Delhi District Court
State vs . Mahender & Ors. on 26 August, 2013
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 03 (WEST),
TIS HAZARI COURTS, DELHI - 110 054.
FIR No.39/1999
PS - Nangloi
State Vs. Mahender & Ors.
Unique Case ID No.02401R0132651999
JUDGMENT
(a) Sr. No. of the case 1184/1/08
(b) Date of offence 14.01.1999
(c) Complainant SI Raj Kumar, Special Staff, West District,
New Delhi.
(d) Accused person(s) (1) Mahender Kumar Saini S/o Sh. Ratan
Lal R/o 9031, Siddi Pura, Karol Bagh, New
Delhi.
(2) Ramesh Kumar Pandey S/o Sh. Brij
Bhushan R/o Vandana Vihar, New Delhi.
(e) Offence(s) Under Section 292 of The Indian Penal Code,
1860 read with Section 34 of The Indian
Penal Code, 1860.
(f) Plea of accused person(s) Pleaded not guilty
(g) Final Order Convicted
(h) Date of institution 07.10.1999
(i) Date when judgment was Not Reserved
reserved
(j) Date of judgment 26.08.2013
1. Accused persons have been charge sheeted for committing offence punishable under Section 292 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860. The allegations against the accused persons are that on 14.01.1999 at 06:30 pm to 08:30 pm at Lokesh Cinema Hall, Main Rohtak Road, FIR No.39/1999 Page No.1 to 19 Nangloi, New Delhi, accused persons namely Mahender Kumar Saini, Ramesh Kumar Pandey and Ram Baran Thakur (since PO) in furtherance of their common intention were indulged in exhibiting a movie namely "Adamshashtra" interspersed with the nude scenes of a blue film. According to the prosecution, accused persons have committed offence punishable under Section 292 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to the accused persons in compliance of Section 207 of The Code of Criminal Procedure, 1973. During the course of the trial, accused Ram Baran Thakur was declared proclaimed offender vide order dated 22.08.2007. Charge under Section 292 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 was framed against the present accused persons vide order dated 05.10.2007 to which they pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
3. In order to prove its case, prosecution has examined four witnesses. PW1 HC Jagmer has proved and exhibited the formal FIR Ex.PW1/A. PW1 was examined, not cross-examined by the accused persons despite opportunity given and was discharged.
4. PW2 Ct. Devender has deposed that on 14.01.1999, he was posted as Constable at Special Staff, West District. On that day, he was member of raiding party comprising of Inspector Ashok Tyagi, SI Raj Kumar, ASI Charan Singh, ASI Jai Bhagwan, ASI Jai Kishan, HC Ram Kishan, Ct. Devraj, Ct. Sanjay and Ct. Rajaram FIR No.39/1999 Page No.2 to 19 which was formed by Inspector Ashok Tyagi on the information that had been coming to the special staff on telephone from several days that a film namely "Adamshastra" is running at the Lokesh cinema and it is interspersed with the scenes of a "blue film". All the members of raiding party in the government vehicle in plain clothes proceeded to the Lokesh cinema and reached there at around 05:50 pm. Ten tickets of the movie "Adamshashtra" were purchased and they all proceeded into the hall and started watching the movie which began at 06:30 pm. After 20 - 25 minutes of the time of start of the movie, one scene flashed in which a black person was featured touching the private parts of a lady and the lady was sounding noise as if she is highly stimulated by such touching and thereafter before 08 - 10 minutes of the interval another scene came in which lady was featured completely nude on the upper portion of the body and male hand was featured touching the breast of the female. Another obscene scene came 08 - 10 minutes before the final ending of the movie and in that scene also the lady was nude from the upper portion and male person was featured half nude in a compromising position with the lady so featured. Thereafter, when the film ended, all the members of the raiding party proceeded to the project room where they found accused persons namely Mahender Singh Saini, Manager and Ram Baran Thakur, Project Operator and one another person namely Ramesh Pandey sitting. He further deposed that he does not remember the names of the accused persons correctly, but, the present accused persons were there in the project room at that point of time along-with one another person. When the movie was again got rewind after all the public had left, then it was found that three said obscene scenes were inserted into the said movie later on for being FIR No.39/1999 Page No.3 to 19 conjointly run in continuation of the movie as if such scenes were part of the said movie. IO SI Raj Kumar seized all the five rolls of the said movie in which rolls no.02, 03 and 05 contained the obscene scenes. Thereafter, SI Raj Kumar wrote Tehrir and sent him to the PS for the registration of the FIR. After getting the case registered, he came back at the spot with the copy of FIR and original Rukka and handed over the same to the IO. Accused persons namely Mahender Kumar Saini, Ramesh Kumar Pandey and Ram Baran Thakur (since PO) were arrested by the IO vide conviction slip. He identified the accused persons and the case property Ex.P1 to Ex.P5 in the Court. PW2 was examined, cross-examined and discharged.
