Bombay High Court
Gagan Harsh Sharma And Anr vs The State Of Maharashtra And Anr on 26 October, 2018
Bench: Ranjit More
jud-917-wp-4361-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.4361 OF 2018
WITH
CRIMINAL APPLICATION NO.403 OF 2018
IN
CRIMINAL WRIT PETITION NO.4361 OF 2018
1. Gagan Harsh Sharma
R/at : 1001/02, Y-Wing,
Callalily, Nahar Amrit Shakti,
Chandivali, Saki Vihar Road,
Andheri East, Mumbai-400072
2. Shagun Sharma
S/o Shiv Kumar Sharma
R/at B-49, Old Roshanpura,
Najafgarh, New Delhi-110043 ...Petitioners
V/s.
1. The State of Maharashtra
Through Sr. Police Inspector,
Shahupuri Police Station,
Kolhapur, Maharashtra
2. Shadab Abdul Shaikh
Administration and Human Resource Head
Manorama Infosolutions Pvt. Ltd.
B/1A/12, Flat No.F-1,4,5
5th Floor, DC Plaza, Nagala Park,
Kolhapur Maharashtra-416003 ...Respondents
----
Mr.Vikram Choudhari, Senior Counsel a/w Dr.Sujay Kantawala,
Neha Ahuja, Aishwarya Kantawala, Sangeeta Narayanan i/b Sebin
Michael Joseph for the Petitioners in WP No.4361 of 2018.
Mr.S.D. Shinde, APP for the Respondent-State in WP No.4361 of
2018.
N.S. Kamble page 1 of 45
::: Uploaded on - 01/11/2018 ::: Downloaded on - 01/11/2018 23:22:09 :::
jud-917-wp-4361-2018
Mr.Shirish Gupte, Senior Counsel a/w N.S. Mundargi, Pandit Kasar,
Rohit Mangsule, Harish Khedkar i/b Mr.Vis Legis Law Practice for
Respondent No.2 in WP No.4361 of 2018.
----
CORAM : RANJIT MORE &
SMT.BHARATI H. DANGRE, JJ.
RESERVED ON : 19th OCTOBER 2018
PRONOUNCED ON : 26th OCTOBER 2018
JUDGMENT : (Per Smt.Bharati H. Dangre,J)
1. The principle question that arise in the present Criminal
Writ Petition is whether the invocation and application of the
provisions of the Indian Penal Code can be sustained in the facts and
circumstances of the case when the offences committed by the
petitioners are also sought to be brought within the purview of the
Information Technology Act, 2000, in light of the judgment of the
Hon'ble Apex Court in the case of Sharat Babu Digumarti V/s.
Government (NCT of Delhi)1
In order to appreciate the controversy involved in the
petition it would be necessary to refer to the basic facts 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
1 (2017) 2 SCC 18.
N.S. Kamble page 2 of 45
jud-917-wp-4361-2018
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 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
N.S. Kamble page 3 of 45
jud-917-wp-4361-2018
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 revealed that he has developed his
own software and also distributed the same. The complainant
suspected theft of data and software of the company and checked
the details of Suraj Mahajan and also informed the Director that
Suraj Mahajan was involved in stealing software namely Cleave
Track with the help of Gururaj Janardhan Nimbargi who is the Head
of the company. On inquiry, it is revealed that the software was
developed by the company and not by Suraj Mahajan in his personal
capacity and the server access of the company was given to Suraj
Mahajan as an employee of the company.
2. On the basis of the said complaint the FIR was
registered and Suraj Mahajan came to be arrested. Thereafter, one
Anand Sanmani was also arraigned as accused No.2 and came to be
arrested in relation to the said crime. During the course of the
investigation, it is revealed that M/s.Manorama Infosolutions Pvt.
