# SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI

- **Citation:** [2016] 8 S.C.R. 1015
- **Court:** Supreme Court of India
- **Decided:** 2016-12-14
- **Case number:** Criminal Appeal No. 1222 of 2016
- **Bench:** Dipak Misra, Praffula C. Pant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sharat-babu-digumarti-v-govt-of-nct-of-delhi-31371
- **Pages:** 24

## Headnote

A
B
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 c
Court declined to interfere on the ground that there was sufficient
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
1015
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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.
B
Section 79 is an exemption provision conferring protection to
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; 1031A-B; 1032-C-D; 1034-F-H; 1036-A-B]
EF
Aneeta Hada v. Godfather Travels and Tours (P) Ltd.
(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
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

## Text

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[2016] 8 S.C.R. 1015
SHARAT BABU DIGUMARTI
v.
GOVT. OF NCT OF DELHI
(Criminal Appeal No. 1222 of 2016)
DECEMBER 14, 2016
[DIPAK MISRA AND PRAFFULA C. PANT, JJ,]
A
B
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 c
Court declined to interfere on the ground that there was sufficient
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
1015
H
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.
B
Section 79 is an exemption provision conferring protection to
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; 1031A-B; 1032-C-D; 1034-F-H; 1036-A-B]
EF
Aneeta Hada v. Godfather Travels and Tours (P) Ltd.
(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
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
Ltd. (2001) 3 SCC 71:2001 (1) SCR 932; Jeewan
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;
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;
Talcher Municipality v. Talcher Regulated Market
Committee (2004) 6 SCC 178 : 2004 (3) Suppl. SCR
167 -
referred to.
Case Law Reference
(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
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
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
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.
1017
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SUPREME COURT REPORTS
(2016) 8 S.C.R.
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.
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.
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.
H
1 <2008) 13 sec 103
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 threeJudge 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
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
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
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."
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
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
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."
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SUPREME COURT REPORTS
[2016] 8 S.C.R.
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
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:
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.
(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
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
accordingly."
·
7. Interpreting the same, the Court opined thus:-
"64. Keeping in view the anatomy of the aforesaid provision,
our analysis pertaining to Section 141 of the Act would
squarely apply to the 2000 enactment. Thus adjudged, the
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
SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI
1021
[DIPAK MISRA, J.]
maintainable either against the company or against the
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
A
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.
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
c
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 of the High Court while dealing with propriety of framing
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 of the 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
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[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
I-I
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,
SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI
I 023
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,
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."
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
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[2016] 8 S.C.R.
..
A speech and expression guaranteed under Section 19(l)(a) of the
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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
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
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
be denied that it is an important interest of society 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
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
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.
(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
that obscenity by itself has extremely "poor value in the-
SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI
rnIPAK MISRA, J.l
propagation of ideas, opinions and infonnation of public
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
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
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
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
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-
(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
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
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( 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
( 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
(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,
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.
Exception.-This section does not extend to-
(a) any book, pamphlet, paper, writing, drawing, painting,
representation or figure-
(i) the pub I ication 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
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or
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
SHARAI BABU DIGUMARTI v. GOVT. OF NCT OF DELHI
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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;"
Thus, the offence in question relates to electronic record.
19. In Slireya Singh al v. Union of India5, the Court was dealing
· with constitutional validity of Se'ction 66-A of the IT Act and the twoJudge Bench declared the said provision as unconstitutional by stating
thus:-
"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
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
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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
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
Solicitor General, it is clear that Section 66-A is
unconstitutionally vague.
86. Ultimately, applying the tests referred to in Chintaman
Rao6 and V.G Row -case, referred to earlier in the judgment,
it is clear that Section 66-A arbitrarily, excessively and
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 Loltia9 and came to
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
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.
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
'AIR 1960 SC 633
SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI
fDIPAK MISRA, J.l
would pass muster as not being obscene. The Court followed
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
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
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.
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
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."
22. In Devidas Ramacliandra Tuljapurkar v. State of
Maharashtra and Ors13 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,
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
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A are alluded. The Court held:-
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" 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
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.
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."
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
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
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,
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
of either description for a term which may extend to five
SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI
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[DIPAK MISRA, J.]
years and also with fine which may extend to ten lakh
A
rupees."
24. 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.
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
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
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
(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
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:
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 formc
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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.
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Explanation.-For the purpose. of this section "children"
means a person who has not completed the age of 18
years."
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
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
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:-
"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
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
SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI
[DIPAK MISRA, J.]
mind to whether information should or should not be blocked
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
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
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
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
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
(Intermediaries Guidelines) Rules, 2011 are valid."
27. We have referred to the aforesaid aspect as it has been argued
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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.