Kerala High Court
Revision vs By Adv.Sri.Shajin S.Hameed on 18 July, 2018
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 18TH DAY OF JULY 2018 / 27TH ASHADHA, 1940
Crl.Rev.Pet.No. 1366 of 2006
IN CRA 438/2004 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI
IN CC 489/2003 of J.M.F.C.-II,PERINTHALMANNA
REVISION PETITIONER(S)/APPELLANT/ACCUSED
MOHAMMED RAFEEQUE, S/O. ABDURAHIMAN
VALLANCHOLA HOUSE, PERINTHALMANNA,,
P.O.PERINTHALMANNA.
BY ADV.SRI.SHAJIN S.HAMEED
RESPONDENT(S)/STATE/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PROSECUTOR,
HIGH COURT OF KERALA.
BY SR. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-07-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ds
P.UBAID, J.
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Crl.R.P. No. 1366 of 2006
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Dated this the 18th day of July, 2018
ORDER
The revision petitioner herein challenges the conviction and sentence against him in C.C. No. 489 of 2003 of the Judicial First Class Magistrate Court-II, Perambra. He faced prosecution under Section 292(1)(a) of the Indian Penal Code, and also under Section 3(a) of the Young Persons Harmful Publication Act, 1956, and Section 6 of the Indecent Representation of Women (Prohibition) Act, on the allegation that when the Circle Inspector of Police, Perinthalmanna, conducted a search at his shop at Perinthalmanna on 02.05.2001, he was found possessing so many books containing obscene pictures and articles, for sale. The Circle Inspector seized all these publications as per a mahazar, and arrested the accused. After investigation, the police submitted final report in court.
2. The accused appeared before the learned Magistrate, and pleaded not guilty when the substance of Crl.R.P. No. 1366 of 2006 -2- the accusation was read over and explained to him. The prosecution examined five witnesses, including the Circle Inspector who detected the offence, and proved Exts. P1 to P4 documents in the trial court. The MO1 to MO3 books allegedly containing obscene articles and pictures were also identified during trial.
3. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C.. He projected a defence that he has nothing to do with the shop searched by the Circle Inspector, and he has no connection with the obscene materials seized by the Circle Inspector. The accused did not adduce any evidence in defence.
4. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment for six months each, and to pay a fine of Rs.500/- each under Section 292(1)(a) IPC and under Section 6 of the Indecent Representation of Women (Prohibition) Act, and to undergo Crl.R.P. No. 1366 of 2006 -3- another period of simple imprisonment for one month under Section 3(a) of the Young Persons Harmful Publication Act.
5. Aggrieved by the judgment of conviction dated 18.08.2004, the accused approached the Court of Session, Manjeri, with Crl.A. No. 438 of 2004. In appeal, the learned Additional Sessions Judge (Adhoc-III), Kozhikode, found the accused not guilty of the offence under the Indecent Representation of Women (Prohibition) Act, but confirmed the other convictions. However, the sentence imposed by the trial court under Section 292(1)(a) IPC was reduced to simple imprisonment for three months. Now the accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence.
6. On hearing both sides, and on a perusal of the materials, I find that the conviction entered by the courts below against the revision petitioner under Section 292(1)(a) IPC and also under Section 3(a) of the Young Persons Harmful Publication Act is unsustainable.
Crl.R.P. No. 1366 of 2006-4-
7. PW1 is the Circle Inspector of Police, who detected the offence. The MO1 to MO3 publications were seized by him as per a seizure mahazar from a particular shop. The prosecution case is that the said shop belongs to the accused, and the objectionable publications were kept there for sale by the accused. The Circle Inspector examined as PW1 did not state what shop was in fact searched by him. His evidence does not contain the descriptions or the number of the said shop. There is nothing to show that the accused has any sort of connection with the said shop. Even while stating that the objectionable books and articles were seized by him, and that the accused was arrested, he did not state the connection of the accused with the shop. His evidence is that the accused was arrested by him as he was found there. He has no case that the accused was the salesman there, or that the shop belongs to him. When cross examined on the material aspect, PW1 fairly conceded that the objectionable books and articles seized by him were Crl.R.P. No. 1366 of 2006 -5- not in fact kept there for sale.
8. An accused can be found guilty and convicted under Section 292(1)(a) IPC only if there is evidence to show that he had sold, or distributed, or publicly exhibited, or in any manner put in circulation, or has in his possession, any obscene matter. Mere possession of some obscene material without exhibiting it for sale, or circulation, cannot be punished under Section 292(1)(a) IPC. PW1 admitted fairly that the books seized by him were not in fact kept there for sale, or that he had not seen such materials being kept or exhibited there for sale or circulation. If so, there cannot be a conviction under Section 292(1)(a) IPC. Even if it could be assumed that those articles were kept there for sale, or that the shop owner possessed it for sale or circulation, the material question is whether the accused is the shop owner, or whether he has any sort of connection with the said shop as owner or employee or otherwise. The evidence of PW1 does not contain anything on these aspects. His evidence is Crl.R.P. No. 1366 of 2006 -6- that just because the accused was seen there, he arrested the accused. I find that there is no material in this case for a conviction under Section 292(1)(a) IPC.
9. Now the question is whether there is any material for a conviction under Section 3(a) of the Young Persons Harmful Publication Act. What is punishable under Section 3(a) of the Act is the act of selling or distributing or exhibiting or circulating any harmful publication. Harmful publication is defined under Section 2(a) of the Act. To make it harmful, it must be any book or magazine or pamphlet or leaflet, or newspaper or other publication which consist of stories told with the aid of pictures, or without the aid of pictures, or wholly in pictures, portraying wholly or mainly (i) the commission of any offence, or (ii) the act of violence or cruelty, or (iii) incidents of repulsive or horrible nature. Thus, it is quite clear that to make a harmful publication punishable under Section 3 of the Act, the publication must be something containing some stories or pictures which will Crl.R.P. No. 1366 of 2006 -7- tend to corrupt a young person, or will encourage or prompt him to commit any offence, or any act of violence or cruelty. Such publication, to be called harmful, must have something therein to corrupt or prompt young persons to commit offences involving violence or cruelty, and those pictures or stories must be of some repulsive or horrible nature. So I find that the said conviction is also liable to be set aside.
In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offences under Section 292(1)(a) IPC and under Section 3(a) of the Young Persons Harmful Publications Act, 1956, and he is acquitted of those offences in revision. Accordingly, the conviction and sentence against the revision petitioner in C.C. No. 489 of 2003 of the trial court, confirmed in appeal by the Court of Session, Manjeri, in Crl.A.No. 438 of 2004, will stand set aside.
Sd/-
P.UBAID JUDGE ds 19.07.2018