Vijay Kumar and others v. Union Territory of Ladakh & Ors.

Through:-Mr. Eishan Dadhichi, CGSC Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 21.04.2025

1. By this common order, afore titled two petitions are proposed to be disposed of.

2. By way of CRM(M) No.384/2023, the petitioners have challenged FIR No.25 dated 21.02.2023 for offences under Section 420/406 IPC registered with Police Station, Leh, whereas by way of CRM(M) No.273/2025, the petitioners have challenged the challan filed against them, which arises out of the aforementioned FIR. 2

3. Heard and considered.

4. The main contention raised by the learned counsel for the petitioners is that the Information Technology Act, 2000 being a special statute has an overriding effect, therefore, it was not open to the respondent/Investigating Agency to investigate and file challan in respect of offences under the Indian Penal Code when the alleged acts/omission on the part of the accused also fall within the definition of certain offences under the I.T Act. Learned counsel for the petitioner in order to support his aforesaid contention has placed reliance judgment Supreme Court Sharat Babu Digumarti v. Govt. of NCT of Delhi, AIR 2017 SC 150 and judgment of the Bombay High Court in the case of Gagan Harsh Sharma v. State of Maharashtra, (2019) CriLJ 1398.

5. It appears that FIR No.25/2013 for offences under Section 420/406 IPC, which is impugned in CRM(M) No.384/2023, came to be registered by the Police Station, Leh on the basis of a written complaint lodged by one Sh. Pardeep Kumar-respondent No.3, who happened to be the observer of CBSE KVS direct Recruitment Exam-2023. In his report, the complainant alleged that during his observation duty on 21.02.2023 at GCOM Examination Centre, Leh, he found that the site supervisor was taking photographs of the system on which a candidate was appearing for her exam. It was further alleged by the complainant that there was some mal fide intention in taking of the photographs and he apprehends that the 3 same may be used for malpractice that may affect fairness of the recruitment exam. It was also alleged that taking of photographs is not permitted as per the examination norms.

6. It seems that on the basis of aforesaid complaint, the impugned FIR came to be registered and investigation was set into motion by the respondent-Investigating Agency. After completion of investigation, it appears the offences under Sections 420/406,408, 409, 120-B, 201 IPC, Sections 65, 66, 66-D, 43 (a) (c) (g), 84-B, 84-C and 85 of Information Technology Act were found established against the petitioners and the charge-sheet was, accordingly, laid before the learned Chief Judicial Magistrate, Leh.

7. There is no dispute with regard to the legal position that the provisions contained in the Information Technology Act have an overriding effect over other laws. This is clear from a bare perusal of the provisions contained in Section 81 of the I.T.Act. The contention of the petitioners is that the allegations leveled against them may constitute offences both under the Indian Penal Code as well as under the I. T. Act but because the provisions of the I. T. Act have an overriding effect, therefore, the Investigating Agency could not have undertaken investigation into the offences under IPC nor could it have filed the challan against the petitioners in respect of such offences. 4

8. The legal position in the above context has been settled by the Supreme Court in the case of Sharat Babu Digumarti (supra) wherein it has been held that if an offence falls within the definition of special provisions like I. T. Act, the same has to be given effect to so as to make the protection effective and true to the legislative intent, which is carried in Section 81 of the I. T. Act. Relying upon the aforesaid ratio laid down by the Supreme Court, a Division Bench of the Bombay High Court in Gagan Harsh Sharma (supra) has observed as under:- “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 (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 5 enactment and to nab the new venturing of crimes with the assistance of the Technology.”

9. In view of the aforesaid analysis of the law on the subject, it is clear that if a particular act or omission constitutes an offence both under IPC as well as under I. T. Act, in the face of overriding effect of the provisions of the I. T, Act, the offender has to be booked and tried for offence under the I.T. Act and not for offence under the IPC.

10. Learned counsel for the petitioner has contended that in view of the aforesaid legal position, the impugned FIR and the charge-sheet are liable to be quashed. While the contention of the learned counsel for the petitioners that if an act or omission falls under the definition of an offence both under I. T. Act and IPC, such act/omission is to be dealt with in accordance with the provisions of the I.T. Act is acceptable, but merely because of this reason the impugned charge- sheet filed against the petitioners cannot be quashed nor can the impugned FIR be quashed at this stage when it has culminated into a charge-sheet against the petitioners. The respondent-Investigating Agency has already undertaken the investigation of the case on the basis of the impugned FIR, which has been registered with regard to the offences under IPC, whereafter offences under different provisions of the IPC and I. T. Act have been found established against the petitioners and chare-sheet has been laid against them.

11. At this stage, when charge-sheet already stands filed against the petitioners, the question of quahsment of the impugned FIR does not 6 arise. So far as the question, as to whether the acts/omissions committed by the petitioners constitute offences both under the I. T. Act and IPC is concerned, the same can be determined by the trial Court at the time of framing of the charges. If it is found by the trial Court that the alleged acts/omissions of the petitioners constitute offences under the I. T. Act as well as IPC then in the light of the ratio laid down by the Supreme Court in Sharat Babu Digumarti’s case (supra), only charges in respect of offences under the I. T. Act will have to be framed against the petitioners in view of the overriding effect of the provisions of the I. T. Act. In these circumstances, it would be appropriate for the trial Court to determine all these issues after analyzing the material collected by the Investigating Agency during investigation of the case.

12. In view of the above, this Court is not inclined to interfere with the impugned challan and the impugned FIR at this stage, leaving it open to the trial Court to consider the contentions raised by the petitioners in these petitions at the time of framing of the charges.

13. Both the petitions shall stand disposed of accordingly.

14. A copy of this order be sent to the learned Chief Judicial Magistrate, Leh for information. Jammu 21.04.2025 Vinod. Vinod Kumar 2025.04.23 11.17 I attest to the accuracy and integrity of this document Jammu (Sanjay Dhar) Judge Whether order is reportable: Yes