5. PW3 Raj Kumar has deposed that in the year 1999, he was the distributor of the films and was running firm in the name of Sunny International registered at Motion Picture Association and he was having office at 25, Moti Cinema Compound, Chandni Chowk, Delhi. He had given the film "Adamshashtra" to be run at Lokesh cinema to the manager of that cinema, the full name of the manager, he does not remember, but it was someone Mr. Mishra in the share of 30% of the total earning from the running of the film at Lokesh cinema for a period of 07 days, however, exact dates he does not remember due to lapse of time. The said film was not having any blue scenes and he also handed over the photocopy of Censor Certificate to Mr. Mishra. He produced the photocopy of the same Ex.PW3/A as the original is never given to them by the producer's of the films. He had distributed the said film to other cinema halls also at that point of time and nothing to the effect that there were objectionable obscene scenes in it was received in their office in those days. The police inquired from him FIR No.39/1999 Page No.4 to 19 and he has told the same what he has stated before the Court. The said film was having "A" certificate. PW3 was examined, not cross-examined by the accused persons despite opportunity given and was discharged.
6. PW4 Inspector Raj Kumar has deposed that on 14.01.1999, he was posted as SI in Special Staff at Tagore Garden and on that day at about 05:00 pm, someone informed Inspector Ashok Tyagi that a film in the name of "Aadamshastra" is running in Lokesh cinema at Nangloi. It was also informed that some blue film clips have been added in the said film. After receiving this information, Inspector Ashok Tyagi prepared a raiding party including him, ASI Charan Singh, ASI Jai Bhagwan, ASI Jai Kishan, HC Ram Kishan, Ct. Dev Raj, Ct. Raja Ram and 01 - 02 other persons. Thereafter, they went to Lokesh cinema in a Government Vehicle bearing registration number DL-1V-2809 which was being driven by Ct. Raja Ram and reached Lokesh cinema in civil uniform and purchased 10 tickets for Rs.30/- each. Thereafter, they entered in the cinema hall and the said movie started at about 06:30 pm. After about 20
- 25 minutes, one clip of a blue film was picturised which was of 03 - 04 minutes in which a black person was featured touching the private parts of a lady and the lady was sounding noise as if she is highly stimulated by such touching. Before 08 - 10 minutes of interval, another scene also came in which a lady was completely nude on the upper portion of the body and the male hand was featured touching the breast of female. Another obscene scene came 08 - 10 minutes before the climax and in that scene a lady was also shown nude from the upper portion and a male person was featured half naked in compromising position with lady. After the end of the said film, they went to the FIR No.39/1999 Page No.5 to 19 projector room and met with a manager namely Mahender Singh Saini and two project operator namely Ram Baran Thakur and Ramesh Kumar Pandey. The said film was again got rewind when the hall got empty and it was observed that the above-said obscene scenes were inserted in the said movie. There were five rolls of the above-said movie. The above-said obscene scenes were inserted in roll no.02, 03 and 05. All the five rolls were sealed in pullanda with the seal of 'RKD' and were seized vide seizure memo Ex.PW4/A1. Seal after used was handed over to ASI Charan Singh. Rukka Ex.PW4/A was prepared. Present case FIR was got registered through Ct. Devender. He prepared site plan. Accused Mahender Kumar Saini was interrogated and thereafter, arrested vide arrest memo Ex.PW4/B. Accused Ramesh Kumar Pandey and Ram Baran Thakur were also arrested vide memo Ex.PW4/C and Ex.PW4/D. Disclosure statement of accused Mahender Kumar Saini was recorded as Ex.PW4/E. Accused was released on bail and statements of witnesses were recorded. The case property was deposited in Malkhana. On 18.01.1999, he examined the distributor namely Raj Kumar who told him that the said film namely "Aadamshashtra" was handed over to the manager namely Ram Sanjeevan Mishra and at that time, there was no clip of any blue film in it. Thereafter, on 30.01.1999, Ram Sanjeevan Mishra was also examined who disclosed that he had received the said film after being duly checked