JUDGMENT :

Mangesh S. Patil, J. - We have heard both the sides extensively.

2. In view of conflict between a division bench which decided Gagan Harsh Sharma v. State of Maharashtra and others; (2019) CriLJ 1398 and a division bench dealing with Awadhesh Kumar Parasnath Pathak v. The State of Maharashtra and another and connected matters (Criminal Application 2562 of 2019, Aurangabad Bench - order dated 26-02-2020), the latter being unable to concur with the former, following questions have been referred to us for answers :

1) Whether Section 43 read with Section 66 of I.T. Act covers the cases:-

a) Involving the obtaining of permission, by cheating the owner or any other person, who is in charge of computer, computer system or computer network, and thereby induced the owner or person in charge of the computer, computer system or computer network for doing the act enumerated in Section 43 of the I.T. Act ?

b) The expression fraudulently or dishonestly covers the cases in which permission is obtained from the owner or person who is in charge of computer or computer system or computer network by cheating him ?

c) Whether Section 72 of the I.T. Act covers all the ingredients of Sections 406, 408, 409 of the Indian Penal Code especially cases in which access is secured dishonestly to any electronic correspondence, information, document or other material and the said electronic record correspondence, information, document or material in misappropriated or converted for one's own use?

d) Whether the acts done under Sections 43 or 72 of the I.T. Act cover the criminal acts done with common intention ?

3. By relying upon the decision of the Supreme Court in the matter of Sharat Babu Digumarti v. Government of NCT of Delhi; AIR 2017 SC 150, the division bench in Gagan Harsh Sharma held that even a dishonest and fraudulent act falls within the scope of section 66 of the Information Technology Act, 2000 (IT Act). Sections 79 and 81 give overriding effect and the offences pertaining to electronic record, covered by the IT Act being punishable under section 43 read with section 66 would take out the provisions of the Indian Penal Code. In Awadhesh Kumar Parasnath Pathak (supra), the division bench expressed, for the reasons mentioned in the order, that it was not agreeable with the observations in Gagan Harsh Sharma.

4. Incidentally, it is a matter of record that the decision in the matter of Gagan Harsh Sharma was challenged before the Supreme Court but the Special Leave Petition was dismissed. In the context of a similar interplay between the provisions of Legal Metrology Act, 2009 and the relevant offences under the Indian Penal Code, was dealt with by the Supreme Court in State of Uttar Pradesh v. Aman Mittal and another; (2019) 19 SCC 740. Similar issues were raised and even Gagan Harsh Sharma was cited before the Supreme Court together with the decision in the matter of Sharat Babu Digumarti. However, considering the fact situation in the matter of Gagan Harsh Sharma and observing that dismissal of the Special Leave Petition against the order would not amount to merger of the order passed by the High Court in the Supreme Court order, the issue was left open to be decided in an appropriate case with following observations in paragraph no. 25 :

"25. The Bombay High Court in Gagan Harsh Sharma v. State of Maharashtra, 2018 SCC Online Bom 17705 has found that even a dishonest and fraudulent act falls within the scope of Section 66 of the IT Act. We are not called upon in the present appeals to examine whether an accused can be tried for an offence under IPC in view of Section 66 of the IT Act. Such question can be raised and decided in an appropriate case."

5. However, the decision in Sharat Babu Digumarti was commented in following words :-

"28. Sharat Babu Digumarti v. State (NCT of Delhi), (2017) 2 SCC 18 is a judgment dealing with obscenity in the electronic form. This Court has held that the IT Act is a special enactment. Since the offence has