Chattisgarh High Court
Jameel Ahmed vs State Of Chhattisgarh on 12 August, 2022
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1165 of 2002
Judgment Reserved On : 04/08/2022
Judgment Delivered On : 12/08/2022
• Jameel Ahmd. Son of Shri Mustak Ahmd., aged about 36 years,
Suspended Acting Principle Government Middle School, Makdi, Police
Station Kondagaon, Saroj Nagar, Bhind, District Bhind (MP), Present
Address R.S.E. Colony, Makdi, PS Kondgaon, District Bastar, (CG)
---- Appellant
Versus
• State Of Chhattisgarh, through P.S. Kondagaon, Chhattisgarh
---- Respondent
For Appellant : Shri Prateek Sharma, Advocate. For Respondent : Shri Himanshu Sharma, Panel Lawyer.
Hon'ble Shri Deepak Kumar Tiwari, J C A V JUDGMENT
1. The instant Appeal is directed against the judgment of conviction and order of sentence dated 7.11.2002 passed by the learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act') in ST No.371/2002 whereby the learned Special Judge has convicted the appellant for commission of offence under Sections 292 and 293 of the IPC and sentenced him to undergo RI for 1 year and 6 months & to pay a 2 fine of Rs.2500/- and to undergo RI for 1 year 6 months & to pay a fine of Rs.2500/-, respectively along with usual default stipulations.
2. Prosecution case, in brief, is that the complainant/prosecutrix (PW-
1) has lodged a complaint at Police Station Kondagaon, therefore, offence under Section 376 of the IPC was registered on 31.5.2002, vide FIR No.184/2002 (Ex.-P/3). The said FIR was lodged on the written complaint (Ex.-P/1) made by the prosecutrix. During investigation, one secret information was received that the appellant is indulged in the activity of taking objectionable photographs of local women/girls. As the appellant was absconding after registration of the FIR (Ex.-P/3), the Police has obtained search warrant for searching the house of the appellant (Ex.-P/13). During search, video camera, VCD, video cassettes were recovered vide Ex.-P/15. It was also found that the appellant was having a shop which was run by one Beer Singh and from the said shop 99 cassettes were recovered. Seizure memo (Ex.-P/9) was prepared. Having found that the seized cassettes contained obscene blue films, offence under Sections 292 and 293 of the IPC was added.
3. After completing the investigation, charge sheet was filed. The appellant has abjured his guilt. In order to prove the charge against 3 the appellant, the prosecution has examined as many as 13 witnesses. The statement of the appellant was recorded under Section 313 of the CrPC wherein he has stated that he has been implicated due to political animosity and from his Government Quarter, no obscene cassette was seized. He did not keep such cassettes. Therefore, the prosecution case that in his absence such cassettes were recovered is totally false. In his defence, he has examined 4 witnesses and also examined himself under Section 315 of the CrPC as DW-2.
4. After hearing learned counsel for the parties and on the basis of material available on record, the learned trial Court by the impugned judgment has convicted and sentenced the appellant as mentioned in paragraph-1 of this judgment. However, as prosecutrix (PW-1), her father Sevlaram Rathore (PW-2) and mother Deepavati Rathore (PW-3) have turned hostile, so the appellant was acquitted of the charge under Section 376 of the IPC.
