Delhi District Court
State vs . Ajay Sood on 31 March, 2011
State vs. Ajay Sood
IN THE COURT OF SH DHARMENDER RANA
Metropolitan Magistrate, West, Delhi
State Vs. Ajay Sood
FIR N0. : 131/1988
U/S : 292 IPC and Section 3 of Indecent Representation of
Women (Prohibition) Act, 1986
PS : Rajouri Garden
J U D G M E N T ;
a) Sl. No. of the case : 1839/2
b) Date of commission of offence: 10.03.1988
c) Date of institution of the case : 29.07.1988
d) Name of the complainant : Sh. Ravi Shankar
e) Name & address of the : Ajay Kumar Sood
accused s/o Sh. Jagdish Rai Sood
R/o 19, Golf Links,
New Delhi 3
f) Offence complained off : 292 IPC & Section 3
Indecent Representation of
Women (Prohibition) Act, 1986
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 29.03.2011
i) Final order : Acquitted
j) Date of Judgment : 31.03.2011
FIR No.131/1988 1
State vs. Ajay Sood
BRIEF STATEMENT OF REASONS FOR DECISION:
1.Briefly stated, the case of the prosecution is that on 10.03.1988 at Vishal Cinema an objectionable and obscene poster/ hoarding of a film "Nashili Jawani" was found displayed. Accused Sharan Dass, Manager of Vishal Cinema, accused Ajay Kumar Sood, Managing director of Vishal Cinema and accused Ravi Raj Gupta, distributor of movie "Nashili Jawani" were booked for the offence U/s 292 of Indian Penal Code (hereinafter referred as IPC) and Section 3 of Indecent Representation of Women (Prohibition) Act, 1986 (hereinafter referred as IRW).
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused persons were consequently summoned. A formal charge for the offence U/s 292 IPC and Section 3 of Indecent Representation of Women (Prohibition) Act, 1986 was framed against the accusedSharan Das, Ravi Raj Gupta and Ajay Kumar Sood on 26.07.1989 to which they pleaded not guilty and claimed trial. However, during the course of trial accused Ravi Raj Gupta and Sharan Dass absconded and they were declared Proclaimed Offenders by the order of the Court dated 19.07.1996 and 17.11.2000 respectively. Subsequently the trial continued only against accused Ajay Kumar FIR No.131/1988 2 State vs. Ajay Sood Sood and the instant judgment is qua accused Ajay Kumar Sood only.
3. In order to substantiate the allegations, four witnesses have been examined on behalf of the prosecution.
4. PW1; Sh. Balwant Rai has appeared on behalf of Motion Pictures Association and has proved Membership / Enrollment no. 975/1769 dated 29.03.88 vide Ex. PW1/A and Circular no. MPA129/87 (Acq70) dated 27.02.87 vide Ex. PW1/B.
5. PW2; ASI Balwan Singh is the Duty officer who has registered FIR Ex. PW2/A in the matter on the basis of rukka sent by DCP Smt. Vimla Mehra.
6. PW3; Sh. Kamal Kishan Kapoor was Proprietor of Paramount Pictures who entered into a contract with accused Ravi Gupta (PO), owner of Ravi Pictures, and booked the movie Nashili Jawani for Vishal Cinema. He has proved certificate Ex. PW3/1, issued to Ravi Pictures by Motion Pictures Association for owning of said movie.
FIR No.131/1988 3
7. PW4; HC Ram Niwas is a police official who accompanied IO SI Ravi Shankar to the spot. He has deposed that one poster of alleged movie was pasted at the notice board of Vishal Cinema. He has proved Seizure memo of poster Ex. PW4/A, Site plan Ex. PW4/B. He has deposed that accused Sharan Dass, Manager of Vishal cinema, was arrested and has proved his disclosure statement Ex. PW4/C and has duly identified the poster Ex. P1.
8. P.E. was closed by the order of Court dated 23.11.2010 and statement of accused Ajay Kumar Sood U/s 313 Cr.P.C was recorded on 02.12.2010 wherein accused has refuted the allegation levelled against him in toto.
9. DW1; Sh. K. Krishna Murti is an Editor in Regional Office, Central Board of Film Certification, Chennai who has deposed that Tamil film Pakalil Oru Iravu was sanctioned censor certificate by the Central board of Film Certification. He has proved a copy of the same vide Ex. DW1/1. He has deposed that the dubbed Hindi version of the said film was released under the name of Nashili Jawani and was also duly sanctioned a censor certificate by the Central Board of Film Certification vide Ex. DW1/2. FIR No.131/1988 4
10. I have heard the rival submissions and carefully perused the record.
11. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
12. The Ld. Defence counsel has vehemently argued that as per the Section 5 of Indecent Representation of Women(Prohibition) Act, 1986 it is only a gazetted officer who is duly authorized by the State Government who can search and make seizures. It is vehemently argued that since the I.O in the instant cae has made all the seizures, who was not competent and authorized u/s.5 of Indecent Representation of Women(Prohibition) Act, 1986 therefore, the entire seizure of the case property in the instant matter is questionable and cannot be considered against the accused persons. In light of the same, it is argued that for the aforesaid lapses and folly, the entire proceedings stand vitiated. It FIR No.131/1988 5 State vs. Ajay Sood is further argued that Section 5 of Indecent Representation of Women(Prohibition) Act, 1986 read with the rules framed thereunder lays down the entire procedure for search and seizure of the articles. It is further argued that the general provisions of the Cr.PC cannot over ride the special provisions of the Act as laid down in Section 5 of Indecent Representation of Women (Prohibition) Act, 1986.