Ltd. had entered a deal with M/s.Bliss, in Kenya, ERP software for
N.S. Kamble page 4 of 45
jud-917-wp-4361-2018
healthcare division operating in Kenya and it developed the said
software. The demonstration in relation to the said software was
given by various employees which included Anand Sanmani. The
investigation further reveal that this Anand Sanmani was
manipulated and he joined the petitioners who intended to sell the
said software in the Continent of Africa. It is also revealed that the
employees of M/s.Manorama Infosolutions Pvt. Ltd. were directed to
use the knowledge bank, resourses and the source code of
M/s.Manorama Infosolutions Pvt. Ltd., resultantly all necessary
financial aid and the company data of the company was transferred
to the petitioners and their 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,
N.S. Kamble page 5 of 45
jud-917-wp-4361-2018
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 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 the extent
of invocation and application of the offences punishable under the
N.S. Kamble page 6 of 45
jud-917-wp-4361-2018
Indian Penal Code.
4. We have heard the learned APP appearing for the
Respondent-State and Shri.Shirish Gupte, learned Senior Counsel
representing the respondent No.2. According to Shri.Gupte, the
petitioners are the main accused and the master mind behind the
offence with which they are charged and in connivance and by
inducing the co-accused, the employees of the M/s.Manorama
Infosolutions Pvt. Ltd., they have committed the offence and caused
financial loss to the company. Submission of Shri.Gupte, is that the
company had developed software namely Lifeline E Clinic
Enterprises and Lifeline E Claims for M/s.Bliss GVS Healthcare and a
team was constituted in October 2015 to visit Kenya. The petitioner
No.1 was introduced to the remaining team of the company and he
was the key person in this project as the team of the said company
would submit the daily report to the petitioner No.1. It is the
specific submission of the learned Senior Counsel that the petitioner
No.1 called for E-Claims source code and Database company from
Mr.Sanmani and directed him to transfer the source code to him and
to his team at Delhi. It is further alleged that Mr.Sanmani assisted
the petitioner to redefine the existing functionality E-claims for
future sale of E-claims application and on instructions of the
N.S. Kamble page 7 of 45
jud-917-wp-4361-2018
petitioner No.1, Mr.Sanmani asked Mr.Suraj Mahajan to transfer the
Code of E-Claims and E-Claims Database from the companies' server
to the petitioner No.1,2 and their team. It is in this backdrop
according to the learned Senior Counsel 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
N.S. Kamble page 8 of 45
jud-917-wp-4361-2018
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 petition is filed against
the order of the High Court rejecting the anticipatory bail
of the petitioner. Suffice is to state that in the aforesaid
criminal proceedings the High Court shall examine the
matter without being influenced by any observations
made by the High Court in the impugned order. We may
also clarify that this Court has not expressed any opinion
on the merits of the case."
6. In light of the facts referred to above we have heard the
respective Senior Counsels and perused the material placed before
N.S. Kamble page 9 of 45
jud-917-wp-4361-2018
us.
The Information Technology Act, 2000 is a legislation
to provide legal recognition for transactions carried out by means of
electronic data inter change and other means of electronic
communication, commonly referred to as "electronic commerce"
which involve the use of alternatives to paper-based methods of
communication and storage of information, to facilitate electronic
filing of documents with the Government Agencies and further to
amend the Indian Penal Code, the Indian Finance Act, 1872 etc.
The said Act has been brought into force from 17 th October 2000.
The introduction of new communication system and digital
technology has necessitated the said enactment with a view to
facilitate Electronic Governance. With proliferation of information
technology enabled services such as e-governance, e-commerce and
e-transactions, protection of personal data and information and
implementations of security practices and procedures relating to
these applications of electronic communications have assumed great
importance and the Enactment was necessitated in the backdrop of
the security of the nation, economy, public 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
N.S. Kamble page 10 of 45
jud-917-wp-4361-2018
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 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];
N.S. Kamble page 11 of 45
jud-917-wp-4361-2018
(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 residing in such
computer, computer system or computer network;
(e) disrupts or causes disruption of any computer,
computer system or computer network;
(f) denies or causes the denial of access to any person
authorised to access any computer, computer system or
computer network by any means;
(g) provides any assistance to any person to facilitate
access to a computer, computer system or computer
network in contravention of the provisions of this Act,
rules or regulations made thereunder;
(h) charges the services availed of by a person to the
account of another person by tampering with or
manipulating any computer, computer system, or
computer network,
(i) destroys, deletes or alters any information residing in
a computer resource or diminishes its value or utility or
affects it injuriously by any means;]
(j) steal, conceals, destroys or alters or causes any person
N.S. Kamble page 12 of 45
jud-917-wp-4361-2018
to steal, conceal, destroy or alter any computer source
code used for a computer resource with an intention to
cause damage;]
[he shall be liable to pay damages by way of
compensation to the person so affected].
