The Supreme Court of India ruled that if no charge has been made out under Section 67 of IT Act (“Act”) in case of obscene material circulated over the internet, then the accused cannot be proceeded against under Section 292 of Indian Penal Code (“IPC”).
“It is 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 Court said.
After going through Section 67, 79 and 81 of PIC, the Court further added, “It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 of the IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.”