5. Learned counsel for the appellant would submit that as seizure memo (Ex.-P/9) was prepared in the year 2002 and the Information Technology Act, which is a special legislation, came into force on 7th October, 2000, and the punishment for publishing or transmitting obscene material in electronic form has been provided under Section 67 and 67-A of the Information Technology Act, 4 2000, therefore, conviction could be imposed under Sections 67 & 67-A of the said Act and not under Sections 292 and 293 of the IPC. He would place reliance on the judgment in the matter of Sharat Babu Digumarti Vs. Government (NCT of Delhi) {(2017) 2 SCC 18} wherein the Hon'ble Supreme Court has considered the overriding effect of the Information Technology Act, 2000 as mentioned in Section 81 of the said Act. He would further submit that the materials which were seized vide Ex.-P/9 were not seized on the spot by the police and, therefore, the possibility of mixing/adding the seized articles cannot be ruled out. He would further submit that there is no sufficient material to demonstrate that the contents were obscene in nature. It was also submitted that mere possession of obscene cassettes cannot by itself attract the offence punishable under Section 292 of the IPC, unless the possession was not found for the purpose enumerated under sub-section (2) of Section 292 of the IPC i.e. for sell, lets to hire, distributes or publicly exhibits or in any manner puts into circulation. So the purpose of lending out has not been proved. He would further submit that only Ram Kumar Kashyap (PW-5) and Basant Lal Poyam (PW-6) have been examined by the prosecution and other independent witnesses namely, RM Sahu, MR Nag and KK Kuldeep were not examined, and the witnesses, who have been 5 examined, were having adverse interest against the appellant. So, the prosecution has not proved its case, therefore, learned counsel prays to allow the Appeal and acquit the appellant of the aforesaid charges.
6. Per contra, learned State Counsel would support the impugned judgment of the trial Court on submission that the trial Court has properly appreciated the evidence and has rightly held guilty under Sections 292 and 293 of the IPC. The impugned judgment is well merited and does not call for any interference.
7. I have heard learned counsel for the parties at length and perused the record with utmost circumspection.
8. To prove the offence under Section 292 of the IPC, the prosecution has to establish that the object which is lascivious or appeals to the prurient interest or if its effect of anyone of its items, is, if taken as a whole so as to tend to deprave and corrupt person, who may read, see or hear the matter contained or embodied therein and then evidence has also to be led to prove that such obscene material or object was sold, let on hire, distributed, publicly exhibited in any manner or put into circulation, produced or possessed by the accused. So it is essential that the accused did any of the acts mentioned in clause (a) to (e) of sub-section (2) of Section 292 of the IPC.
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9. In the case at hand, except recovery of cassettes, there is no material available on record to show that the accused did the acts mentioned under clause 2(a) to 2(e) of Section 292 of the IPC. So it can safely be held that mere possession of obscene cassettes cannot by itself attracts the offence and the prosecution has utterly failed to lead any evidence to the effect that the possession was found for the purpose of lending it out.
10. Rajnesh Singh (PW-9), SDOP, has categorically admitted in his cross-examination that after the search, the articles which were recovered from the spot, were not sealed. Perusal of the seizure memo (Ex.-P/9) would reveal that at Sr. No.13, sample of seal was blank. So the cassettes, which were seized from the spot are the same which were produced before the Court, becomes doubtful. According to the prosecution, 99 cassettes were seized from one shop which was alleged to be run by one Beer Singh, but as per (Ex.-P/15), all the recoveries were made from one place. The offence under Sections 292 and 293 of the IPC was registered for offence committed in the year 2002.
11. The Hon'ble Supreme Court in the matter of Sharat Babu (Supra) has settled the law that the activities emanating from electronic form which may be obscene is exclusively punishable under Section 67 of the Information Technology Act, 2000 and not 7 under Section 292 of the IPC, nor both under Section 67 of the IT Act and Section 292 of the IPC. The relevant paragraphs are reproduced hereunder:-
"30. In this regard, we may reproduce Section 81 of the IT Act, which is as follows:-
"81. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act 1957 or the Patents Act 1970." The proviso has been inserted by Act 10 of 2009 w.e.f. 27.10.2009.
31. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Section 67A and 67B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals. However, the said protection has been expanded in the dictum of Shreya Singhal (supra) and we concur with the same.
32. Section 81 also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 of the IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are 8 inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.
37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC."
12. In view of the aforesaid analysis, this Court is of the view that the learned trial Court has wrongly convicted the appellant under Sections 292 and 293 of the IPC, therefore, conviction imposed on the appellant under the aforesaid sections deserves to be set aside and the appellant deserves to be acquitted of the said charges.
13. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant under Sections 292 and 293 of the IPC are set aside and he is acquitted of the said charges. The appellant 9 is on bail. His bail bond shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. He shall appear before the higher Court, as and when directed.
Sd/-
(Deepak Kumar Tiwari) Judge Barve