Explanation.- For the purposes of this section,-
(i) "computer contaminant" means any set of computer
instructions that are designed-
(a) to modify, destroy, record, transmit data or
programme residing within a computer, computer
system or computer network; or
(b) by any means to usurp the normal operation of
the computer, computer system, or computer
network;
(ii) "computer database" means a representation of
information, knowledge, facts, concepts or instructions in
text, image, audio, video that are being prepared or have
been prepared in a formalised 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;
N.S. Kamble page 13 of 45
jud-917-wp-4361-2018
(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 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.
N.S. Kamble page 14 of 45
jud-917-wp-4361-2018
Explanation-For the purposes of this section-
(a) the word "dishonestly" shall have the
meaning assigned to it in Section 24 of the Indian
Penal Code (45 of 1860).
(b) the word "fraudulently" shall have the
meaning assigned to it in Section 25 of the Indian
Penal Code (45 of 1860)".
8. The distinction between Section 43 and 66 is very
succinct. All the acts which are covered within the purview of
Section 43 if committed dishonestly and fraudulently are made
punishable under Section 66 with an imprisonment for a term which
may extend to three years or with fine. It is relevant to note that the
word "dishonestly" and "fraudulently" is assigned the same meaning
as in Section 24 and 25 of the Indian Penal Code respectively. The
offences under the Information Technology Act, 2000 are
compoundable and the offences which are punishable with
imprisonment of three years and above are bailable and cognizable.
Another important provision contained in the said enactment is
Section 81 which reads thus :-
"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:
N.S. Kamble page 15 of 45
jud-917-wp-4361-2018
Provided that nothing contained in this Act shall
restrict any person from exercising any right conferred
under the Copyright Act, 1957 (14 of 1957) or the
Patents Act, 1970 (39 of 1970)."
9. In the backdrop of the scheme of the enactment the
claim of the rival parties will have to be examined.
10. The Hon'ble Apex Court in case of Sharat Babu
Digumarti (Supra) had in great detail dealt with the offences
punishable under the Information Technology Act and at the same
time punishable under the relevant provisions of the Indian Penal
Code. In the said case, 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
N.S. Kamble page 16 of 45
jud-917-wp-4361-2018
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 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 person from exercising any right
conferred under the Copyright Act 1957 or the
Patents Act 1970."
The proviso has been inserted by Act 10 of 2009 w.e.f.
N.S. Kamble page 17 of 45
jud-917-wp-4361-2018
27.10.2009.
31. 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 Section 67-A and 67-B 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
Sherya Singhal and we concur with the same.
32. Section 81 of the IT Act 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
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 once the
offence has a nexus or connection with the electronic
record 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 Act would apply.
N.S. Kamble page 18 of 45
jud-917-wp-4361-2018
37. The aforesaid passage clearly shows that if
legislative intendment is discernible that a latter
enactment shall prevail, the same is to be interpreted in
accord with the said intention. We have already referred
to the scheme of the IT Act and how obscenity pertaining
to electronic record falls under the scheme of the Act. We
have also referred to Sections 79 and 81 of the IT Act.
Once the special provisions having the overriding effect do
cover a criminal act and the offender, he gets out of the
net of the 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 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
N.S. Kamble page 19 of 45
jud-917-wp-4361-2018
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 statute is pitted against a General enactment and thereafter
has concluded by making reference Section 79 and 81 that once the
special provisions are accorded overriding effect to cover a criminal
Act, the offender gets out of the net of the Indian Penal Code and in
the case in hand of Section 292.
