THE STATE OF UTTAR PRADESH versus AMAN MITTAL & ANR. on 4 September 2019

SUPREME COURT REPORTS

[2019] 11 S.C.R.

ATHE STATE OF UTTAR PRADESH

v.

AMAN MITTAL & ANR.

(Criminal Appeal Nos. 1328-1329 of 2019)

BSEPTEMBER 04, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Legal Metrology Act, 2009:

ss.3 and 51 - Proceedings u/ss. 265, 267, 420, 34, 120B, 467,C468 and 471 of IPC; u/ss. 3 and 7 of Essential Commodities Act,1955; u/ss. 12/30 of Weights and Measures Act, 1976 and u/ss.12/30 of the Legal Metrology Act - Applicability of the provisions ofIPC - Held: The Act is a special Act vis-a-vis IPC - Section 3 ofthe Act completely overrides the provisions of Chapter XIII of IPCin respect of the offences and penalties imposable for violationsDof the provisions of the Act, it being a special Act - Therefore, ifoffence is made out under the provisions of the Act, an accusedcannot be charged for the same offence under Chapter XIII of IPC- Section 51 of the Act also makes it clear that the provisions ofIPC insofar as they relate to offences with regard to weight andmeasure shall not apply to any offence punishable under the ActE- However, all the offences under IPC are not excluded - The Actdoes not foresee any offence u/s. 415, 467, 468, 471, 34 or 120-B of IPC - Since such offences are not punishable under the Act,the prosecution for such offences will be maintained - Offences u/ss.265 and 267 which fall under Chapter XIII of IPC alone areFliable to be quashed - Penal Code, 1860 - Chapter XIII.

s.51 - Proceedings for the offences under the LegalMetrology Act - Applicability of provisions u/s.153 of Cr.P.C. -Held: Power of search and seizure in respect of weights andmeasures is vested with the Designated Authorities under the Act,hence in view of s.51, entire Cr.P.C. is inapplicable in respect ofGprosecution under the Act - Code of Criminal Procedure, 1973 -s.153.

Code of Criminal Procedure, 1973:

s.482 - Jurisdiction under - Scope of - Held: Directions ofHigh Court against the interest of the accused in the petition u/H

s.482 filed by the accused, are beyond the jurisdiction of the HighCourt - Order by the High Court directing disciplinary actionagainst erring officials in a petition u/s.482 seeking quashing ofcharge-sheet, is also beyond the scope of jurisdiction of HighCourt.

Partly allowing the appeals, the Court

HELD: 1.1 The Act is a special Act vis-à-vis IPC. Section51 of the Legal Metrology Act, 2009 provides that the provisionsof IPC and of Section 153 of Cr.P.C. insofar as such provisionsrelate to offences with regard to weight and measures only shallnot apply to any offence which is punishable under the Act.Section 153 of Cr.P.C permits an officer in charge of policestation to enter any place for the purpose of inspecting orsearching any weights or measures or instruments for weighing,used or kept therein. Section 153 of Cr.P.C has been madeinapplicable under the Act as power of search and seizure isvested with the designated authorities under the Act. Therefore,the entire Cr.P.C is inapplicable in respect of the prosecutionunder the Act that the police cannot enter any place for thepurpose of inspecting or searching for any weights or measures.Section 3 of the Act completely overrides the provisions ofChapter XIII of IPC in respect of the offences and penaltiesimposable for violations of the provisions of the Act, it beingspecial Act. Therefore, if the offence is disclosed to be madeout under the provisions of the Act, an accused cannot becharged for the same offence under Chapter XIII of IPC.Therefore, the provisions of IPC which relate to offences withregard to weight and measure as contained in Chapter XIII ofIPC alone will not apply. No person can be charged for an offencerelating to weight or measure falling under Chapter XIII of IPCin view of the provisions of the Act. The offences underSections 265 and 267 IPC are liable to be quashed. [Paras 31,33, 34 and 36] [1202-E-G; 1201-A; 1203-A-C-G]

1.2 The scheme of the Act is for the offences for use ofweights and measures which are non-standard and for tamperingwith or altering any standards, secondary standards or workingstandards of any weight or measure. The Act does not foreseeany offence relating to cheating as defined in Section 415 of IPCor the offences under Sections 467, 468 and 471 of IPC.

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ASimilarly, an act performed in furtherance of a common intentiondisclosing an offence under Section 34 is not covered by theprovisions of the Act. An offence disclosing a criminal conspiracyto commit an offence which is punishable under Section 120-BIPC is also not an offence under the Act. Since such offencesare not punishable under the provisions of the Act, therefore,Bthe prosecution for such offences could be maintained since thetrial of such offences is not inconsistent with any of theprovisions of the Act. Similar is the provision in respect of theoffences under Sections 467, 468, 471 IPC as such offences arenot covered by the provisions of the Act. [Para 35] [1203-D-F]

CState of Maharashtra v. Sayyed Hassan 2018 (11)SCALE 317 ; Sangeetaben Mahendrabhai Patel v.State of Gujarat & Anr. (2012) 7 SCC 621 : [2012] 3SCR 1155 - relied on.

Sharat Babu Digumarti v. Government (NCTDof Delhi) (2017) 2 SCC 18 : [2016] 8 SCR 1015 -distinguished.

2. The directions of the High Court in proceedings underSection 482 of Cr.P.C. against the interest of the accused in apetition filed by the accused are beyond the jurisdiction of theEHigh Court and, thus, all such observations and directions arequashed. The directions issued by the High Court that the erringofficers/officials named in the supplementary report shall besubject to disciplinary action are again beyond the scope of theHigh Court in a petition under Section 482 of Cr.P.C. seekingquashing of the charge-sheet and are, thus, quashed. [Para 36]F[1203-H; 1204-A-B]

3. It is open to the investigating agency to charge theaccused for such offences or any other offence by way of asupplementary report or at a subsequent stage during trial asconsidered appropriate by the investigating agency. [Para 36]G[1204-C]

M.C. Abraham and Another v. State of Maharashtraand Others (2003) 2 SCC 649 : [2002] 5 Suppl. SCR677 ; Khoday Distilleries Ltd. & Ors. v. SriMahadeshwara Sahakara Sakkare Karkhane Ltd.H(2019) 4 SCC 376 : [2019] 3 SCR 411 ; Macquarie Bank Limited v. Shilpi Cable Technologies Limited(2018) 2 SCC 674 : [2017] 13 SCR 751 - referred A

to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 1328-1329 Of 2019.

