SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI

From the Judgment and Order dated 31.08.2015 of the High Court of Delhi at New Delhi in Criminal Revision Petition No. 127 of2015. H 1018 A 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. B A. K. Sanghi, R. K. Rathore, Sr. Advs., Ms. Madhvi Divan, Abhishek Atrey, D. S. Mahra, Ms. Nidhi Khanna, Advs. for the Respondent. The Judgment of the Court was delivered by DIPAK MISRA, J. 1. Leave granted. c

#2. The appellant along one Avnish Bajaj and others was arrayed as an accused in FIR No. 645 of 2004. After the investigation was concluded, charge sheet was filed before the learned Metropolitan Magistrate who on 14.02.2006 took cognizance of the offences punishable under Sections 292 and 294 of the Indian Penal Code (IPC) and Section D 67 of the Information Technology Act, 2000 (for short, "the IT Act") against all of them. Avnish Bajaj filed Criminal Misc. Case No. 3066 of 2006 for quashment of the proceedings on many a ground before the High Court of Delhi which vide order dated 29.05.2008 came to the conclusion that primafacie case was made out under Section 292 IPC, E but it expressed the opinion thatAvinish Bajaj, the petitioner in the said case, was not liable to be proceeded under Section 292 IPC and, accordingly, he was discharged of the offence under Sections 292 and 294 IPC. However, he was primafacie found to have committed offence under Section 67 read with Section 85 of the IT Act and the trial court was directed to proceed to the next stage of passing of order of charge F uninfluenced by the observations made in the order of the High Court.

#3. Being grieved by the aforesaid order, Avnish Bajaj preferred Criminal Appeal No. 1483 of 2009. The said appeal was tagged with Ebay India Pvt. Ltd. v. State and Anr. (Criminal Appeal No. 1484 of 2009). The said appeals were heard along with other appeals that arose from the !is relating to interpretation of Sections 138 and 141 of the Negotiable Instruments Act, 1881 (for short, "NI Act") by a three-Judge Bench as there was difference of opinion between the two learned Judges in Aneeta Hada v. Godjatlier Travels and Tours (P) Ltd.1. 1 <2008) 13 sec 103 G H SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI [DIPAK MISRA, J.] 1019

#4. Regard being had to the pleas raised by Avnish Bajaj and also A the similarity of issue that arose in the context of NI Act, the three Judge Bench stated the controversy that emerged for consideration thus:- "2. In Criminal Appeals Nos. 1483 and 1484 of2009, the issue involved pertains to the interpretation of Section 85 of the Information Technology Act, 2000 (for short "the 2000 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." B c D E F G H 1020 SUPREME COURT REPORTS [2016] 8 S.C.R. A

#6. As far as the appeal of Avnish Bajaj is concerned, the Court referred to Section 85 of the IT Act which is as follows:- "85. Offences by companies.-(1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a 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 B c D E F G H SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI [DIPAK MISRA, J.] 1021 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." A

#8. After the judgment was delivered, the present appellant filed an application before the trial court to drop the proceedings against him. B The trial court partly allowed the application and dropped the proceedings against the appellant for offences under Section 294 IPC and Section 67 of the IT Act, however, proceedings under Section 292 IPC were not dropped, and vide order 22.12.2014, the trial court framed the charge under Section 292 IPC.

#9. Being aggrieved by the order framing of charge, the appellant moved the High Court in Criminal Revision No. 127 of2015 and the learned Single Judge by the impugned order declined to interfere on the ground that there is sufficient material showing appellant's involvement to proceed against him for the commission of the offence punishable under Section 292 IPC. It has referred to the allegations made against D him and the responsibility of the appellant and thereafter referred to the pronouncements in P. Vijayan v. State of Kera/a and Anr. 1 and Amit Kapoor v. Ramesh Chander and Anr. ·' which pertain to exercise of revisional power of the High Court while dealing with propriety of framing of charge under Section 228 of the Code of Criminal Procedure. E c

#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 H 1022 SUPREME COURT REPORTS [2016) 8 S.C.R. A discharged of all the offences as per the decision in Aneet<1 Hada (supra). and further that singular charge that has been framed against the appellant is in respect of Section 292 IPC. It is submitted by Dr. Singhvi that the appellant could not have been proceeded under Section 292 IPC after having been discharged under Section 67 of the IT Act. Mr. Rohatgi, learned Attorney General assisting the Court submitted that Section 67 B of the IT Act is a special provision and it will override Section 292 IPC. He has made a distinction between the offences referable to the internet and the offences referable to print/conventional media or whatever is expressed in Section 292 IPC. Mr. D.S. Mahra, learned counsel appearing for the NCT of Delhi, would contend that publishing any C obscene material as stipulated under Section 67 of the IT Act cannot be confused or equated with sale of obscene material as given under Section 292 IPC, for the two offences are entirely different. It is urged by him that an accused can be charged and tried for an offence independently under Section 292 IPC even ifhe has been discharged under Section 67 of the IT Act. According to him, there is no bar in law to charge and try D for the offence under Section 292 IPC after discharge from Section 67 of the IT Act. Learned counsel would further contend that the role of person in charge of the intermediary is extremely vital as it pertains to sale of obscene material which is punishable under Section 292 IPC and not under Section 67 of the IT Act. It is put forth by the learned counsel 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. E

#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.

#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, G I-I SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI fDIPAK MISRA, J.] I 023 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 wiil be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, ( 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, (e) offers or attempts to do any act which is an offence 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 A B c D E F G H 1024 SUPREME COURT REPORTS [2016] 8 S.C.R. A speech and expression guaranteed under Section 19(l)(a) of the .. Constitution. The Constitution Bench opined as follows:-. "7. No doubt this article guarantees complete freedom of speech and expression but it also makes an exception in favour of existing laws which impose restrictions on the 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- B c D E F G H SHARAT BABU DIGUMARTI v. GOVT. OF NCT OF DELHI rnIPAK MISRA, J.l 1025 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 A B c D E F G H 1026 SUPREME COURT REPORTS [2016] 8 S.C.R. ( 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, (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 A B c D E F G H SHARAI BABU DIGUMARTI v. GOVT. OF NCT OF DELHI fDIPAK MISRA, J.l 1027 (ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose." A

#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:- "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 India 5, the Court was dealing · with constitutional validity of Se'ction 66-A of the IT Act and the two Judge Bench declared the said provision as unconstitutional by stating thus:- "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 D E F G H 1028 SUPREME COURT REPORTS [2016] 8 S.C.R. A B c D E F G H 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 Rao 6 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