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Special Law and General Law

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 18-Apr-2024

Source: Bombay High Court

Why in News?

Recently a bench of Justices Mangesh S Patil, RG Avachat and Shailesh P Brahme held that “If even one ingredient of an offence under the Indian Penal Code, 1860 (IPC) is missing in the act which has been made punishable under the special statute, the IPC section will not be excluded and still can be resorted to albeit”.

  • The Bombay High Court gave this observation in the case of Awadhesh Kumar Parasnath Pathak & Ors v. State & Ors.

What was the Background of the Awadhesh Kumar Parasnath Pathak & Ors v. State & Ors. Case?

  • There was a conflict between two division bench judgments of the Bombay High Court in the cases of Gagan Harsh Sharma v. State of Maharashtra (2019) and Awadhesh Kumar Parasnath Pathak v. The State of Maharashtra (2019) on the interpretation and application of certain provisions of the Information Technology (IT) Act, 2000 vis-a-vis the IPC.
  • In the Gagan Harsh Sharma case, the division bench held that even dishonest and fraudulent acts fall within the scope of Section 66 of the IT Act. It observed that Sections 79 and 81 of the IT Act give overriding effect, and offenses pertaining to electronic records covered by the IT Act would take out the provisions of the IPC.
  • In Awadhesh Kumar Parasnath Pathak case, the other division bench disagreed with the observations in Gagan Harsh Sharma, stating that the offenses defined under Sections 43 read with 66 and Section 72 of the IT Act are not the same as those defined and punishable under Sections 406, 408, and 420 of the IPC.
  • The Supreme Court, while dismissing the SLP against Gagan Harsh Sharma, left the issue open to be decided in an appropriate case, commenting on the interplay between the IT Act and IPC provisions.
  • Specific questions were referred to a larger bench of the Bombay High Court to resolve the conflict between the two division bench judgments on the interpretation and applicability of the IT Act and IPC provisions in cases involving electronic records and computer-related offenses.

What were the Court’s Observation?

  • The Bombay High Court held that neither Section 43 nor Section 72 of the IT Act makes punishable an offence committed by two or more persons with a shared common intention.
    • The IT Act does not have any provision that covers offences committed with a shared common intention as defined under Section 34 of IPC.
  • The common thread from various Supreme Court judgments is that if an act is an offence under a special statute overriding the IPC, the ingredients of the offence under the special statute and the IPC must be the same to exclude the IPC section.
    • If even one ingredient of the IPC offence is missing in the act punishable under the special statute, the IPC section can still be applied, subject to Sections 71 of the IPC and 26 of the General Clauses Act, 1897 regarding sentencing.
  • The court made these observations as an abundant precaution to guide trial courts when faced with situations where they need to consider these aspects, even though the observations may not have been necessary to answer the referred questions.
  • The court finally held that offences under the IT Act cannot be considered as committed with a shared common intention, and the IPC provisions can still apply if the ingredients of the IPC offence are not fully covered by the IT Act offence.

Comparison of Legal Provisions Involved in the Case

No. S.43(b) IT Act S.66 IT Act S.72 IT Act S.405/406 IPC S.408 IPC S.409 IPC S.420 IPC
1. Unauthorized downloading or copying or extraction from a computer Unauthorized downloading or copying or extraction from a computer Disclosure without consent of the person concerned, to any other person Entrustment of property or of dominion over property Entrustment of property or of dominion over property Entrustment of property or of dominion over property Dishonest or fraudulent deception of a person
2. Of any data or computer database or information Of any data or computer database or information Of electronic record, book, register, corresponden ce, information, document or other material Dishonest misappropriation or conversion to his own use of the said property OR Dishonest use of willful suffering of any other person to do so in violation of (a) any directions of law prescribing the mode in which such property is to be discharged, or (b) any Legal contract made touching discharge of such trust Dishonest misappropriation or conversion to his own use of the said property OR Dishonest use of willful suffering of any other person to do so in violation of (a) any directions of law prescribing the mode in which such property is to be discharged, or (b) any Legal contract made touching discharge of such trust Dishonest misappropriation or conversion to his own use of the said property OR Dishonest use of willful suffering of any other person to do so in violation of (a) any directions of law prescribing the mode in which such property is to be discharged, or (b) any Legal contract made touching discharge of such trust

Inducement of person so deceived to

(a) deliver any property to any person, or

(b) to make, alter or destroy any valuable security or anything which is sealed or capable of being converted into a valuable security
3. With dishonest or fraudulent intention (Mens Rea) Accused secures access in pursuance of powers conferred under this act The accused was a clerk or a servant The accused was a public servant or a banker, merchant, broker, attorney or agent
4. The accused was entrusted with that property in such capacity

What are Landmark Cases Related to Special and General Law?

  • Sharat Babu Digumarti v. State (NCT of Delhi) (2017):
    • The Supreme Court held that the IT Act is a special enactment.
    • For offences with a nexus to electronic records, the provisions of Sections 79 and 81 of the IT Act cannot be ignored in favor of the IPC.
    • Section 292 IPC (sale of obscene books) cannot apply if the special provision of Section 67 IT Act covers the offence related to obscene electronic records.
    • When the IT Act deals with obscenity in electronic form, it covers the offence under Section 292 IPC, as the special law prevails over the general law.
  • Gagan Harsh Sharma v. State of Maharashtra (2018):
    • Relying on Sharat Babu Digumarti case, the Bombay High Court held that even a dishonest and fraudulent act falls within the scope of Section 66 of the IT Act.
    • It held that Sections 79 and 81 of the IT Act give overriding effect, and offences pertaining to electronic records covered by the IT Act and punishable under Section 43 read with Section 66 would take out the provisions of the IPC.
    • It stated that prosecuting under both IPC and IT Act for the same facts would violate double jeopardy protection.
  • State of Uttar Pradesh v. Aman Mittal and another (2019):
    • This case dealt with the interplay between the Legal Metrology Act, 2009 and relevant IPC offences, like Gagan Harsh Sharma case.
    • The Gagan Harsh Sharma case was cited before the Supreme Court.
    • The Supreme Court left the issue open to be decided in an appropriate future case, observing that dismissal of the SLP against Gagan Harsh Sharma case did not amount to merging the High Court order.