From the Judgment and Order dated 04.10.2017 and 09.11.2017of the High Court of Judicature at Allahabad (Lucknow Bench) inCriminal Misc. Application No. 4211 of 2017.

D

With

Criminal Appeal Nos. 1330-1331, 1332 of 2019

Vinod Diwakar, AAG, Mukul Rohatgi, B. N. Dubey, SayandeepPahari, Ms. Garima Prasad, Mrs. Swarupama Chaturvedi, Mrs. PragyaBaghel, Sameer Rohatgi, Ms. Devanshi, S. Chakraborty, Ms. HarshitaVerma (for M/s. Legal Options), Advs. for the appearing parties.

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The Judgment of the Court was delivered by HEMANT GUPTA, J.

Crl. Appeal Nos. 1328-1329 of 2019 (@SLP (Criminal)Nos.9981-9982 of 2017)

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AND

Crl. Appeal Nos. 1330-1331 of 2019 (@SLP (Criminal)

Nos.1912-1913 of 2017)

1. Leave granted.

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2. The order dated October 4, 2017 passed by the LucknowBench of the High Court of Judicature at Allahabad is the subject matterof challenge in these appeals.

3. An FIR No. 130 was lodged on April 28, 2017 with PoliceStation Cantt, Lucknow for the offences punishable under Sections 265, H

A267, 420, 34, 120-B of the Indian Penal Code, 1860[1] and Sections 3/7of the Essential Commodities Act, 1955[2] in respect of short delivery ofpetrol and diesel by 200-220 ml. on each sale of 5 liters.

4. On April 27, 2017, the Special Task Force[3] of the State Policetook up the investigation into the commission of offence viz. shortBdelivery of petroleum products i.e. high-speed diesel and motor spiritat various retail outlets operating within the city of Lucknow. The STFwith the aid of officers of the Department of Weight and Measuresand the District Administration raided the premises of the retail outlets.The team found that 15 nozzles connected to four machines i.e.Cdispensing units with seals intact were operative and functional. Thetesting was carried out in the presence of Apar Nagar Magistrate, twoInspectors of Weights and Measures Department and the partners ofthe firm M/s. Shiv Narain & Sons and its Manager. As per the inspectionmemo recorded on April 27, 2017, out of 15 nozzles, 10 nozzles wereused for sale of petrol and the remaining 5 nozzles were used for saleDof diesel. 13 nozzles were involved in malpractice of short delivery. Theteam derived 5 liters of petrol and diesel respectively in the testing workstandard measurement kept at the outlet but on calibration, it was foundthat the quantity of 200 ml. was short. For such short delivery, the FIR,as mentioned above, was lodged.E

5. In the FIR, it is alleged that some electronic chip was fixedinside the dispensing unit which was operated through a remote. Threeremote controls bearing Nos. 2, 3 and 4 were recovered and two remotecontrols were recovered without any numbers. The inspection team alsoverified the storage of stocks available as on date in the undergroundFtanks by using a dip rod. On verification of actual stock, the comparativerecord maintained by the dealer was found to be inconsistent ratherthe stock available was found to be excessive and was recordedaccordingly. The dispensing machines were sealed by the inspectionteam and the sale was immediately stopped. The accused were arrestedon April 28, 2017. Later, on June 1, 2017, the Investigating Officer alongGwith seven persons including the City Magistrate visited the retail outletand with the help of technicians hired from General Energy ManagementSystems Pvt. Ltd. opened the dispensing machines. The seals were 1 IPC

2 Act, 1955H3 STF

found intact both at the initial stage of inspection i.e. on April 27, 2017and on June 1, 2017. The electronic chips fixed inside the 24 dispensingunits were taken into custody by the Investigating Officer. Suchelectronic chips recovered on June 1, 2017 are now with ForensicScience Laboratory, Lucknow for its forensic report. The Magistrateon an application made by the Investigating Officer allowed the judicialremand of accused vide order dated June 7, 2017 and also permittedthe investigation under Sections 467, 468, 471 IPC and Sections 12/30of the Legal Metrology Act, 2009[4].

6. It is on the basis of investigations carried out, the charge-sheetdated July 25, 2017 for the offences under Sections 265, 267, 420, 34,120B IPC and Sections 3 and 7 of the Act, 1955, Sections 467, 468,471 IPC and Sections 12/30 of the Weights and Measures Act, 1976came to be filed before the competent court. The Magistrate did nottake cognizance of offence under Sections 471 and 120B of IPC forwant of evidence but the Magistrate has taken cognizance of an offenceunder Section 30 of the Act.

7. It is thereafter two applications were filed under Sections167(2) and 190(1) of the Code of Criminal Procedure, 1973[5] on July26, 2017 on the ground that the prosecution has no material makingout a case of offences mentioned in the chargesheet, therefore, thecognizance may not be taken. The learned Magistrate rejected boththe applications on July 27, 2017. It is thereafter the petition was filedunder Section 482 of the Code before the High Court, which wasdecided by an order impugned in the present appeal. The High Courthas passed a detailed order examining the following questions of law:

“(i) Whether in view of the promulgation of Legal Metrology Act,2009, the offences relating to weights and measures particularlyshort delivery of petroleum products sold to the public at largethrough dispensing machines, are open to be registered andinvestigated by the police authorities in terms of the provisionsof IPC and Code of Criminal Procedure or the provisions of IPCand Cr.P.C. for the said purpose would stand ousted/obliterated/eclipsed by virtue of Section 51 of Legal Metrology Act, 2009;

(ii) Whether the Legal Metrology Act and the EssentialCommodities Act and the procedure envisaged thereunder has 4 Act 5 Code A

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Aan overriding effect over the provisions of Code of CriminalProcedure insofar as the investigation/search and seizure inrespect of the offences relating to weights and measures areconcerned.

