to our notice Section 79 of the IT Act
 E     that occurs in Chapter XII dealing with intermediaries not to be liable in
       certain cases. Learned counsel has also relied on Slrreya Sing/ta/ (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:-

 F           "121. It must first be appreciated that Section 79 is an
             exemptien 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
 G           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
 H
  SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI                            1033
                 [DIPAK MISRA, J.]

      mind to whether information should or should not be blocked            A
      is noticeably absent in Section 69-A read with the 2009
      Rules.
      122. Section 79(3)(b) has to be read down to mean thatthe
      intermediary upon receiving actual knowledge that a court
      order has been passed asking it to expeditiously remove or             B
      disable access to certain material must then fail to
      expeditiously remove or disable access to that material. This
      is for the reason that otherwise it would be very difficult
      for intermediaries like Google, Facebook, etc. to act when
      millions of requests are made and the intermediary is then
      to judge as to which of such requests are legitimate and               c
      which are not. We have been informed that in other
      countries worldwide this view has gained acceptance,
      Argentina being in the forefront. Also, the Court order and/
      or the notification by the appropriate Government or its
      agency must strictly conform to the subject-matters laid               D
      down in Article 19(2). Unlawful acts beyond what is laid
      down in Article 19(2) obviously cannot form any part of
      Section 79. With these two caveats, we refrain from striking
      down Section 79(3)(b).
      123. The learned Additional Solicitor General informed us              E
      that it is a common practice worldwide for intermediaries
      to have user agreements containing what is stated in Rule
      3(2). However, Rule 3(4) needs to be read down in the
      same manner as Section 79(3)(b ). The knowledge spoken
      of in the said sub-rule must only be through the medium of
      a court order. Subject to this, the Information Technology              F
      (Intermediaries Guidelines) Rules, 2011 are valid."
       27. We have referred to the aforesaid aspect as it has been argued
by Dr. Singhvi that the appellant is protected under the said provision,
even ifthe entire allegations are accepted. According to him, once the
factum of electronic record is admitted, Section 79 of the IT Act must G
apply ipso facto and ipso Jure. Learned senior counsel has urged Section
79, as the language would suggest and keeping in view the paradigm of
internet world where service providers of platforms do not control and
indeed cannot control the acts/omissions of primary, secondary and
tertiary users of s1,1ch internet platforms, protects the intermediary till he H
1034           SUPREME COURT REPORTS                         [2016] 8 S.C.R.


 A has the actual knowledge. He would contend that Act has created a
   separate and distinct category called 'originator' in terms of Section
   2(1)(z)(a) under the IT Act to which the protection under Section 79 of
   the IT Act has been consciously not extended. Relying on the decision
   in S/ireya Singlral (supra), he has urged that the horizon has been
 B expanded 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
 C 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
 D          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
 E          Copyright Act 1957 or the Patents Act 1970."
            The proviso has been inserted by Act 10 of2009 w.e.f. 27.10.2009.
          28. Having noted the provisions, it has to be recapitulated that
   Section 67 clearly stipulates punishment for publishing, transmitting
   obscene materials in electronic form. The said provision read with
 F Section 67 A and 678 is a complete code relating to the offences that are
   covered under the IT Act. Section 79, as has been interpreted, is an
   exemption provision conferring protection to the individuals. However,
   the said protection has been expanded in the dictum of S/ireya Sing/rat
   (supra) and we concur with the same. Section 81 also specifically
 G 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, ifthe
   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 of the IPC makes offence sale of obscene books, etc. but
 H
   SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI                            1035
                 [DIPAK MISRA, J.]

once the offence has a nexus or connection with the electronic record         A
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         B
Act would apply. In this regard, we may refer to S(ITW(ln Singlt (Ind
Anr. v. K(lsfuri La/14 • The Court was considering Section 39 of Slum
Areas (Improvement and Clearance) Act, 1956 which laid down that
the provisions of the said Act and the rules made thereunder shall have
effect notwithstanding anything inconsistent therewith contained in any
other law. The Delhi Rent Control Act, 1958 also contained non-obstante       C
clauses. Interpreting the same, the Court held:-
      "When two or more laws operate in the same field and
      each contains a non-obstante clause stating that its provisions
      will override those of any other law, stimulating and incisive
      problems of interpretation arise. Since statutory interpretation        D
      has no conventional protocol, cases of such conflict have
      to be decided in reference to the object and purpose of the
      laws under consideration. A piquant situation, like the one
      before us, arose in Shri Ram Narain v. Simla Banking & .
      Industrial Co. Ltd. 15 the competing statutes being the
                                                                              E
      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            F
      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:
                                                                              G
          "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

" <1977) 1 sec 1so
"AIR 1956 SC614
                                                                              H
1036            SUPREME COURT REPORTS                           [2016] 8 S.C.R.