by distributor Raj Kumar and thereafter, he handed over the same to the accused Mahender Kumar Saini and at that time, there was no obscene clip in the movie. Sh. Ram Sanjeevan Mishra also produced one photocopy of agreement slip mark 'X1' of Sunny International Movie Pictures distributors dated 06.01.1999 FIR No.39/1999 Page No.6 to 19 (screening date 08.01.1999 to 14.01.1999) with Lokesh cinema. The same was seized vide seizure memo Ex.PW4/F. The above-said 10 tickets are Ex.PX1 (Collectively). Statements of witnesses were recorded under Section 164 of The Code of Criminal Procedure, 1973. After completion of investigation, he filed the charge-sheet in the Court for judicial verdict. He identified the case property as Ex.P1 to Ex.P5 in the Court. He identified accused Mahender Kumar Saini correctly before the Court, however, identified accused Ramesh Kumar Pandey as Ram Baran Thakur in the Court. PW4 was examined, cross-examined and discharged.
7. On 29.05.2013, prosecution evidence was closed by the Court. STATEMENT OF ACCUSED
8. After closure of prosecution evidence, the statements of the present accused persons were recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973. Incriminating evidence was put to them. Accused persons denied all the allegations and stated that they are innocent and have been falsely implicated in this case. Accused persons opted not to lead evidence in their defence.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
9. In this case, the 1st major contention raised by the present accused persons is that no public person was joined in the investigation of the present matter and all the prosecution witnesses are police witnesses, therefore, the prosecution case is not reliable.
FIR No.39/1999 Page No.7 to 19 9.1 In the judgment of "Ajmer Singh Vs. State of Haryana"2010 AIR SCW 1494, Hon'ble Supreme Court of India has held that :-
"We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in all circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated."
In the judgment of "Karamjit Singh Vs. State (Delhi Administration)"
AIR 2003 Supreme Court 1311, Hon'ble Supreme Court of India has held that :-
"The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down."
In the judgment of "State of U.P. Vs. Anil Singh" AIR 1988, Hon'ble Supreme Court of India has held that :-
"In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version."
9.2 In view of these judgments, it is clear that the joining of public witnesses is not indispensable preposition and where public witnesses are not available or ready to join investigation, the prosecution case cannot be thrown away on the mere ground FIR No.39/1999 Page No.8 to 19 that public witnesses were not joined in investigation. The PW4 has deposed in his cross-examination that he asked public persons to join the investigation, but they did not agree for the same. The public in general is reluctant to come forward to depose before the Court and have indifferent attitude in the investigation of crimes. No justifiable reason has been put forward qua false implication. In these circumstances, in the opinion of this Court, there is no reason to disbelieve the evidence of the prosecution witnesses. In view of the same and keeping in mind the law laid down by Hon'ble Supreme Court of India in above-said judgments, the submission of the present accused persons that the evidence of prosecution witnesses is not reliable and is hereby rejected.
10. The another contention raised by the present accused persons is that no documentary proof has been filed on record to prove that the present accused persons were the employees in Lokesh cinema and there is no document on record to establish that accused Mahender Kumar Saini was the manager of the Lokesh cinema. It is further contended that the date of the show is not mentioned on the tickets Ex.PX1 (Collectively) and alleged D.D.No.11 regarding departure of police officials is not on record. It is further contended by the present accused persons that PW4 wrongly identified accused Ramesh Kumar Pandey as Ram Baran Thakur and though PW4 has deposed that he recorded the statement of manager Ram Sanjeevan Mishra, but the same is not on record. The accused persons had contended that therefore, the present case is a case of false implication and the evidence of the prosecution is liable to be rejected.