(iii) Whether the investigation held by the investigating officerBassuming as if the same was permissible, has been held inconsonance with the relevant law applicable as on the date ornot and if not, its effect;

(iv) Whether the court below while taking cognizance of theoffences has passed the orders in accordance with the well-settledCprinciples of law and if not, its effect.

(v) Directions and directives necessary in the case.”

8. It was held that the Code is applicable so long as a differentprocedure is not prescribed under the special law with respect to theDcognizable or non-cognizable offences but application of the provisionsof IPC has to be understood within the broader scope of special law inthe light of exclusionary provision embodied therein. Thus, consideringSections 3 and 51 of the Act, the High Court held as under:

“From a conjoint reading of this provision with the other provisionsEof the Act, the logical conclusion to serve the purpose of the Act,2009 that can be deduced is that all other offences under theLegal Metrology Act, 2009 except the offence under Section 26are non-cognizable and compoundable when committed for thefirst time; whereas the offence under Section 26 of the Act is aFnon-cognizable offence triable as per the procedure prescribedunder the Code of Criminal Procedure and the other offenceswhen committed second time as well. Thus, the procedure ofinvestigation, inquiry and trial under the Cr.P.C. would accordinglyapply inasmuch as, no procedure in relation thereto is prescribedGunder the Special Act.”

9. It was further held that Section 26 of the Act overrides theprovisions of Sections 264 to 267 of IPC as Section 51 of the Act clearlyexcludes the application of IPC and Section 153 of the Code insofaras it relates with regard to weights and measures punishable under theHspecial Act. The High Court held as under:

“The violation of any provision of the Special Act or Section 26once noticed against any offender, as is the situation in thepresent case, it would not attract violation of Section 264 to 267IPC at all and the prosecution is bound to be guided by therelevant provisions under the Special Act. The Special Act hasreplaced the entire Chapter by defining the offences of alldescriptions and classified them in the nature of non-cognizablecompoundable offences, as such, the procedure deserves to beapplied accordingly as per the classification of offences againstother laws in the first schedule of Cr.P.C. insofar as criminalprosecution is concerned.”

10. The High Court ordered that the trial court has not takencognizance of offence under Sections 34, 120B, 471 of IPC or 26 ofthe Act. Therefore, there is no reason as to why the Court may nottake into account such materials for the purposes of taking cognizanceof the offences, in the light of the orders passed on July 7, 2017 andAugust 17, 2017. The High Court held that Sections 467, 468, 471, 120-B and 34 of IPC stand clearly attracted.

11. In respect of third question, the High Court directed theDistrict Judge, Lucknow to ascertain the quantitative and qualitativefigures of the residual stock lying in the underground tanks and allowthe stock to be delivered to the oil company for custody after duecalibration through the dispensing pumps installed. The High Court issuedthe following directions:

“(i) The Investigating Officer assigned the duty of investigationin case crime no. 130/2017 shall stand changed forthwith andthe Superintendent of Police (City), North, Lucknow at presentis hereby directed to take over the further investigation andcooperate with the District Judge, Lucknow to deliver the custodyof petrol/diesel in the seized underground tanks to the respectiveoil company after due calibration of the same through thedispensing units. The District Judge/Investigating officer shallcollect the samples for quality and quantity checks both in thecalibrated containers to be provided by the department of Weightsand Measures and oil company immediately on demand. Thesamples shall be collected as per the procedure of samplecollection provided for quality/quantity check specified in thestatutory Order, 2005; AB

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(ii) The District Judge, Lucknow jointly with the investigatingofficer authorised hereinabove shall submit the calibration reportof the residual stock to the court concerned not later than a periodof 15 days from the date a copy of this order is communicatedto them by the Senior Registrar of this Court;

(iii) The investigating officer appointed hereinabove, in associationwith the District Judge, Lucknow, shall jointly forward the reportof calibration of the stock in the respective tanks by dulycomparing the figures mentioned in the seizure memo/F.I.R. andresultant excessive figures be mentioned in clear figures takingaid of the totaliser reading in each dispensing unit alongwith theirphotographic evidence at the time of start/finish;

(iv) For the purposes of sample reports, the District Judge/investigating officer are jointly authorised to requisition the qualitycheck from any of the nearest defence laboratories notified inthe statutory Order, 2005 and quantity check from any of thecentres mentioned in para-22 of the counter affidavit sworn bythe Chief Secretary, Government of U.P. The reports shall becalled for expeditiously and may be requested to be supplied notlater than a period of 6 weeks from the date of submission ofthe samples. The reports so obtained may be filed in therespective courts by the investigating officer after endorsementby the District Judge;

(v) The seized dispensing machines be released to the owner assoon as the residual stock in the underground tanks is handedover to the oil company concerned for which the oil companyshall provide all the transport and custodial facility besidesoperational guidance to the investigating officer and learnedDistrict Judge, without asking for any remuneration;

(vi) The investigating officer shall submit the supplementary reportin terms of the observations made in this judgement not later thana period of two months, by taking over all the materials and recordfrom the previous investigating officer in the form in whichdiscovery and seizure were made; and

(vii) The oil companies henceforth shall make use of collapsiblepulsers essential in the dispensing machines in order to preventmalpractices. Thus, the State Government is directed to implementthe installation of such a device in consultation with the oil companies within a planned time framework of not later than fourmonths.”