 A              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-
 B           A of the Delhi Rent Act would be wholly frustrated ifthe
             provisions of the Slum Clearance Act requiring permission
             of the competent authority were to prevail over them.
             Therefore, the newly introduced provisions ofthe Delhi Rent
             Act must hold the field and be given full effect despite
             anything to the contrary contained in the Slum Clearance
 c           Act."
         29. In Ta/c/1er Municipality v. Ta/cl1er Regulated Market
   Committee 16 , the Court was dealing with the question whether the Orissa
   Municipal Act, 1950 or Orissa Agricultural Produce, Markets Act, 1956
   should apply. Section 4(4) of the 1956 Act contained a non-obstante
 D clause. In that context, the Court opined:-
             "The Act, however, contains special provisions. The
             provision of Section 4( 4) of the said Act operates
             notwithstanding anything to the contrary contained in any
             otlfer law forthe time being in force. The provisions of the
 E           said Act, therefore, would prevail over the provisions of the
             Orissa Municipal Act. The maxim "generalia specialibus
             non derogant" would, thus, be applicable in this case. (See
             D.R. Yadav v. R.K. Singhr, Indian Handicrafts
             Emporium v. Union of India 18 and M.P. Vidyut
 F           Karamchari Sangh v. MP. Electricity Board19 .)"
          30. In Ram Narain (supra), the Court faced a situation where
   both the statutes, namely, Banking Companies Act, 1949 and the Displaced
   Persons (Debts Adjustment) Act, 1951 contained non-obstante clause.
   The Court gave primacy to the Banking Companies Act. To arrive at
 G the said conclusion, the Court evolved the following principle:-
             " 7.... It is, therefore, desirable to determine the overriding
             effect of one or the other of the relevant provisions in these
       1•  (2004) 6 sec 178
       11
          (2003) 7 sec 110
       •• (2003) 7 sec 589
 H     1• (2004) 9 sec 755
      SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI                             1037
                     [DIPAK MISRA, J.]

        two Acts, in a given case, on much broader considerations                 A
        of the purpose and policy underlying the two Acts and the
        clear intendment conveyed by the language of the relevant
        provisions therein."
          31. In Solidaire India Ltd. v. Fairgrowt/1 Financial Services
Ltd. ~0 , this Court while dealing with two special statutes, namely, Section     B
l3 of Special Court (Trial of Offences Relating to Transactions in
Securities) Act, 1992 and Section 32 of Sick Industrial Companies (Special
Provisions) Acti 1985, observed as follows:-
         "Where there are two special statutes which contain non
         obstante clauses the later statute must pre.vail. This is                c
         because at the time of enactment of the later statute, the
         Legislatur~,was aware of the earlier legislation and its non
       - cpbstante,~lause. If the Legislature still confers the 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                 D
         then it could and would provide in the later enactmt'.nt 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 shaU p_1;evail, the same
is to be interpreted in accord with the said intentjqn: We have already           E
referred to the scheme of th~ IT Act and hqw ob~&nity pertain in~ to
electroni.: record falls uneliw the soheme•-0f 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        F
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.
                                                                                  G
      33. In Jeewan Kumar Raul v. CBP', in the context of
Transplantation of Human Organs Act, 1994 (TOHO) treating it as a
special law, the Court held:-

 1·• <2001) 3 sec 11
 21
     (2009J 1 sec 526
                                                                                  H
1038               SUPREME COURT REPORTS                            [2016] 8 S.C.R.


 A             "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 provities that offences
 B
               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.
 c             23. TOHO being a special Act and the matter relating to
                                                                         '

               dealing with offences thereunder having been regulated by
               reason of the provisions thereof, there cannot be any manner
               of doubt whatsoever that the same shall prevail over the
               provisions of the Code."                                 ·
 D             Andagain:-
               ''27. The provisions of the Code, thus, for all intent and
               purport, would apply only to an extent till conflict arises
               between the provisions of the Code and TOHO and as soon
               as the area of conflict reaches, TOHO shall prevail over
 E             the Code. Ordinarily, thus, although in terms of the Code,
              ·the respondent upon completion of investigation and upon
               obtaining remand of the accused from time to time, was
               required to file a police report, it was precluded from doing
               so by reason of the provisions contained in Section 22 of
 F             TOHO."
          34. 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
 G Section 292 IPC.
             35. Consequently, the appeal is al lowed, the orders passed by the
       High Court and the trial court are set aside and the criminal prosecution
       lodged against the appellant stands quashed.
       Devikil Oujral                                                    Appeal allowed.
 H