12. It is well known principle of law that a prior general Act
may be effected by a subsequent particular or a special Act. In the
principles of statutory interpretation by justice G.P. Singh 13 th
Edition 2012 the aforesaid principle is culled out in the following
manner:-
"A prior general Act may be effected by a subsequent
particular or a Special Act, if the special matter of
particular Act prior to its enforcement was being
N.S. Kamble page 20 of 45
jud-917-wp-4361-2018
governed by the general provision of the earlier Act. In
such a case the operation of the particular Act may have
the effected of parallel rebelling the general Act or
curtailing its operation or added conditions to its
operation for the particular cases.
A general Act operation may be curtailed by a latter
special Act even if the general Act contained a non-
obstante clause. The curtailment of the general Act will
be more readily inferred with the latter special Act also
containing an overriding non-obstante provision.
13. The well know principle of 'generalia specialibus
general non-derogant' which is to be invoked in case of conflict
between a specific provision and general provision and which gives
the specific provision an overriding effect over the general provision
has been described in Craies on statute law at page 206, Sixth
Edition Rommaly, MR referred the rule as "The rule is that
whenever there is a particular enactment and a general 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 2, the Hon'ble Apex Court was
required to deal with one such special statute by Section 4 of the
2 AIR 1999 SC 3125
N.S. Kamble page 21 of 45
jud-917-wp-4361-2018
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 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
N.S. Kamble page 22 of 45
jud-917-wp-4361-2018
passenger or for loss, destruction, damage, deterioration and non
delivery of the animals or goods against the railway administration
may be brought. It was held that the said section was a self
contained code and that impliedly repealed the provision in respect
of suits covered by Section 20 of the Code of Civil Procedure, 1908.
The principle which is deducible in the aforesaid judgment is to the
effect that the subsequent legislation which is a Code in itself
exclude the general law on the subject.
15. In case of Allahabad Bank V/s. Canara bank AIR-
2000-SCC-1535, provisions of the recovery of debts due to Banks
and Financial Institutions Act, 1993 ('RDB' Act) was given an
overriding effect over the provisions of the Companies Act 1956.
The RDB Act constitutes a tribunal and by Section 17 and 18 confers
upon the tribunal exclusive jurisdiction to entertain and decide
applications from the banks and the financial institutions for
recovery of debts. The Act also laid down procedure of recovery of
debt as per certificate issued by the tribunal. The said enactment
being a special enactment, would prevail over Section 442, 446, 537
and other section of the Companies Act which is a general Act, more
so because Section 34 of the RDB Act gives overriding effect to that
Act by providing that the provisions of this Act shall have effect
N.S. Kamble page 23 of 45
jud-917-wp-4361-2018
notwithstanding anything inconsistent therein containing in other
law for the time being in force.
16. Further in case of Yakub Abdul Razak Memon V/s.
State of Maharashtra3 the Hon'ble Apex Court while dealing with
an 'overriding effect' clause in the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (for short 'TADA'), while examining its effect
on the Juvenile Justice Act, 2000 made the following observations:-
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
3 (2013) 13-SCC-1
N.S. Kamble page 24 of 45
jud-917-wp-4361-2018
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
consideration the principal subject-matter of the statute
and the particular perspective for the reason that for
certain purposes an Act may be general and for certain
other purposes it may be special and such a distinction
cannot be blurred.
N.S. Kamble page 25 of 45
jud-917-wp-4361-2018
1522. Thus, where there is inconsistency between
the provisions of two statutes and both can be regarded
as special in nature, the conflict has to be resolved by
reference to the purpose and policy underlying the two
enactments and the clear intendment of the legislature
conveyed by the language of the relevant provisions
therein. (Vide Ram Narain v. Simla Banking and
Industrial Co. Ltd.[AIR 1956 SC 614] ,J.K. Cotton Spg. &
Wvg. Mills Co. Ltd. v. State of U.P. [AIR 1961 SC
1170] ,Kumaon Motor Owners' Union Ltd. v. State of
U.P.[AIR 1966 SC 785], Sarwan Singh v. Kasturi Lal
[(1977) 1 SCC 750], U.P. SEB v. Hari Shankar Jain
[(1978) 4 SCC 16 : 1978 SCC (L&S) 481], LIC v. D.J.