12. The State as well as one of the accused are in appeal beforethis Court. At the outset, learned counsel for the parties stated that thedirections issued by the High Court cannot be sustained in law, therefore,they have no objection if such directions are set aside. Such directionsare liable to be set aside in view of the fact that the High Court, whileexercising jurisdiction under Section 482 of the Code, cannot interferein the manner of investigation, in terms of the Judgment of this Courtin M. C. Abraham and Another v. State of Maharashtra and Others[6]wherein it was held as under: - “13. This Court held in the case of J.A.C. Saldanha [(1980) 1SCC 554: 1980 SCC (Cri) 272] that there is a clear-cut and well-demarcated sphere of activity in the field of crime detection andcrime punishment. Investigation of an offence is the fieldexclusively reserved by the executive through the policedepartment, the superintendence over which vests in the StateGovernment. It is the bounden duty of the executive toinvestigate, if an offence is alleged, and bring the offender tobook. Once it investigates and finds an offence having beencommitted, it is its duty to collect evidence for the purpose ofproving the offence. Once that is completed and the investigatingofficer submits report to the court requesting the court to takecognizance of the offence under Section 190 of the Code ofCriminal Procedure, its duty comes to an end. On cognizance ofthe offence being taken by the court, the police function ofinvestigation comes to an end subject to the provision containedin Section 173(8), then commences the adjudicatory function ofthe judiciary to determine whether an offence has been committedand if so, whether by the person or persons charged with thecrime. In the circumstances, the judgment and order of the HighCourt was set aside by this Court.”

13. Therefore, the directions issued including in respect of changeof Investigating Officer and that the District Judge to be associatedwith various action, falling exclusively in the domain of the InvestigatingAgency are patently beyond the scope of the petition under Section482 of the Code and are, therefore, liable to be set aside.

6 (2003) 2 SCC 649

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14. Learned counsel for the State vehemently argued that theAct does not exclude the offences under IPC. It is contended that theAct provides for the offences and penalties but reading of Sections 3and 51 of the Act does not exclude the offences under the IPC. TheAct will override only those offences which are inconsistent with theoffences under IPC, except to the extent specified in the Act.

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15. Learned counsel for the State relied upon an order passedby this Court in State of Maharashtra v. Sayyed Hassan[7]wherein,while interpreting the provisions of Food and Safety Standards Act,2006, it was held that the provisions of the said Act is not the onlyprovision that can be resorted to, the prosecution can be lodged for theCoffences under IPC as well. Learned counsel for the State also reliedupon an order passed by this Court in Sangeetaben MahendrabhaiPatel v. State of Gujarat & Anr.[8] wherein, for a dishonour of cheque,the prosecution for an offence under Section 420 IPC was found to bemaintainable even after the prosecution under Section 138 of theDNegotiable Instruments Act, 1881[9] is lodged. It was held that the mensrea i.e. fraudulent or dishonest intention at the time of issuance ofcheque is not required to be proved in proceeding of an offence underSection 138 of the NI Act, whereas in the case under IPC, the issueof mens rea is relevant. It was held that the offences under Section420 of IPC and Section 138 of NI Act are different, may on same facts.

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16. On the other hand, Mr. Mukul Rohatgi, learned senior counselfor the accused argued that the Act is a complete Code providing forthe standards of the weights and measures, the manner in which thesame are required to be tested and also the offences for which theaction can be taken. Since the Act is a special statute having overridingFeffect, therefore, the accused cannot be charged for the offences underIPC. Reliance is placed upon judgment of this Court in Sharat BabuDigumarti v. Government[10] (NCT of Delhi) as also the Division Benchjudgment of Bombay High Court in Gagan Harsh Sharma & Anr. v.The State of Maharashtra & Anr.[11] whereby, considering theprovisions of the Information Technology Act, 2000[12] , it was held thatGthe offence under IPC cannot be lodged. It is pointed out that special 7 Criminal Appeal No. 1195 of 2018 decided on September 20, 2018

8 (2012) 7 SCC 621

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11 Criminal Writ Petition No. 4361 of 2018 decided on October 26, 2018H12 IT Act leave petitions filed against the said judgment were dismissed by thisCourt on December 7, 2018.

17. In this background, the arguments raised by learned counselfor the parties need to be examined but before we examine thearguments, certain provisions from the applicable statutes may bereproduced hereunder:

“THE LEGAL METROLOGY ACT, 2009

2(g). “Legal Metrology” means that part of metrology whichtreats units of weighment and measurement, methods ofweighment and measurement and weighing and measuringinstruments, in relation to the mandatory technical and legalrequirements which have the object of ensuring public guaranteefrom the point of view of security and accuracy of theweighments and measurements;

3. The provisions of this Act shall have effect notwithstandinganything inconsistent therewith contained in any enactment otherthan this Act or in any instrument having effect by virtue of anyenactment other than this Act.

26. Whoever tampers with, or alters in any way, any referencestandard, secondary standard or working standard or increasesor decreases or alters any weight or measure with a view todeceiving any person or knowing or having reason to believe thatany person is likely to be deceived thereby, except where suchalteration is made for the correction of any error noticed thereinon verification, shall be punished with fine which may extend tofifty thousand rupees and for the second and subsequent offencewith imprisonment for a term which shall not be less than sixmonths but which may extend to one year or with fine or withboth.

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30. Penalty for transactions in contravening of standardweight or measure. - Whoever- A

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(a) in selling any article or thing by weight, measure or number,delivers or causes to be delivered to the purchaser anyquantity or number of that article or thing less than thequantity or number contracted for or paid for; or (b) in rendering any service by weight, measure or number,Brenders that service less than the service contracted for orpaid for; or

(c) in buying any article or thing by weight, measure or number,fraudulently receives, or causes to be received any quantityor number of that article or thing in excess of the quantityor number contracted for or paid for; or C

(d) in obtaining any service by weight, measure or number,obtains that service in excess of the service contracted foror paid for, shall be punished with fine which may extendDto ten thousand rupees, and; for the second or subsequentoffence, with imprisonment for a term which may extendto one year, or with fine, or with both.

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51. The provisions of the Indian Penal Code and section 153 ofthe Code of Criminal Procedure, 1973 in so far as such provisionsrelate to offences with regard to weight or measure, shall notapply to any offence which is punishable under this Act.”

