Madras High Court
Rajendran vs State By Sub Inspector Of Police on 20 April, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 20.04.2012 Coram THE HON'BLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.1587 of 2005 1.Rajendran 2.Natesan .. Petitioners Vs. State by Sub Inspector of Police, Rasipuram Police Station, Crime No.597 of 2000. Namakkal District. .. Respondent Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to call for the records relating to the conviction imposed in the judgment dated 25.11.2005 made in C.A.No.68 of 2004, on the file of the Additional District Sessions Court / Fast Track Court, Namakkal, confirming the conviction imposed in the judgment dated 27.08.2004 made in C.C.No.63 of 2001, on the file of Judicial Magistrate, Rasipuram and set-aside the same. For Petitioners : Mr.N.Manokaran For Respondent : Mr.C.Balasubramaniam Additional Public Prosecutor - - - ORDER
The petitioners / appellants / accused 1 and 2 have preferred the present revision against the order passed in C.A.No.68 of 2004, on the file of the Additional District Sessions Court / Fast Track Court, Namakkal, dated 25.11.2005, confirming the conviction and sentence imposed in the judgment made in C.C.No.63 of 2001, on the file of Judicial Magistrate, Rasipuram.
2. The short facts of the case are as follows:-
The complainant / Sub Inspector of Police, Rasipuram had filed a charge sheet against the accused and stating that the first accused was working as an Operator at Balasubramania Theatre near bus stand, Rasipuram and that the second accused was working as Manager of the said Theatre and that on 01.11.2000 at about 00.30 hours, the first accused was operating a Tamil film named as "Devadasi', which is a blue film. This film was shown in the middle of the main film to the public, who were watching the film, without Tamil Nadu Government Certificate, on the instruction of the second accused. Hence, the case was filed against the accused for an offence under Section 3(1) r/w 7(1)(A)(1) and Section 292(A) r/w Section 34 of IPC for an offence under Cinema Autograph Act, 1952, as Crime No.597 of 2000. Subsequently, the case was taken on the file of Judicial Magistrate, Rasipuram as C.C.No.63 of 2001.
3. On being questioned, the accused had pleaded not guilty and hence, the trial was conducted. On the side of the prosecution, four witnesses were examined and six documents were marked as Exs.P1 to P6, viz., Ex.P1-Mahazar dated 02.11.2000, Ex.P2-mahazar dated 02.11.2000 showing seizure of Memley correction register, Ex.P3-mahazar showing seizure of Rs.4.50 ticket bearing No.02153, Ex.P4-F.I.R., Ex.P5-connection receipt and Ex.P6-counter foil of seized ticket. One material object viz., the film reel of film " Devadasi" was marked as M.O.1. On the side of the accused, one Thangavel was examined as R.W.1 and no document was marked.
4. P.W.1, K.Kannan, presently working as Constable of Rasipuram Police Station adduced evidence that on 01.11.2000, at about 12.15 pm., on the instructions of the Inspector of Police Station, he, along with Sub-Inspector Senthilkumar, based on the information received by them that a blue film was being exhibited at Balasubramania Theatre, near Rasipuram bus stand, had gone to the theatre and observed that a blue film titled "Devadasi" was being displayed at the theatre. He deposed that subsequently, they along with Inspector Gopalakrishnan, had entered the cabinet room in the theatre and asked the operator Rajendiran to stop displaying the film. He deposed that on seeing them, the persons who were watching the film ran out of the theatre and based on the instructions of the Inspector, who had wanted to have a witness, he had gone and brought one Asan, who was watching the film to be a witness. He deposed that subsequently, the Operator was told to run the film in the projector and it was seen that a blue film of duration 15 minutes was run in the reel. He deposed that they had arrested the accused 1 and got his confessional statement and seized the film reel through mahazar at 01.15 a.m. He deposed that when the accused Rajendran was enquired, he had stated that he had run the film based on the instruction given by his Manager viz., Natesan. He deposed that at 01.45 a.m., the accused 2 was arrested by the Inspector at the theatre office and the Inspector seized the counter foil of tickets issued on that day through mahazar and that he and the Sub-Inspector had signed in the said mahazar as witnesses. He deposed that at 03.15 a.m, he had seized the ticket from the witness Asan, who was viewing the film through mahazar and that he and the Sub Inspector had signed as witnesses in the said mahazar. He deposed that subsequently the accused were brought to the Police Station and the Inspector registered the F.I.R. against them and the accused were sent into judicial custody.