Bahadur [(1981) 1 SCC 315 : 1981 SCC (L&S) 111],
Ashoka Mktg. Ltd. v. Punjab National Bank [(1990) 4
SCC 406 : AIR 1991 SC 855] and T.M.A. Pai Foundation
v. State of Karnataka [(2002) 8 SCC 481] .)
17. Further, in case of Jeevan Kumar Raut and Another
V/s. Central Bureau of Investigation 4, on which reliance has been
placed by the Hon'ble Apex Court in case of Sharat Babu
Digumarti (Supra), the Court was called upon to deal with a
special act namely the Transplantation of the Human Organs Act,
1994. The FIR registered disclosed not only commission of offence
under TOHO but also the Indian Penal Code. The officer in-charge
4 2009-7-SCC-526,
N.S. Kamble page 26 of 45
jud-917-wp-4361-2018
of the Police Station being not authorized to deal with the matter in
relation to TOHO, the investigation of the complaint was handed
over to 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
N.S. Kamble page 27 of 45
jud-917-wp-4361-2018
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
investigations in exercise of its authorisation under
Section 13(3)(iv) of TOHO. While doing so, it could
exercise such powers which are otherwise vested in it. But,
as it could not file a police report but a complaint petition
only; sub-section (2) of Section 167 of the Code may not
be applicable.
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 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
N.S. Kamble page 28 of 45
jud-917-wp-4361-2018
time, was required to file a police report, it was precluded
from doing so by reason of the provisions contained in
Section 22 of TOHO."
18. In a recent judgment in case of Independent Thought
V/s. Union of India5, where the question posed before the Apex
Court was about the exception 2 to Section 375 and as to whether a
man committing sexual intercourse or acts with his wife aged
between 15 and 18 years is exempted from offence of rape, their
lordships also decided whether the provisions of Juvenile Justice Act
would prevail against the POSCO Act, the Hon'ble Apex Court
construed that both the enactment are traceable to Article 15(3) of
the Constitution which enable Parliament to make a special
provision for the benefit of the children. As regards whether the
statute would be construed as general or special one, the Apex Court
observed thus :-
95. Whatever be the explanation, given the context and
purpose of their enactment, primacy must be given to pro-
child statutes over IPC as provided for in 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
5 2017-10-SCC-800
N.S. Kamble page 29 of 45
jud-917-wp-4361-2018
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 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
N.S. Kamble page 30 of 45
jud-917-wp-4361-2018
aggravated penetrative sexual assault punishable under
Section 6 of the POCSO Act. Additionally, the punishment
for the respective offences is the same, except that the
marital rape of a girl child between 15 and 18 years of
age is not rape in view of Exception 2 to Section 375 IPC.
In sum, marital rape of a girl child is effectively nothing
but aggravated penetrative sexual assault and there is no
reason why it should not be punishable under the
provisions of IPC. Therefore, it does appear that only a
notional or linguistic distinction is sought to be made
between rape and penetrative sexual assault and rape of a
married girl child and aggravated penetrative sexual
assault. There is no rationale for this distinction and it is
nothing but a completely arbitrary and discriminatory
distinction.
19. In light of the aforesaid authorative pronouncements it
can very will be seen that the statute and its provisions must be
construed by keeping in mind the object behind the enactment of
such a statute. The Hon'ble Apex Court in case of RBI V/s. Peerless
General Insurance Finance and Investment Company Ltd. 6 has
made observations to the following effect :-
"33. If a statue is looked at, in the context of the
enactment, with the glasses of the statute makes and
provided by such context, its scene, the sections, clauses,
6 2014-8-SCC-319
N.S. Kamble page 31 of 45
jud-917-wp-4361-2018
phrases and words may take colour and appear different
that when the statute is looked at without the glasses
provided by the context. With these glasses we must look
at the set as a whole and discover what each section, each
clause, each phrase, each word is meant and designed to
say as to fit into the scheme of the entire Act."