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“THE CODE OF CRIMINAL PROCEDURE, 1973

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153. Inspection of weights and measures.-(1) Any officer incharge of a police station may, without a warrant, enter any placewithin the limits of such station for the purpose of inspecting orsearching for any weights or measures or instruments forweighing, used or kept therein, whenever he has reason tobelieve that there are in such place any weights, measures orinstruments for weighing which are false.

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(2) If he finds in such place any weights, measures or instrumentsfor weighing which are false, he may seize the same, and shallforthwith give information of such seizure to a Magistrate havingjurisdiction.”

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“THE INDIAN PENAL CODE, 1860

265. Fraudulent use of false weight or measure.-Whoeverfraudulently uses any false weight or false measure of length orcapacity, or fraudulently uses any weight or any measure oflength or capacity as a different weight or measure from whatit is, shall be punished with imprisonment of either descriptionfor a term which may extend to one year, or with fine, or withboth.

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267. Making or selling false weight or measure.-Whoever makes,sells or disposes of any instrument for weighing, or any weight,or any measure of length or capacity which he knows to be false,in order that the same may be used as true, or knowing that thesame is likely to be used as true, shall be punished withimprisonment of either description for a term which may extendto one year, or with fine, or with both.”

18. We do not find any merit in the argument of Mr. MukulRohatgi that the Act is a complete Code which contains the provisionsof offences and penalties under the said Act, therefore, for any violationof the provisions of the Act, the prosecution can be lodged only underthe Act and not for the offences even if disclosed under IPC.

19. In Sharat Babu Digumarti, an FIR was lodged for theoffences under Sections 292 and 294 of IPC and Section 67 of IT Act.This Court struck down the offences under Sections 292 and 294 ofIPC in view of the provisions of Section 67 of the IT Act.

20. The question examined was as to whether an activityemanating from electronic form which may be obscene would bepunishable under Section 292 IPC or Section 67 of the IT Act or bothor any other provision of the IT Act. This Court held that Section 292IPC makes offence sale of obscene books, etc. but once the offencehas a nexus or connection with the electronic record the protection andeffect of Section 79 cannot be ignored and negated in view of specialprovision for a specific purpose. The IT Act has to be given effect toso as to make the protection effective and true to the legislative intent.The Court held as under:

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A“31. Having noted the provisions, it has to be recapitulated thatSection 67 clearly stipulates punishment for publishing,transmitting obscene materials in electronic form. The saidprovision read with Sections 67-A and 67-B is a complete coderelating to the offences that are covered under the IT Act. Section79, as has been interpreted, is an exemption provision conferringBprotection to the individuals. However, the said protection hasbeen expanded in the dictum of Shreya Singhal [Shreya Singhalv. Union of India, (2015) 5 SCC 1 : (2015) 2 SCC (Cri) 449]and we concur with the same.

32. Section 81 of the IT Act also specifically provides that theCprovisions of the Act shall have effect notwithstanding anythinginconsistent therewith contained in any other law for the timebeing in force. All provisions will have their play and significance,if the alleged offence pertains to offence of electronic record. Ithas to be borne in mind that IT Act is a special enactment. ItDhas special provisions. Section 292 IPC makes offence sale ofobscene books, etc. but once the offence has a nexus orconnection with the electronic record the protection and effectof Section 79 cannot be ignored and negated. We are inclined tothink so as it is a special provision for a specific purpose andthe Act has to be given effect to so as to make the protectionEeffective and true to the legislative intent. This is the mandatebehind Section 81 of the IT Act. The additional protection grantedby the IT Act would apply.”

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21. The Bombay High Court in Gagan Harsh Sharma has foundthat even a dishonest and fraudulent act falls within the scope of SectionF66 of the IT Act and that the IT Act has been given overriding effectnotwithstanding anything inconsistent therewith, therefore, an offendergets out of net of IPC. It was held that IPC is a general statute whereasIT Act is a special statute and, therefore, special enactment wouldprevail. The Bombay High Court held as under:

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“11. Reading of the said judgment, makes is clear that the Hon'bleApex Court had considered the effect of the overriding provisionscontained in the Information Technology Act and has observedthat all the provisions in the enactment are of significanceparticularly if the alleged offences pertains to electronic record.HBy observing that the Information Technology Act is a special

enactment and it contain special provision, the Hon'ble ApexCourt has also considered the effect of Section 79 contained inthe Information Technology Act which is enacted for a specificpurpose and has observed that the mandate behind Section 81of the Information Technology Act needs to be understood in itsproper perspective. It referred to the earlier precedents on thepoint where a special statute is pitted against a Generalenactment and thereafter has concluded by making referenceSection 79 and 81 that once the special provisions are accordedoverriding effect to cover a criminal Act, the offender gets outof the net of the Indian Penal Code and in the case in hand ofSection 292.

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21. Keeping the aforesaid authoritative pronouncements in mind,if the scheme of the Information Technology Act will have to beexamined and given effect too. The said Act which is a specialenactment so as to give fillip to the growth of electronic basedtransactions, and to provide legal recognition for E-commerce and,to facilitate E-Governance and to Ensure Security Practice andProcedures in the context of the use of Information TechnologyWorldwide. The said enactment contains a full fledge mechanismfor penalising certain acts which are committed withoutpermission of the owner or any other persons who is in chargeof a computer, computer system, or computer network and thoseacts are enumerated in Section 43. The said enactment also makescertain acts punishable and Chapter-XI of the InformationTechnology Act 2000 enumerates such acts. The same actswhich are enumerated in Section 43 of the enactment whichwould invite penalty and compensation for accessing or securingany information as contemplated in Section 43, would amount toan offence under Section 66 if any person, dishonestly,fraudulently commits such an act. The said Section has anexplanation appended to it to the effect that the word“dishonestly” and “fraudulently” used in the said Section will beassigned the same meaning as under the Indian Penal Code. Insuch circumstances when the Information Technology Act, 2000specifically provides a mechanism for dealing with an act coveredin Section 43(a) and (j):- AB

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“Section 43(a) Accesses or secures access to suchcomputer, computer system or computer network (orcomputer resource); 43(j) Steel, conceals, destroys or alters or causes anyperson to steal, conceal, destroy or alter any computerBsource code used for a computer resource with anintention to cause damage."

and if this is done with a fraudulent or dishonest intention, itbecomes an offence under Section 66 of the InformationTechnology Act. Since, the Information Technology Act deals withCthe use of means of electronic communication and has evolveda complete mechanism in itself to deal with the offences in theuse of electronic transactions, and in the backdrop of the specificfacts of the case in hand, Section 66 would be attracted and inview of the mechanism contained in the said section, theinvocation of the provisions of the Indian Penal Code is highlyDunwarranted. This view has already been authored by theirlordships in case of Sharat Babu Digumarti (Supra).”