5. P.W.2, Gopalakrishnan had adduced evidence that he is working as Inspector at Vellore District Railway Police Station. He deposed that on 01.11.2000, when he was working as Inspector at Rasipuram Police Station, he had gone to the theatre based on the information received from the Police Officers at Balasubramania Theatre at 12.45 a.m, and observed that a blue film was being shown at the theatre. He deposed that he along with the Police party had gone to the cabinet room and arrested operator Rajendran at 12.30 a.m. and obtained his confessional statement in the presence of the Sub Inspector and Constable Kamaraj. He deposed that in the confessional statement of Rajendran, he had stated that the blue film was run in order to earn more income. He deposed that he had subsequently asked the Operator to run the film reel and confirmed that the film was a blue film and seized the film reel at 01.15 a.m., in the presence of Sub Inspector and Constable through mahazar marked Ex.P1. He deposed that at 01.45 a.m., he had arrested the accused Natesan and obtained his confessional statement in front of witnesses and also seized the daily collection book pertaining to running of the film "Devadasi" through mahazar marked as Ex.P2. He deposed that he had subsequently enquired one Asan, who had witnessed the film and obtained his statement and also seized the Rs.1.50 ticket (ticket No.02153) in front of witnesses, at 03.15 a.m., through mahazar marked as Ex.P3. He deposed that he along with police party and accused and gone to the Police Station at 4.00 a.m,. and a case was registered against the accused in Crime No.597 of 2000 under Section 292(2)(A) of IPC r/w Section 7(1)(A)(1) of Cinema Autograph Act and registered the F.I.R. as Ex.P4. He deposed that on the same day, the accused as well as the seized materials were produced before the Court. He deposed that after enquiry, he had filed the charge sheet against the accused on 16.11.2000 for an offence under Section 292(2) (A) and under Section 3(1) r/w 7(1)(A)(1) of Cinema Autograph Act and that the seized film reel was marked as Ex.M.O.1.
6. P.W.3, Asan had adduced evidence that he is a resident of Rasipuram and residing at Sivankoil Street. He deposed that he is running a shop for setting right puncture of tyres opposite of police station and that he is not acquainted with the accused. He deposed that on 01.11.2000, when he was watching the film displayed at Balasubramania theatre, a blue film was displayed in the night and that when the Police seized his theatre ticket, he had signed as witness in the seizure mazar marked as Ex.P7. He deposed that he was not aware of why he was asked to affix his signature and that he had signed in the white paper on being instructed to do so.
7. P.W.4, Sivasenthil Kumar had adduced evidence that on 02.11.2000, while he was working as Sub Inspector of Rasipuram Police Station, and doing his rounds, he had received information at 02.30 a.m., that a blue film was being displayed at the Balasubramaniam theatre and that when he went there, he had seen that a Tamil film named as "Devadasi" was being displayed. He deposed that a portion of the film was a blue film addition. He deposed that he had subsequently gone to the cabinet room and told Varadan, who is the son of Nagendran to stop the screening of the film and also told the assembled audience to go out of the theatre. He deposed that he had enquired with one Asan, who was also watching the film and subsequently arrested the Operator Rajendran at 12.30 a.m., and Manager Natesan at 01.45 a.m. He deposed that subsequently the confessional statements given by the two accused persons were recorded by the Inspector in his presence and one Kumaran. He deposed that he had seized the theatre ticket from Asan (Ticket No.021511) through mahazar (Ex.P3). He deposed that subsequently he had seized the blue film kept in a tin box (MO1) in front of witnesses Kamaraj and himself through mahazar and that they had both signed in the mahazar. He deposed that the accused Rajendran and Natesan had given separate confessional statements. He deposed that the blue film was exhibited in the course of the main tamil film " Devadasi" and that the film was not certified for display by the censor board. He deposed that the Inspector had subsequently filed the charge sheet against the accused.
8. R.W.1., Thangavel had adduced evidence that he is a resident of Rasipuram and that he is running a canteen at Balasubramania Theatre, on rent basis. He deposed that the canteen was run during the screening of movies and that he used to sleep in the canteen after the night show was over. He deposed that he is acquainted with the accused and that they used to come to the theatre occasionally as they are the friends of the Manager. He deposed that occasionally they used to stay in the theatre. He deposed that three years ago, on a particular day, he had seen 2 police constables coming into the theatre at 5 pm and he had seen them conduct an enquiry with the Manager Subbu, asking him to give the key. He deposed that subsequently, the accused had come to the theatre and had slept in the manager's room. He deposed that constables had taken the film box kept in the manager's room and also taken the accused along with them and that he had subsequently informed his employer. He deposed that the accused were not involved in the theatre operations.
9. The learned Judicial Magistrate, observed that though the accused had filed a petition to screen the seized film reel at the Court and though permission was granted to them on 11.11.2003 to see the film, the accused had not taken any steps to screen the said film reel of "Devadasi". The learned Magistrate, on observing that P.W.1, P.W.2, and P.W.4 had adduced evidence which are cohesive and in synchronization with each others evidence and on scrutiny of Exs.P1 to P6 and Ex.M.O.1 and on considering that P.W.2, Inspector, who had registered the F.I.R. and investigated the case had also filed the charge sheet against the accused, held the accused guilty of offence under Section 292(2)(A) of IPC and under Section 3(1) r/w 7(1)(A)(1) of Cinema Autograph Act, 1952 and sentenced each of the accused to undergo simple imprisonment for six months for the offence under Section 292(2)(A) of IPC and imposed a fine of Rs.1,000/- on each of them and in default to undergo further simple imprisonment for two months. The learned Magistrate further sentenced each of the accused to undergo simple imprisonment for three months for the offence under Section 3(1) r/w 7(1)(A)(1) of Cinema Autograph Act, 1952 and imposed a fine of Rs.1,000/- on each of them and in default to undergo further period of simple imprisonment for two months. It was further ordered that the sentence of imprisonment already undergone by the accused was to be set off from the imprisonment period imposed and it was ordered that the sentence of imprisonment imposed on each of the counts would run concurrently.
