If no charge has been made out under Section 67of IT Act, then appellant cannot be proceeded against under Section 292 IPC

Supreme Court: While determining the question whether the appellant who has been discharged under Section 67 of the IT Act could be proceeded under Section 292 IPC, the Bench of Dipak Misra and Praffula C. Pant, JJ. held that when the Information Technology Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC. It is to be noted that electronic forms of transmission is covered by the IT Act, a special law and that a special law shall prevail over the general and prior laws.

The case dealt with an appeal against the High Court’s order charging the appellant under Section 292 IPC, despite the charges being dropped under Section 67 of the IT Act. The appellant, senior manager of the intermediary, had been singularly framed under Section 292 IPC while the managing director of the intermediary has been discharged of all the offences as per the decision in Aneeta Hada v. Godfather Travels and Tours (P) Ltd., (2008) 13 SCC 703. Counsel for the appellant urged that Section 79, as the language suggested, 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 such internet platforms, protected the intermediary till he had the actual knowledge. Whereas counsel for the respondent pleaded that the role of person in charge of the intermediary was extremely vital as it pertained to sale of obscene material which was punishable under Section 292 IPC and not under Section 67 of the IT Act.

The Court said that the offence in question related to electronic record and Section 67 clearly stipulated punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Sections 67-A and 67-B was a complete code, Section 79 being an exception provision conferred protection to the individuals. Section 292  IPC makes offence the sale of obscene books, etc. but once the offence has a nexus with the electronic record the protection under Section 79 cannot be ignored and negated. The Court quashed the criminal prosecution lodged against the appellant. [Sharat Babu Digumarti v. Govt. of NCT of Delhi, 2016 SCC OnLine SC 1464, decided on 14.12.2016]

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