22. It may be noticed that Bombay High Court considered thejudgment of this Court in Sayyed Hassan wherein this Court has heldthat an offence under Section 188 of IPC is wider in scope and did notEcover only breach of law but is attracted in cases where the actcomplained of causes or tends to cause danger to human life, health orsafety as well. The Court held as under:

“24. The aforesaid judgment of the Hon'ble Apex Court istherefore clearly distinguishable on facts but even the saidFjudgment of the Hon'ble Apex Court reiterates the settled positionof law that where an act or an omission constitutes for anoffence under two enactments the offender may be punishedunder either or both enactment but was not liable to be punishedtwice for the same offence. It is always possible that the sameGset of facts can constitute offence under two different laws buta person cannot be punished twice for the said act which wouldconstitute an offence.”

23. The special leave petition against the said order wasdismissed without any reasoned order but with the order “The SpecialHLeave Petitions are Dismissed”.

THE STATE OF UTTAR PRADESH v. AMAN MITTAL[HEMANT GUPTA, J.]

24. Though, the Special Leave Petition against the order of theBombay High Court was dismissed but in view of three Judge Benchjudgment in Khoday Distilleries Ltd. & Ors. v. Sri MahadeshwaraSahakara Sakkare Karkhane Ltd.[13] , the dismissal of special leavepetition does not amount to merger of the order of the High Court withthe order passed in the Special Leave Petition. This Court held as under:

“20. The Court thereafter analysed number of cases where ordersof different nature were passed and dealt with these judgmentsby classifying them in the following categories:

(i) Dismissal at the stage of special leave petition - withoutreasons - no res judicata, no merger. [Proposition based onjudgments in Workmen v. Cochin Port Trust, (1978) 3 SCC 119;Western India Match Co. Ltd. v. Industrial Tribunal, AIR 1958Mad 398; Indian Oil Corpn. Ltd. v. State of Bihar, (1986) 4 SCC146; Rup Diamonds v. Union of India, (1989) 2 SCC 356; Wilsonv. Colchester Justices, (1985) 2 All ER 97 (HL); Supreme CourtEmployees' Welfare Assn. v. Union of India, (1989) 4 SCC 187;Yogendra Narayan Chowdhury v. Union of India, (1996) 7 SCC1; V.M. Salgaocar & Bros. (P) Ltd. v. CIT, (2000) 5 SCC 373;Sree Narayana Dharmasanghom Trust v. Swami Prakasananda,(1997) 6 SCC 78 and State of Maharashtra v. Prabhakar BhikajiIngle, (1996) 3 SCC 463.

(ii) Dismissal of the special leave petition by speaking or reasonedorder - no merger, but rule of discipline and Article 141 attracted.[Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965SC 195; Abbai Maligai Partnership Firm v. K.Santhakumaran, (1998) 7 SCC 386; Shankar RamchandraAbhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74;Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774;Gopabandhu Biswal v. Krishna Chandra Mohanty, (1998) 4SCC 447; Junior Telecom Officers Forum v. Union of India,1993 Supp (4) SCC 693 and Supreme Court Employees'Welfare Assn. Case, (1989) 4 SCC 187.

(iii) Leave granted - dismissal without reasons - merger results.[Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC1372].”

“26. From a cumulative reading of the various judgments, we sumup the legal position as under:

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A26.1.xxxxxx

26.2. We reiterate the conclusions relevant for these cases asunder: (Kunhayammed case [Kunhayammed v. State ofKerala, (2000) 6 SCC 359], SCC p. 384)

“(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attractthe doctrine of merger. An order refusing special leave to appealdoes not stand substituted in place of the order under challenge.All that it means is that the Court was not inclined to exerciseits discretion so as to allow the appeal being filed.”

B

C25. The Bombay High Court in Gagan Harsh Sharma has foundthat even a dishonest and fraudulent act falls within the scope of Section66 of IT Act. We are not called upon in the present appeals to examinewhether an accused can be tried for an offence under IPC in view ofSection 66 of IT Act. Such question can be raised and decided in anappropriate case.D

26. In Sayyed Hassan, the Court held that Section 55 of Foodand Safety Standards Act, 2006 being a specific provision made in thespecial enactment but still an offence under Section 188 of IPC is madeout. The Court held as under:

“8. There is no bar to a trial or conviction of an offender underEtwo different enactments, but the bar is only to the punishmentof the offender twice for the offence. Where an act or anomission constitutes an offence under two enactments, theoffender may be prosecuted and punished under either or bothenactments but shall not be liable to be punished twice for theFsame offence [T.S. Baliah v. T.S.Rengachari - (1969) 3 SCR65]. The same set of facts, in conceivable cases, can constituteoffences under two different laws. An act or an omission canamount to and constitute an offence under the IPC and at thesame time, an offence under any other law [State of Bihar v.Murad Ali Khan - (1988) 4 SCC 655]. The High Court ought toGhave taken note of Section 26 of the General Clauses Act, 1897which reads as follows:

“Provisions as to offences punishable under two or moreenactments - Where an act or omission constitutes anoffence under two or more enactments, then theoffender shall be liable to be prosecuted and punished under either or any of those enactments, but shall notbe liable to be punished twice for the same offence.”

