What Bombay High Court held on offences punishable under both Information Technology Act and IPC

When criminal offences are punishable under both a general law such as the Indian Penal Code (IPC) and a special law such as the Information and Technology Act (IT Act), the special law would prevail over the general law, the Bombay High Court recently held [Awadhesh Kumar Parasnath Pathak & Ors v State & Ors]..In other words, where an offence is penalised under both a general law and a special law, the general law (the IPC in this case) would usually be excluded and the offence would be punishable only under the special law (the IT Act),a three-judge Bench of Justices Mangesh S Patil, RG Avachat and Shailesh P Brahme said. However, the Court also clarified this general rule would not apply if the special law provision does not exhaustively deal with all the ingredients of the corresponding offence in the general law provision."Where an act is an offence under a special statute having an overriding effect over the offence covered by the general law like Indian Penal Code, …in order to exclude the general law or the offence therein, ingredients of the offence defined under the special statute and the Indian Penal Code will have to be the same," the Court explained in its judgment of April 15. .The Court made the observation while examining whether both IT Act provisions and IPC provisions can be invoked with respect to certain offences/ acts. The three-judge bench came to deal with this issue in view of a conflict between two Division Benches of the High Court..In particular, the three-judge examined whether Sections 43 read with Sections 66 and 72 of the IT Act (a special statute) could be invoked along with Sections 406, 408 and 420 of the IPC (a general law) with respect to the same act (s).“If even one ingredient of an offence under the Indian Penal Code is missing in the act which has been made punishable under the special statute, the Indian Penal Code section will not be excluded and still can be resorted to albeit, the provisions of section 71 of the Indian Penal Code and section 26 of the General Clauses Act will have to be borne in mind by the Courts while imposing the sentences,” the Court ruled..It noted that Section 43(b) of the IT Act, which deals with downloading or deleting computer data, introducing viruses etc. without the computer owner’s permission, does not cover such cases where permission is obtained to access the computer resource, albeit by cheating the computer owner.Similarly, Section 66 of the IT Act punishes fraudulent and dishonest access to or manipulation or extraction of computer data, but does not cover a scenario where such access is obtained by deceit or inducement."Though section 66 of the IT Act covers the ingredients of ‘fraudulently’ and ‘dishonestly’, it does not cover the element of ‘deceit’ which is an additional concomitant for constituting the act as ‘cheating’ as defined under section 415 of the Indian Penal Code," the Court explained..Meanwhile, these missing elements are present in the ingredients of offences defined under the provisions of the IPC, the Court pointed out.Similarly, the Court held that Section 72 of the IT Act only punishes acts that breach confidentiality and privacy without the consent of the individual concerned. It does not expressly cover cases where such a breach is done with a dishonest intention or where such a dishonest breach involves converting another’s property into one’s own. On the other hand, these missing ingredients are present in the IPC.Thus, the Court held that an accused can be tried under both the IT Act and the IPC when it comes to such cases..In other words, the Court concluded that the provisions of the IPC under Sections 408 (criminal breach of trust by clerk or servant), 409 (criminal breach of trust by public servant, or by banker, merchant or agent) and 420 (cheating and dishonestly inducing delivery of property) are not excluded from being invoked when it comes to dealing with offences where Sections 43, 66 and 72 of the IT Act are invoked..The Court also pointed out that while Section 34 (common intention) of the IPC specifically provides for scenarios where an offence is carried out because of a common intention shared by two or more offenders, no such corresponding provision is there in the IT Act."Ex facie, neither section 43 nor section 72 makes punishable an offence as defined therein when it is committed by two or more persons by sharing a common intention, neither is there any other provision in the IT Act which would demonstrate the legislature having comprehended a situation where these offences are committed by sharing a common intention as defined under section 34 of the Indian Penal Code," the Court held.Thus, acts done with common intention by two or more persons are not covered under the IT Act and can only be punished under the IPC, the Court pointed out.Advocates PP Uttarwar, RF Totala, Rahul Totala, Riya M Jariwal, Swapnil Lohiya, Ganesh S Yada, Vedant S Kabra, RA Karwa, Bharat Chugh, Tapan K Sant,Abhaykumar D Ostwal, PM Salunke, VL Bhange, SS Munit, RN Patil, Kiran Jadhav and Ajit Gaikwad Patil represented various parties in the several criminal applications.Public Prosecutor AB Girase appeared for the Maharashtra government..[Read Judgment]