10. Aggrieved by the conviction and sentence imposed by the trial Court, the accused 1 and 2 had filed an appeal in C.A.No.68 of 2004, before the Additional District Sessions Court / Fast Track Court, Namakkal.
11. The learned appellate Judge after scrutiny of trial Court's judgment and on scrutiny of oral and documentary evidence, dismissed the appeal and confirmed the conviction and sentence imposed by the trial Court. Aggrieved by the dismissal of their appeal, the accused have preferred the present revision.
12. The learned counsel for the revision petitioners has contended in his revision that the Courts below failed to note that on the absence of any material to show that the conduct on the part of the accused was with the tendency of corrupting the morals of the viewers, the prosecution case is not sustainable as mere treating of the case as sex and nudity is not sufficient to prove the test of obscenity as held in judgment made in 1970 MLJ (Crl) 515 SC. It was contended that the Courts below failed to note that no independent witnesses are available on record to substantiate the prosecution version though several persons have been alleged to have seen the film. It was contended that the Courts below failed to note that the complainant cannot be an Investigation Officer, because in such cases, the complainant will be very keen in getting conviction by falsifying the records. It was contended that the Courts below have failed to note that there is no material on record to show as to how the police came to know about the alleged violation and the person, who reported the matter to the police had not been examined as a witness. It was also contended that the Courts below failed to give any credence to the evidence of R.W.1, which would falsify the case of the prosecution. It was contended that the Courts below failed to note that if the alleged violation is true, there is no impediment on the part of the prosecution to array the licensee as accused in the crime and as such, the petitioners herein, who are only employees of the licensee cannot be mulcted with any criminal liability. It was also contended that the Court below ought not to have placed reliance on evidence of P.W.3 as he was initially considered a hostile witness. Hence, it was prayed to set-aside the order of the Courts below.
13. The highly competent Additional Public Prosecutor submits that the respondent-police had registered a criminal case in Crime No.597 of 2000 for the alleged offence under Section 292(2)(A) IPC and under Section 3(1) r/w Section 7(1)(A)(1) of the Cinema Autograph Act, 1952. Thereafter, a comprehensive enquiry had been conducted and charge sheet was filed before the trial Court. On the side of the prosecution, four witnesses were listed and six documents were marked. As such, the prosecution case had been proved beyond doubt. Hence, the learned Magistrate had imposed an adequate punishment on the accused. Aggrieved by the conviction and sentence, the accused had filed a n appeal before the Additional Sessions Judge, Namakkal, in C.A.No.68 of 2004. The learned Judge, after scrutinizing the entire back records and after carefully scrutinizing the judgment of the trial Court had dismissed the appeal. Against the concurrent findings of the Courts below, the revision has been filed and as such, there is no lacuna in the conviction and sentence imposed by both the Courts.
14. Per contra, the highly competent counsel Mr.N.Manokaran submits that both the accused are also involved in the agricultural operations as coolies. He further stated that they have not committed any such offence and that they had telecast the said film as per the direction of the Proprietor of the theatre. Further, the prosecution had threatened the witnesses to give false evidence against the accused. Both the accused had been incarcerated for the period of 27 days. Besides this, each of them had paid a sum of Rs.2,000/- as penalty. Further, both the accused are breadwinners for their respective family and they have not been involved in any earlier offence. Both are law-abiding persons and hail from cultured families. Hence, the learned counsel entreats the Court to grant pardon to the accused and set them free.
15. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the conviction and sentence passed by the Courts below, this Court does not find any lacuna in the judgments passed by the Courts below in convicting the accused. However, considering the family position of the accused and considering that the accused are involved in agricultural operations as coolies and breadwinner of their respective families and that they hail from respected families, as per the submissions made by the learned counsel for the petitioners, this Court is inclined to waive the rest of the sentence imposed on the accused. Further, this Court opines that the fine amount paid by them and the period of incarceration undergone by the accused could be treated as adequate punishment in the instant case. As such, this Court sets both the accused at liberty.
16. In the result, the above revision is partly allowed. Consequently, the order passed in C.A.No.68 of 2004, on the file of the Additional District Sessions Court / Fast Track Court, Namakkal, dated 25.11.2005, confirming the conviction and sentence imposed in the judgment made in C.C.No.63 of 2001, on the file of Judicial Magistrate, Rasipuram, dated 27.08.2004 is modified.
20.04.2012
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Index : Yes / No.
Internet : Yes / No.
To
1. The Sub Inspector of Police,
Rasipuram Police Station,
Crime No.597 of 2000.
Namakkal District.
2. The Additional District Sessions Court,
Fast Track Court, Namakkal.
3. The Judicial Magistrate,
Rasipuram.
C.S.KARNAN, J
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Crl.R.C.No.1587 of 2005
20.04.2012