27. However, the question as to whether the offences underSections 188, 272, 273 and 328 IPC have been made out against therespondents in the facts of that case, the matter was remitted back tothe High Court to examine the contentions of respective parties.

28. The Sharat Babu Digumarti is a judgment dealing withobscenity in the electronic form. This Court has held that IT Act is aspecial enactment. Since the offence has nexus or connection with theelectronic record the protection and effect of Section 79 cannot beignored and negated. Section 292 IPC makes sale of obscene booksas an offence which cannot be made out in view of special provisionmade in the IT Act. The said judgment is, that an offence pertaining toelectronic record falls within Section 67 of the IT Act, whereas, Section292 IPC deals with an offence of obscenity in the printed format,therefore, two offences operate in different field.

29. In Sangeetaben Mahendrabhai Patel, a subsequent FirstInformation Report under Sections 406, 420 read with 114 of IPC waschallenged on the ground that the accused has been tried earlier for anoffence under Section 138 of the NI Act and that accused cannot becharged for the offence of criminal breach of trust, cheating andabetment pertaining to the cheque for which proceedings were initiatedunder Section 138 of the NI Act. In the said case, the Court held thatthere may be overlapping of facts in both the cases but the ingredientsof the offences are entirely different. Thus, the subsequent case is notbarred by any of the provisions of the NI Act. The Court held as under:

"37. Admittedly, the appellant had been tried earlier for theoffences punishable under the provisions of Section 138 of theNI Act and the case is sub judice before the High Court. In theinstant case, he is involved under Sections 406/420 read withSection 114 IPC. In the prosecution under Section 138 of theNI Act, the mens rea i.e. fraudulent or dishonest intention at thetime of issuance of cheque is not required to be proved. However,in the case under IPC involved herein, the issue of mens rea maybe relevant. The offence punishable under Section 420 IPC is aserious one as the sentence of 7 years can be imposed.

38. In the case under the NI Act, there is a legal presumptionthat the cheque had been issued for discharging the antecedent A

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liability and that presumption can be rebutted only by the personwho draws the cheque. Such a requirement is not there in theoffences under IPC. In the case under the NI Act, if a fine isimposed, it is to be adjusted to meet the legally enforceableliability. There cannot be such a requirement in the offences underIPC. The case under the NI Act can only be initiated by filing acomplaint. However, in a case under IPC such a condition is notnecessary.

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39. There may be some overlapping of facts in both the casesbut the ingredients of the offences are entirely different. Thus,the subsequent case is not barred by any of the aforesaidstatutory provisions.”

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30. This Court in Sangeetaben Mahendrabhai Patel has upheldthe prosecution for an offence under Section 420 IPC even when theprosecution under Section 138 of NI Act was lodged earlier. This Courthas held that for an offence under Section 420 IPC, mens rea is anDessential ingredient for an offence under Section 138, the factum ofdishonour of cheque alone discloses an offence. Similarly, in SayyedHassan, this Court has held that the provision of Food and SafetyStandards Act, 2006 is not the only provision that can be resorted tofor lodging a prosecution. The prosecution can be lodged for theoffences under IPC as well.

E

31. Section 51 of the Act provides that the provisions of IPCand of Section 153 of the Code insofar as such provisions relate tooffences with regard to weight and measures only shall not apply toany offence which is punishable under the Act. Section 153 of theCode permits an officer in charge of police station to enter any placeFfor the purpose of inspecting or searching any weights or measures orinstruments for weighing, used or kept therein. Section 153 of the Codehas been made inapplicable under the Act as power of search andseizure is vested with the designated authorities under the Act.Therefore, the entire Code is inapplicable in respect of the prosecutionunder the Act that the police cannot enter any place for the purpose ofGinspecting or searching for any weights or measures.

32. The question required to be examined is whether all theoffences under IPC are excluded in view of Section 3 of the Act oronly the offences relating to the weights and measures as are containedin Chapter XIII IPC alone stand excluded in view of Section 51 of theHAct.

33. It cannot be disputed that the Act is a special Act vis-à-visIPC. In Macquarie Bank Limited v. Shilpi Cable TechnologiesLimited[14], this Court adopted a doctrine of harmonious construction tohold that there was clear disharmony between the two parliamentarystatutes which cannot be resolved by harmonious interpretation. ThisCourt held as under:

“44. Similarly, in CTO v. Binani Cements Ltd. [CTO v. BinaniCements Ltd., (2014) 8 SCC 319] , the rule of construction oftwo parliamentary statutes being harmoniously construed was laiddown as follows: (SCC pp. 332-33, para 35)

“35. Generally, the principle has found vast application incases of there being two statutes: general or specific withthe latter treating the common subject-matter morespecifically or minutely than the former. Corpus JurisSecundum, 82 C.J.S. Statutes § 482 states that whenconstruing a general and a specific statute pertaining to thesame topic, it is necessary to consider the statutes asconsistent with one another and such statutes thereforeshould be harmonised, if possible, with the objective of givingeffect to a consistent legislative policy. On the other hand,where a general statute and a specific statute relating tothe same subject-matter cannot be reconciled, the specialor specific statute ordinarily will control. The provision morespecifically directed to the matter at issue prevails as anexception to or qualification of the provision which is moregeneral in nature, provided that the specific or special statuteclearly includes the matter in controversy (Edmondv. United States [Edmond v. United States, 1997SCC OnLine US SC 45 : 137 L Ed 2d 917 : 520 US651 (1997)], Warden v. Marrero [Warden v. Marrero, 1974SCC OnLine US SC 136 : 41 L Ed 2d 383 : 417 US 653(1974)] ).”

xx

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47. Similarly, in R.S. Raghunath v. State of Karnataka [R.S.Raghunath v. State of Karnataka, (1992) 1 SCC 335 : 1992SCC (L&S) 286] , the non obstante clause contained in Rule 3(2)of the Karnataka Civil Services (General Recruitment) Rules,1977 was held not to override the Karnataka General Service 14 (2018) 2 SCC 674