FIR No.39/1999 Page No.9 to 19 10.1 This Court has considered the contentions raised by the accused person and has perused the examination-in-chief and cross-examination of the witnesses. In the cross-examination of PW4, the accused persons have given suggestion that they were ticket checkers and torch men in cinema hall. In view of the same, it is clear that it is an admitted case that the present accused persons were present in the cinema hall at the date and time alleged. So, the factum that the tickets do not bear the date of show and no D. D. Entry regarding departure is on record is of no help to the accused persons. The PW2 and PW4 have deposed that after the end of the film, they went to projector room where they met accused Mahender Kumar Saini, Ramesh Kumar Pandey and Ram Baran Thakur. In cross-examination, the PW4 deposed that accused Mahender Kumar Saini was also apprehended with other accused person from the projector room. The said evidence of both the witnesses went un-rebutted. So, even if, there is no document on record that the accused Mahender Kumar Saini was manager and accused Ramesh Kumar Pandey was employee, it is of no help to the accused persons when they were found publically exhibiting the film in question. The PW2 correctly identified both the accused persons as being present in the projector room with another person, though, he was not able to identify the present accused persons with their names, so even if the PW4 has wrongly identified accused Ramesh Kumar Pandey as Ram Baran Thakur, it is of no help to the accused persons. Moreover, it is an admitted case that the present accused persons were present in the cinema hall on the date and time alleged as already discussed in this paragraph. In view of the same, there is no force in the above-said contentions of accused persons and therefore, are hereby FIR No.39/1999 Page No.10 to 19 rejected.
11. Another major contention raised by the present accused persons is that the reels were neither got examined from CFSL for addition of reels nor any certificate of any competent authority is on record to prove that the scenes even if added were in fact obscene.
11.1 This Court has considered the contentions raised by the present accused persons. Now, as far as question of examination of reels qua addition of obscene scenes is concerned, in the opinion of this Court, since, the cutting and addition of reels can be seen with naked eyes, therefore, in the opinion of this Court, no useful purpose would have been served by sending the reels for examination by CFSL qua addition. The PW3 has deposed that when he handed over the reels of the film "Adamshashtra" to the manager of the Lokesh cinema, it was not having any blue/obscene scenes and there was censor certificate to that effect Ex.PW3/A. He further deposed that he distributed the said film to other cinema halls also and had not received any complaint to that effect that there were objectionable obscene scenes in it from other cinema halls. The said deposition of PW3 went un-rebuttable. Moreover, perusal of cross-examination of prosecution witnesses reveals that the said defence was not taken by the accused persons in cross-examination and it is only an afterthought and has been taken merely for purpose of taking defence. In view of the same, there is no force in this contention of the accused persons and therefore, is hereby rejected.
11.2 Now, as far as the second contention of the present accused persons is concerned that there is no certificate of competent authority to prove or establish that FIR No.39/1999 Page No.11 to 19 the scenes added were in fact obscene is concerned, the PW2 and PW4 have deposed that after 20 - 25 minutes of the start of film, a blue film of 3 - 4 minutes came in which a black person was touching the private parts of the lady and the lady was sounding noise as is she is highly stimulated by such touching. Before 8 - 10 minutes of interval, another scene came in which lady was featured completely nude on her upper portion of body and male hand was featured touching the breast of the female. Before 8 - 10 minutes of the end of movie, another scene came in which lady was nude from upper portion and male person was featured half nude in a comprising position with the lady so featured. The said deposition of both witnesses went un-rebutted as there is no cross-examination of these witnesses qua this deposition. 11.3 In the judgment of "Ranjit D. Udeshi Vs. The State of Maharasthra"
AIR 1965, Hon'ble Supreme Court of India has held that :-
"Para No.14 - ...................Cockburn C. J. laid down the test of obscenity in these words : "It think the test of obscenity is this whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall................................it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character."
"Para No.15 - This test has been uniformly applied in India."
"Para No.19 - But even if we agree thus far, the question remains still whether the Hicklin test is to be discharged? We do not think that it should be discarded."
In the judgment of "Raj Kapoor Vs. State (Delhi Administration)" AIR 1980 SC 258, Hon'ble Supreme Court of India has held that :-
"No doubt - a certificate by a high powered Board of censors with specialized composition and statutory mandate is not a piece of utter inconsequence. It is relevant material, important in its impact, though not infallible in its verdict........
"The Court is not barred from trying the case because the certificate is not conclusive. I am not persuaded that once a certificate under the Cinematography Act is issued under the Indian Penal Code, pro tanto will hang limp. The Court will examine the FIR No.39/1999 Page No.12 to 19 film and judge whether its public display, in the given time and clime, so breaches public morals or depraves basic decency as to offend the penal provisions."
