India: Bombay High Court On The Dual Applicability Of The Information Technology Act, 2000 And Indian Penal Code, 1860 For Same Offence

Last Updated: 12 December 2018
Article by Sachin Mandlik, Jaideep Singh Khattar and Kaushiki Agarwal

Most Read Contributor in India, August 2019

INTRODUCTION

On 26 October 2018, a two judge bench of the Bombay High Court vide its judgment in Gagan Harsh Sharma & Anr v State of Maharashtra & Anr (Criminal Writ Petition No 4361 of 2018) held that when an offence is sufficiently covered under the provisions of the Information Technology Act, 2000 (IT Act), the IT Act will apply as lex specialis to the exclusion of the Indian Penal Code, 1860 (IPC). The Bombay High Court vide its judgment quashed and set aside the First Information Report (FIR) insofar as the investigation into the offences punishable under the IPC were concerned, on the basis that the ingredients of offences alleged under IPC were the same as compared to the ingredients of the offences alleged to have been committed under IT Act.

FACTUAL BACKGROUND

The case arose out of an FIR filed by M/s Manorama Infosolutions Private Limited (Manorama) against the accused under Sections 43, 65 and 66 of the IT Act and under sections 408 and 420 of the IPC for, inter alia theft of a healthcare software of Manorama. It was alleged that certain employees of Manorama along with third parties had gained access to the computer system of Manorama and stolen certain source code to create their own software.

JUDGMENT

The question for consideration of the Bombay High Court was, whether the offences alleged under sections 43, 65 and 66 of the IT Act could be tried together with the same offence alleged to have been committed under the IPC.

The petitioners argued that the alleged offences can be sufficiently dealt with under the provisions of the IT Act, which will override the provisions of the IPC and therefore at least in so far as the FIR concerns the offences under IPC, it ought to be quashed and set aside. It was also argued that by applying the provisions of IPC to same offence which are otherwise committed under the IT Act, the benefit of the offences under the IT Act being bailable and compoundable is also negated.

While coming to the conclusion of quashing the FIR to the extent of the offences alleged to have been committed under the IPC, inter alia, reference was made to the Supreme Court decisions in Sharat Babu Digumarti v Government (NCT of Delhi) [(2017) 2 SCC 18] and State (NCT) of Delhi v Sanjay [(2014) 9 SCC 772].

In Sharat Babu's case, the accused were charged with offences under Section 67 of the IT Act and Section 292 of the IPC. The question before the Supreme Court was whether the accused who was discharged under Section 67 of IT Act could be prosecuted under Section 292 of IPC. Placing reliance on non-obstante provisions under Section 81 of IT Act and Section 67A and 67B, it was held that charge under Section 292 could not survive. The decision was on the basis that Sections 67, 67A and 67B was a complete code regarding offence concerning publishing and transmitting obscene material in electronic form and non-obstante provision under Section 81 makes IT Act a special law which will prevail over the general law, IPC.

In Sanjay's case, the Supreme Court while considering the phrase 'same offence' was deciding whether illegal mining of sand under Mines and Minerals (Development and Regulations) Act 1957 would oust the invocation and application of Section 378 and Section 379 of IPC. Sections 378 and 379 concern theft. While rejecting the argument for ousting the jurisdiction of IPC, the Supreme Court laid down that that if the ingredients of both the offences are different, the principle of double jeopardy will not apply.

Applying the principles of Sharat Babu's case and Sanjay's case, the Bombay High Court held the IT Act is a complete code in itself and a special enactment for various aspects of electronic data and computer systems. It held that the offences in question are covered under the IT Act and therefore such a special law (i.e. the IT Act) would override the general law (i.e. the IPC). The Court found that the offence in question involved the use of computer source code and computer systems for stealing software, an offence covered under Section 43 and Section 66 of the IT Act. It further held that the definition of 'dishonestly' and 'fraudulently' as stated under Section 66 referred to the IPC. It was found that if an offender is prosecuted under both enactments, it would amount to being prosecuted for the same offence as the ingredients of the offence alleged under IT Act are the same as compared to the offence alleged IPC. Hence, would amount to a violation of the principle of double jeopardy.

The Bombay High Court relied on the principle of lex specialis derogat legi generali (special law repeals general law) and emphasized that the application of a special law will override the application of a general law in a situation where there is a conflict between the two.

Accordingly, the Bombay High Court quashed the proceedings under the IPC against the petitioners. 

Comment

The judgments of the Supreme Court in Sharat Babu and Sanjay's case and the Bombay High Court provide much needed clarity when offences under IT Act and IPC are alleged. It is normal practice while filing complaints under IT Act to also mechanically insert provisions of IPC. Now, it would require much deliberation. Interestingly, where the offence under IPC is non bailable or non-compoundable but bailable and compoundable under IT Act or other similar provisions, it can always be argued that benefit of the later act, being a special law, will ensue to the accused, provided however that ingredients of the offence under the different statutes is same.

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

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