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(Motor Vehicles Branch) (Recruitment) Rules, 1976. It was held:(SCC p. 348, para 13)

“13. As already noted, there should be a clear inconsistencybetween the two enactments before giving an overridingeffect to the non obstante clause but when the scope of theprovisions of an earlier enactment is clear the same cannotbe cut down by resort to non obstante clause. In the instantcase, we have noticed that even the General Rules of whichRule 3(2) forms a part provide for promotion by selection.As a matter of fact Rules 1(3)(a), 3(1) and 4 also providefor the enforceability of the Special Rules. The very Rule3 of the General Rules which provides for recruitment alsoprovides for promotion by selection and further lays downthat the methods of recruitment shall be as specified in theSpecial Rules, if any. In this background if we examine theGeneral Rules it becomes clear that the object of theseRules only is to provide broadly for recruitment to servicesof all the departments and they are framed generally tocover situations that are not covered by the Special Rulesof any particular department. In such a situation both theRules including Rules 1(3)(a), 3(1) and 4 of the GeneralRules should be read together. If so read it becomes plainthat there is no inconsistency and that amendment byinserting Rule 3(2) is only an amendment to the GeneralRules and it cannot be interpreted as to supersede theSpecial Rules. The amendment also must be read as beingsubject to Rules 1(3)(a), 3(1) and 4(2) of the General Rulesthemselves. The amendment cannot be read as abrogatingall other Special Rules in respect of all departments. In agiven case where there are no Special Rules then naturallythe General Rules would be applicable. Just because thereis a non obstante clause, in Rule 3(2) it cannot be interpretedthat the said amendment to the General Rules though laterin point of time would abrogate the special rule the scopeof which is very clear and which co-exists particularly whenno patent conflict or inconsistency can be spelt out. Asalready noted, Rules 1(3)(a), 3(1) and 4 of the GeneralRules themselves provide for promotion by selection and forenforceability of the Special Rules in that regard. Therefore,there is no patent conflict or inconsistency at all betweenthe General and the Special Rules.”

THE STATE OF UTTAR PRADESH v. AMAN MITTAL[HEMANT GUPTA, J.]

34. In the light of principles laid down, we find that Section 3 ofthe Act completely overrides the provisions of Chapter XIII of IPC inrespect of the offences and penalties imposable for violations of theprovisions of the Act, it being special Act. Therefore, if the offence isdisclosed to be made out under the provisions of the Act, an accusedcannot be charged for the same offence under Chapter XIII of IPC.Reading of Section 51 of the Act makes it clear that the provisions ofIPC insofar as they relate to offences with regard to weight or measure,shall not apply to any offence which is punishable under the Act.Therefore, the provisions of IPC which relate to offences with regardto weight and measure as contained in Chapter XIII of IPC alone willnot apply. No person can be charged for an offence relating to weightor measure falling under Chapter XIII of IPC in view of the provisionsof the Act.

35. The scheme of the Act is for the offences for use of weightsand measures which are non-standard and for tampering with or alteringany standards, secondary standards or working standards of any weightor measure. The Act does not foresee any offence relating to cheatingas defined in Section 415 of IPC or the offences under Sections 467,468 and 471 of IPC. Similarly, an act performed in furtherance of acommon intention disclosing an offence under Section 34 is not coveredby the provisions of the Act. An offence disclosing a criminalconspiracy to commit an offence which is punishable under Section 120-B IPC is also not an offence under the Act. Since such offences arenot punishable under the provisions of the Act, therefore, the prosecutionfor such offences could be maintained since the trial of such offencesis not inconsistent with any of the provisions of the Act. Similar is theprovision in respect of the offences under Sections 467, 468, 471 IPCas such offences are not covered by the provisions of the Act.

36. Thus, we partly allow the present appeals with the followingdirections:

(i) Directions given by the High Court, as mentioned in para11 above, are hereby quashed.

(ii) We uphold the order of the High Court that the offencesunder Sections 265 and 267 IPC are liable to be quashed.

(iii) The directions of the High Court in proceedings underSection 482 of the Code against the interest of the accusedin a petition filed by the accused are beyond the jurisdiction AB

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Aof the High Court and, thus, all such observations anddirections are quashed.

(iv) The directions issued by the High Court that the erringofficers/officials named in the supplementary report shall besubject to disciplinary action are again beyond the scope ofBthe High Court in a petition under Section 482 of the Codeseeking quashing of the charge-sheet and are, thus, quashed.

(v) It is open to the investigating agency to charge the accusedfor such offences or any other offence by way of asupplementary report or at a subsequent stage during trialas considered appropriate by the investigating agency.

C

(vi) In other words, the entire order of the High Court is setaside except the order which relates to the quashing of thecharges under Sections 265 and 267 IPC but it shall be opento the investigating agency to take such steps as arerequired to complete the investigation in accordance withDlaw.

Crl. Appeal No. 1332 of 2019 (@SLP (Criminal) No.3321 of 2018)

37. Leave granted.

38. The challenge in the present appeal is to an order passed byEthe High Court of Allahabad at Lucknow on November 24, 2017whereby, petition under Section 482 of the Code for quashing of CrimeNo.0313, P.S. Hasanganj dated April 28, 2017 for the offences underSections 265, 267, 420, 467, 468 and 34 IPC and Sections 3 and 7 ofthe Act, 1955 and Section 26/30 of the Act, filed by the appellant whois being prosecuted, was dismissed.

F

39. The present appeal was posted for final hearing along withCriminal Appeals arising out of SLP (Criminal) Nos. 9981-9982 of 2017and 1912-1913 of 2018. In the aforesaid case, it has been held thatthe offence under Chapter XIII of IPC cannot be lodged in view ofthe provisions of the Act whereas the prosecution under other offencesof IPC has been found to be maintainable.G

40. In view of the said fact, the present appeal is partly allowed.The offences under Sections 265 and 267 IPC are quashed in view ofthe reasons recorded in the aforesaid appeals.

Kalpana K. TripathyH

Appeals partly allowed.