The above-said law was reiterated by Hon'ble Supreme Court of India in matter of "Ajay Goswami Vs. Union of India" (2007) 1 SCC 143 and discussed various judgments of Hon'ble Supreme Court of India laying down the broad principles to determine/judge obscenity and further held in paragraph number 71 : -
"The test for judging a work should be that of an ordinary man of common sense and prudence and not an "out of the ordinary or hypersensitive man".
In the judgment of "Director General, Directorate General of Doordarshan Vs. Anand Patwardhan" (2006) 8 SCC 433, Hon'ble Supreme Court of India discussed the Hicklin test of obscenity laid down in "R Vs. Hicklin" and observed that : -
"32. (a) whether the 'average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest....... ...;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically, defined by the applicable State law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
11.4 In view of the above-said law, it is clear that the responsibility has been fixed on the Courts to decide whether the material in question is obscene or not. The test applicable as laid down by Hon'ble Supreme Court of India is of an ordinary man of common sense and prudence and not an out of the ordinary or hypersensitive man. The scenes in question as described, in the opinion of this Court from point of view of a man of ordinary prudence are obscene as they are lascivious and are of prurient interest FIR No.39/1999 Page No.13 to 19 and can deprave and corrupt persons who are likely to see and hear it. It is not the case of the accused persons that the scenes in question fall within the exceptions provided in the Section 292 of Indian Penal Code, 1860, moreover, the onus of proving the same would have been on the accused persons. In view of the same, the contention of the accused persons that there is no certification of any competent authority to prove or establish that the scenes added were in fact obscene is without any force and is hereby rejected.
12. In this matter, the PW2 and PW4 have deposed that on 14.01.1999, Inspector Ashok Tyagi prepared a raiding party comprising of PW2, PW4 and other police officials as information had been coming to special staff on telephone from several days that a film namely "Adamshashtra" being run at Lokesh cinema is interspersed with scenes of blue film. All the members of raiding party in plain clothes reached Lokesh cinema at about 05:50 pm in government vehicle. Ten tickets of movie were purchased and they proceeded into the hall. Movie started at 06:30 pm. After 20
- 25 minutes of start of movie, one scene flashed in which black person was featured touching the private parts of the lady and lady was sounding noise as if she is highly stimulated by such touching. Another scene 8 - 10 minutes before interval came in which lady featured completely nude on upper portion and male hand was featured touching the breast of female. Another scene came 8 - 10 minutes before final end and in that scene, lady was nude from upper portion and male person was featured half nude in a compromising position with the lady. After end of the film, all members of raiding party proceeded to the projector room where present accused persons along-with FIR No.39/1999 Page No.14 to 19 another person were present there. Movie was got rewind and it was found that three above-said obscene scenes were inserted into the said movie later on for being co- jointly run in continuation of movie in reel numbers 02, 03 and 05 respectively. PW1 has proved and exhibited FIR Ex.PW1/A. PW2 correctly identified the accused persons as being apprehended from projector room and also exhibited reels Ex.P1 to Ex.P5 in his evidence. PW3 has proved and exhibited censor certificate Ex.PW3/A in his evidence. PW4 has proved and exhibited documents Ex.PW4/A1, Ex.PW4/A to Ex.PW4/F in his evidence. He also exhibited the tickets as Ex.X1 and also marked agreement mark 'X1' in his evidence. The above-said evidence of the prosecution witnesses passed the test of skillful and lengthy cross-examination done by Ld. Counsel for the accused persons. In view of the same, it has been proved on record that the present accused persons along-with co-accused Ram Baran Thakur (Since PO) in furtherance of their common intention were found publically exhibiting obscene scenes in the Lokesh cinema on 14.01.1999 from 06:30 pm to around 08:30 pm interspersed in movie "Adamshashtra". So, both the accused persons are liable to be convicted for offence punishable 292 (2) (a) of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
13. Before passing the final order, it is pertinent to mention here that the present case is a case where the main culprits have been left by the investigating agency and the minor employees who were present in the cinema hall were made accused in this case. It has come on record in the evidence of PW3 and PW4 that Ram Sanjeevan Mishra was the manager of the cinema hall. It is quite strange that IO exonerated him FIR No.39/1999 Page No.15 to 19 by writing his statement that the accused Mahender Kumar Saini was manager for the night timings, when it is the case of the investigating agency and the prosecution that repeated complaints were coming for several days that the film "Adamshashtra" interspersed with the scenes of blue film clips is running in Lokesh cinema. The IO exonerated the perpetrator of crime by writing his statement. The manager was liable to be prosecuted for offences under Section 292 (2) (a) of The Indian Penal Code, 1860 and Section 7 (1) (b) of The Cinematograph Act, 1952. The challan of the police is also silent about the owner of the Lokesh cinema who was liable to be prosecuted for offences under Section 292 (2) (c) of The Indian Penal Code, 1860 and Section 7 (1) (b) of The Cinematograph Act, 1952. The investigating agency has not challaned both above for the reasons best known to it.