20. It is also a settled principle of statutory interpretation
that a clause or a Section beginning with 'notwithstanding anything
contained in this Act or some particular provision in the Act 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
N.S. Kamble page 32 of 45
jud-917-wp-4361-2018
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 appended to it to the effect
that the word "dishonestly" and "fraudulently" used in the said
Section will be assigned the same meaning as under the Indian
Penal Code. In such circumstances when the Information
Technology Act, 2000 specifically provides a mechanism for dealing
with an act covered in Section 43(a) and (j):-
N.S. Kamble page 33 of 45
jud-917-wp-4361-2018
"Section 43(a) Accesses or secures access to such
computer, computer system or computer network (or
computer resource);
43(j) Steel, conceals, destroys or alters or causes
any person to steal, conceal, destroy or alter any
computer source code used for a computer resource with
an intention to cause damage."
and if this is done with a fraudulent or dishonest intention, it
becomes an offence under Section 66 of the Information Technology
Act. Since, the Information Technology Act deals with the use of
means of electronic communication and has evolved a complete
mechanism in itself to deal with the offences in the use of electronic
transactions, and in the backdrop of the specific facts of the case in
hand, Section 66 would be attracted and in view of the mechanism
contained in the said section, the invocation of the provisions of the
Indian Penal Code is highly unwarranted. This view has already
been authored by their lordships in case of Sharat Babu Digumarti
(Supra).
22. The reliance placed by the learned counsel Shri.Gupte
judgment in case of The State of Maharashtra & Anr. V/s. Sayyad
Hassan Sayyed Subhan & Ors7, in our view it is not applicable to
the present case in light of the direct pronouncement of the Hon'ble
7 Criminal Appeal No.1195 of 2018 of SCC delivered on 20-09-2018
N.S. Kamble page 34 of 45
jud-917-wp-4361-2018
Apex Court in case of Sharat Babu Digumarti (Supra). In the case
relied upon by the learned Senior Counsel the issue involved was
whether an act or omission can constitute 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 issued by the Commissioner is not an order
N.S. Kamble page 35 of 45
jud-917-wp-4361-2018
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 to the exclusion of Section 188. The Hon'ble
Apex Court observed that Section 188 of Indian Penal Code is wider
in scope and did not cover only breach of law and order but it was
also attracted in cases where the act complained of causes or tends
to cause danger to human life, healthy or safety as well. By
comparatively anyalizing the scope of Section 53 of the FSS Act and
Section 188 of the Indian Penal Code, the Hon'ble Apex Court held
as under:-
"7. There is no bar to a trial or conviction of an
offender under two different enactments, but the bar is
only to the punishment of the offender twice for the
offence. Where an act or an omission constitutes an
offence under two enactments, the offender may be
N.S. Kamble page 36 of 45
jud-917-wp-4361-2018
prosecuted and punished under either or both enactments
but shall not be liable to be punished twice for the same
offence. The same set of facts, in conceivable cases, can
constitute offences under two different laws. An act or an
omission can amount to and constitute an offence under
the IPC and at the same time, an offence under any law."
24. The aforesaid judgment of the Hon'ble Apex Court is
therefore clearly distinguishable on facts but even the said judgment
of the Hon'ble Apex Court reiterates the settled position of law that
where an act or an omission constitutes for an offence under two
enactments the offender may be punished under either or both
enactment but was not liable to be punished twice for the same
offence. It is always possible that the same set of facts can
constitute offence under two different laws but a person cannot be
punished twice for the said act which would constitute an offence.
25. The rule against double jeopardy is a significant basic
rule of criminal law that 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
N.S. Kamble page 37 of 45
jud-917-wp-4361-2018
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. Sanjay8, 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
8 2014-9-SCC-772
N.S. Kamble page 38 of 45
jud-917-wp-4361-2018
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 investigate and file chargesheet
irrespective of the procedure under the MMDR Act. However, the
Hon'ble Apex Court observed that this is permissible and would not
have hit by the principle of double jeopardy in view of the fact that
ingredients of both offence are distinct and different. The following
observations by the Hon'ble Apex Court are relevant paragraphs :-
26. Broadly speaking, a protection against a
second or multiple punishment for the same
offence, technical complexities aside, includes a
protection against re-prosecution after acquittal, a
protection against re-prosecution after conviction
and a protection against double or multiple
punishment for the same offence. These protections
have since received constitutional guarantee under
Article 20(2). But difficulties arise in the
application of the principle in the context of what
is meant by 'same offence'. The principle in
American law is stated thus:
'The proliferation of technically different
offences encompassed in a single instance of
crime behaviour has increased the
N.S. Kamble page 39 of 45
jud-917-wp-4361-2018
importance of defining the scope of the
offence that controls for purposes of the
double jeopardy guarantee.