13. I have carefully analysed the plea of the ld defence counsel regarding the wrongful seizure in violation of Section 5 of Indecent Representation of Women(Prohibition) Act, 1986. The said contention of the ld defence counsel seems to carry some weight. The Ld Defence counsel has placed reliance upon Raj Kumar Gupta vs. State 1994 JCC 466.
14. There cannot be any disagreement with the proposition that when law requires a particular thing to be done in a particular manner it ought to be done in that manner only. However, I cannot travel any further with the Ld defence counsel. I agree with the submission of the Ld. APP that Section 5 of Indecent Representation of Women Act, 1986 does not carve out any exception to the general provisions of the Cr.PC. Section 5 of FIR No.131/1988 6 State vs. Ajay Sood Indecent Representation of Women Act, 1986 which is reproduced herein merely vests concurrent power within a gazetted officer to search and seize the objectionable articles which otherwise he would not have been able to do.
"Powers to enter and search(1) Subject to such rules as may be prescribed, any Gazetted Officer authorised by the State Government may, within the local limits of the area for which he is so authorised
(a) enter and search at all reasonable times, with such assistance, if any, as he considers necessary, any place in which he has reason to believe that an offence under this Act has been or is being committed;
(b)seize any advertisement or any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which he has reason to believe contravenes any of the provisions of this Act;
(c) examine an record, register, document or any other material object found in any place mentioned in clause (a) and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act:
Provided that no entry under this subsection shall be FIR No.131/1988 7 State vs. Ajay Sood made into a private dwelling house without a warrant:
Provided further that the power of seizure under this subsection may be exercised in respect of any document, article or thing which contains any such advertisement, including the contents, if any, of such document, article or thing if the advertisement cannot be separated by reason of its being embossed or otherwise from such document, article or thing without affecting the integrity, utility or saleable value thereof. (2)The provisions of the Code of Criminal Procedure,1973(2 of 1974), shall, so far as may be, apply to any search or seizure under this Act as they apply to any search or seizure made under the authority of a warrant issued under section 94 of the said Code.
(3)Where any person seizes anything under clause (b) or clause
(c) of SubSection (1), he shall, as soon as may be, inform the nearest Magistrate and take his orders as to the custody thereof".
15. The SubClause 2 of the said section itself lays down that the provisions of Cr.PC shall apply to any search and seizure under the Indecent Representation of Women Act, 1986. FIR No.131/1988 8
16. Further, for the sake of arguments if the contention of the Ld Defence counsel is presumed to be correct even then one has to necessarily fall back upon the general provisions of Cr.P.C, for analysing the effect of noncompliance of Section 5 of Indecent Representation of Women Act, 1986.
17. As per Section 460 Cr.PC irregularities in a search warrant shall not vitiate any proceedings. Reliance is placed upon Sunder Singh vs. State of U.P AIR 1956 SC wherein it has been observed by the Hon'ble Apex Court that irregularities of search is no bar for conviction after all evidence found in illegal search is not inadmissible in evidence.
18. However, I do not have any hesitation in holding it at the very outset that there is not even an iota of evidence against accused Ajay Kumar Sood. Ld. Defence counsel has rightly pointed out that none of the prosecution witnesses have testified the factum of any connection between the alleged obscene poster and accused Ajay Sood. It is a settled proposition of law that the guilt of the accused is to be conclusively proved on record by the prosecution and the same cannot be presumed by resorting to conjunctures and surmises.
FIR No.131/1988 9
19. Further, admittedly film Nashili Jawani was duly certified for public display by the Central Board of Film Certification. It has been observed by the Hon'ble Delhi High Court in the matter of R. Basu vs. NCT of Delhi & Anr.
" No doubt, once the film is certified for public exhibition either for unrestricted public exhibition or public exhibition restricted to adults, the said film is shown to the particular category, the producer or any other person cannot be charged for offence under the Indecent Representation of Women (Prohibition) Act, 1986. Once the film is given a particular certification, no doubt the case of obscenity under Section 292 of the IPC cannot be made out when the said film is shown to the particular category for which the certificate is granted. Again the pre condition is that there has to be a certification by the Board of Film Censors. In the absence of any such certificate the petitioners cannot claim immunity from prosecution under Section 292 of IPC."
20. In light of the aforesaid legal principle as enunciated by the Hon'ble Delhi High Court in the matter of R. Basu vs. State of NCT of Delhi (Supra), I concur with the Ld. Defence counsel that accused Ajay Kumar Sood cannot be held guilty for the offence U/s 292 IPC and Section 3 of IRW as the movie Nashili Jawani has FIR No.131/1988 10 State vs. Ajay Sood been duly certified by the Central Board of Film Certification.
21. As a cumulative effect of the aforesaid discussion, I am of the opinion that the prosecution has miserably failed to prove the indictment against accused Ajay Kumar Sood and accused deserves to be acquitted for the charges levelled against him.
Announced in the open court
on 31.03.2011 (Dharmender Rana)
MM/Delhi /31.03.2011
FIR No.131/1988 11