13.1 In matter of "Dayal Singh Vs. State of Uttaranchal" (2012) 8 SCC 263, the Hon'ble Supreme Court of India has directed Courts to recommend departmental disciplinary action against the erring officials when there is deliberate dereliction of duty, intentional acts of omission and breach of professional standards and held in paragraph number 47.5 that : -
"We hold, declare and direct that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that Courts return a specific findings in such cases, upon recording of reasons as to deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution, in breach of professional standards and investigate requirements of law, during the course of the investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution. Further, the Courts would be fully justified in directing the disciplinary authorities to take appropriate disciplinary or other action in accordance with law, whether such officer, expert or employee witness, is in service or has since retired."
In the present matter, the investigating agency has deliberately left the FIR No.39/1999 Page No.16 to 19 main culprits for the reasons best known to it. The copy of this judgment be sent to DCPs concerned to take appropriate action at their end against the IO and the forwarding authorities.
13.2 Now, having done above, in the opinion of this Court, it will be mockery of justice, if the above-said manager and the owner are not prosecuted for the crime committed by them. In the judgment of "Dayal Singh Vs. State of Uttaranchal" (2012) 8 SCC 263, the Hon'ble Supreme Court of India has further held that :-
"30. With the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general."
"31............the concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'."
"32.............Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true the Court is free to act on it albeit the investigating officer's suspicious role in the case."
"34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a "fair trial", the Court should leave no stone unturned to do justice and protect the interest of the society as well."
13.3 In the present matter, there is sufficient evidence on record that Ram FIR No.39/1999 Page No.17 to 19 Sanjeevan Mishra was the manager of the Lokesh cinema at the relevant point of time. The evidence on record is such that the manager Ram Sanjeevan Mishra and owner of Lokesh cinema can be convicted for offences under Section 292 (2) (a) of The Indian Penal Code, 1860 and Section 7 (1) (b) of The Cinematograph Act, 1952 and under Section 292 (2) (c) of The Indian Penal Code, 1860 and Section 7 (1) (b) of The Cinematograph Act, 1952 respectively. The Court should have summoned these two persons earlier at the time of recording of evidence. Procedure is handmaid of justice and not its master. The object of The Code of Criminal Procedure, 1973 is to effectively execute the administration of criminal justice system. In view of above judgment of Hon'ble Supreme Court of India and in the interest of administration of criminal justice system, this Court hereby summon the manager Ram Sanjeevan Mishra for offences under Section 292 (2) (a) of The Indian Penal Code, 1860 and Section 7 (1)
(b) of The Cinematograph Act, 1952 and the owner of the Lokesh Cinema for offences under Section 292 (2) (c) of The Indian Penal Code, 1860 and Section 7 (1) (b) of The Cinematograph Act, 1952 respectively under Section 319 of The Code of Criminal Procedure, 1973 to stand trial. The summons shall be ordered to be issued at the time of hearing on point of sentence qua present accused persons.
14. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has duly proved its case against the present accused persons for offence punishable under Section 292 (2) (a) of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 beyond shadow of reasonable doubt. Accordingly, the accused persons namely Mahender Kumar Saini FIR No.39/1999 Page No.18 to 19 and Ramesh Kumar Pandey are hereby convicted for offence punishable under Section 292 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
15. Copy of judgment be supplied to the convicts free of cost.
Announced in the open Court on August 26, 2013.
(HARVINDER SINGH) MM-03/THC (West), Delhi/26.08.2013 FIR No.39/1999 Page No.19 to 19