Distinct statutory provisions will be treated
as involving separate offences for double
jeopardy purposes only if "each provision
requires proof of an additional fact which
the other does not" (Blockburger v. United
States [76 L Ed 306 : 284 US 299
(1932)] ). Where the same evidence suffices
to prove both crimes, they are the same for
double jeopardy purposes, and the clause
forbids successive trials and cumulative
punishments for the two crimes. The offences
must be joined in one indictment and tried
together unless the defendant requests that
they be tried separately. (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
N.S. Kamble page 40 of 45
jud-917-wp-4361-2018
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 permissible....'
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.
N.S. Kamble page 41 of 45
jud-917-wp-4361-2018
The Apex Court held as under:-
"14. We are, therefore, of the opinion that in a
given case, same set of facts may give rise to an
offence punishable under Section 5 and Section
6(3) both. There is nothing unconstitutional or
illegal about it. So also an act which is alleged to
be an offence under Section 6(3) of the Act and if
for any reason prosecution under Section 6(3) does
not end in conviction, if the ingredients of offence
under Section 5 are made out, may still be liable to
be punished under Section 5 of the Act. We,
therefore, do not agree with the High Court to the
extent to which it has been held that once a
prohibitory order under sub-section (1) or (2) has
been issued, then a criminal act done after the
promulgation of the prohibitory order can be
punished only under Section 6(3) and in spite of
prosecution under Section 6(3) failing, on the
same set of facts the person proceeded against
cannot be held punishable under Section 5 of the
Act although the ingredients of Section 5 are fully
made out."
27. Applying the aforesaid principles to the facts involved
in the case, perusal of the complaint would reveal that the
allegations relate to the use of the data code by the employees of the
complainant company by accessing the Code and stealing the said
N.S. Kamble page 42 of 45
jud-917-wp-4361-2018
data by using the computer source code. The Act of accessing or
securing access to computer/computer system or computer network
or computer resources by any person without permission of the
owner or any person who is in charge of the computer, computer
system, computer network or downloading of any such data or
information from computer in a similar manner falls within the
purview of Section 43 of the Information Technology Act,2000.
When such 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
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
N.S. Kamble page 43 of 45
jud-917-wp-4361-2018
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 cognizance the Competent Court can determine the
provisions of which enactments are attracted and it is too premature to
exclude the investigation in the offences constituted under the Indian
Penal Code, we are not ready to accept the said contention of the
learned Senior Counsel, specifically in the light of the observations of
the Hon'ble Apex Court in the case of Sharat Babu Digumarti
N.S. Kamble page 44 of 45
jud-917-wp-4361-2018
(Supra). We are of the specific opinion that 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 Penal Code, in light of the specific provisions contained in the
Information Technology Act, 2000 and leave it to the discretion of the
Police Authorities to decide in which direction the investigation is to be
proceeded. The Information Technology Act, 2000 being a special
enactment, it requires an able investigation keeping in mind the
purpose of the enactment and to nab the new venturing of crimes with
the assistance of the Technology.
29. In such circumstances we are inclined to allow the Writ
Petition in terms of prayer clause (a) and quash and set aside the
subject FIR insofar as the investigation into the offences punishable
under the Indian Penal Code.
30. In light of the aforesaid decision, the Criminal
Application No. 403 of 2018 does not survive and stands disposed
of.
(SMT.BHARATI H. DANGRE, J.) (RANJIT MORE, J.)
N.S. Kamble page 45 of 45
