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The Supreme Court has quashed criminal proceedings against a senior manager of a web intermediary for allegedly permitting sale of an MMS clip showing two school students from national capital indulging in a sexual act.
The apex court set aside the order of the Delhi High Court, saying it has erred that though charge has not been made out under section 67 (Punishment for publishing or transmitting obscene material in electronic form) of the Information Technology Act, the appellant could be proceeded against under Section 292 (sale etc of obscene books) of IPC.
A bench of Justices Dipak Misra and Prafulla C Pant held that when the special provisions having the overriding effect cover a criminal act, the offender gets out of the net of IPC.
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"It is apt to note here that electronic forms of transmission are covered by the IT Act, which is a special law. It is a settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC," the bench said.
"We are of the considered opinion that 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.
"Consequently, the appeal is allowed, the orders passed by the high court and the trial court are set aside and the criminal prosecution lodged against the appellant stands quashed," it added.
The criminal proceedings against another co-accused, who
was then the managing director of the web intermediary, were earlier quashed by the apex court.
The man was discharged from section 67 of the IT Act and Section 294 of the IPC by the trial court, but the charge under Section 292 of the IPC still remained against him.
The high court had refused to quash the charge, saying he could have stopped the clip from being uploaded but did not do so promptly.
His counsel argued in the apex court that the trial court erred by framing the charge against him for the offence of possessing the alleged obscene video clip even though it was independently uploaded by the registered user over whom the site had no control.
In December 2004, the Delhi police had registered an FIR against against the website and its officials for illegally displaying the video clip.
The website's officials were accused of allowing the MMS clip, recorded on a mobile phone camera, to be uploaded on the company's auction site in 2004.
