Karnataka High Court
Mr. Prashanth Kamath vs The State By Mangalore on 8 August, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
-1-
NC: 2023:KHC:28089
CRL.RP No. 620 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 620 OF 2015
BETWEEN:
1. MR. PRASHANTH KAMATH
S/O K. U. KAMATH,
AGED ABOUT 48 YEARS,
R/AT GURUSHRI APARTMENT,
BETTAGUDDA, BEJAI,
MANGALORE, D.K. -575 001.
2. PRADEEP
S/O NARAYANA,
AGED ABOUT 31 YEARS,
R/AT P. L COMPOUND,
JEEPU, MORGANS GATE,
MANGALORE, D. K.-575001
3. ASHOK
AGED ABOUT 27 YEARS,
Digitally R/AT BHATNAGAR, THOKKOTTU
signed by MANGALORE, D. K. -575 001.
RENUKAMBA
KG 4. JAGADISH
S/O SANJEEVA,
Location: High AGED ABOUT 34 YEARS,
Court of R/AT NEAR NAVABHARATH SCHOOL,
Karnataka CAR STREET,
MANGALORE, D. K.-575 001.
...PETITIONERS
(BY SRI. KARUNAKAR .P, ADVOCATE)
AND:
THE STATE BY MANGALORE,
SOUTH POLICE STATION,
-2-
NC: 2023:KHC:28089
CRL.RP No. 620 of 2015
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.
...RESPONDENT
(BY SRI. MAHESH SHETTY, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 29.8.2005 IN
C.C.NO.4018/2004 PASSED BY THE JMFC-II COURT,
MANGALORE D.K., AND ORDER DTED 27.4.2015 PASSED BY
THE PRL. SESSIONS JUDGE, D.K., MANGALORE
CRL.A.NO.318/2005.
THIS PETITION COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed against the judgment of conviction and order of sentence passed by the JMFC-II, Mangaluru, D.K., in CC No.4018/2004 dated 29.08.2005 and confirmed by the Principal Sessions Judge, Mangaluru, D.K., in Criminal Appeal No.318/2015 vide judgment dated 27.04.2015.
2. For the sake of convenience, the parties herein are referred with their original ranks occupied before the trial Court.
-3-
NC: 2023:KHC:28089 CRL.RP No. 620 of 2015
3. The brief factual matrix leading to the case are that, the Mangaluru South Police have submitted the charge sheet against the petitioners for the offence punishable under Section 292-A of IPC asserting that, the accused being the owner of Amritha Theatre situated at Pandeshwar and Accused No,.2 being the Supervisor/Manager, Accused No,3 being operator and Accused No.4 being the gate keeper were involved in exhibiting the obscene pictures for public view on 04.06.2004 when a Tamil Film being exhibited. It is specifically asserted by the prosecution that, the complainant on the basis of credible information, held raid on Amritha Theatre situated in Pandeshwar, Mangaluru and found that the film by name Pudiya Kama Sutra is being exhibited from 10.15 am. After interval, it is alleged that the obscene picture was exhibited, which was without any certificate from the Sensor Board to exhibit the same to public view and therefore, it is asserted that the accused have committed the offence punishable under Sections 292-A of IPC.
-4-
NC: 2023:KHC:28089 CRL.RP No. 620 of 2015
4. Accused Nos. 1 to 4 were arrested and remanded to judicial custody and subsequently they were enlarged on bail and the Investigating Officer has also seized the material objects from the Amritha Theatre, and after completion of investigation, the charge sheet came to be submitted against the accused persons. The accused have appeared and denied the charge.
5. In order to prove the guilt of accused, the prosecution got examined in all four witnesses as PWs. 1 to 4 and placed 17 documents marked as Ex.P1 to Ex.P17 and MO Nos. 1 to 24. After conclusion of evidence by the prosecution, statement of accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against them, in the case of prosecution. The case of accused is of total denial.
6. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted Accused Nos.1 to 4 for -5- NC: 2023:KHC:28089 CRL.RP No. 620 of 2015 the offence punishable under Section 292-A of IPC and imposed sentence of imprisonment for two months with fine of Rs.1,000/- each. Being aggrieved by this judgment of conviction and order of sentence, the accused have preferred an appeal before the Principal Sessions Judge, Mangaluru, in Criminal Appeal No.318/2005. The learned Principal Sessions judge after re-appreciating the oral as well as documentary evidence, dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the trial Court. Being aggrieved by these concurrent findings, Accused Nos. 1 to 4 are before this Court by way of revision.
7. Heard the arguments advanced by the learned counsel for the revision petitioners/accused and the learned HCGP appearing for the respondent-State and perused the records.
8. Learned counsel for the revision petitioners would contend that, no independent witnesses were examined and only official witnesses were examined and the seizure -6- NC: 2023:KHC:28089 CRL.RP No. 620 of 2015 itself is not proved. Hence, he would contend that both the courts below have erred in convicting the accused. He would alternatively contend that, in case of confirmation of conviction, the sentence of imprisonment may be set aside by restricting the sentence for fine only.
9. Per contra, learned HCGP would support the judgment of conviction and order of sentence passed by the trial Court and affirmed by the First Appellate Court. He would contend that, the MOs. 3 to 9 are the Film Rolls, which are containing obscene films exhibited and seizure is proved by evidence of PW.2 and PW.4. He would also contend that, there is no specific denial regarding seizure and no suggestion regarding non-inclusive of obscene scenes in between the film. Hence, he would contend that, both the courts below have appreciated the oral and documentary evidence in proper perspective and have rightly convicted the accused, which does not call for interference.
-7-
NC: 2023:KHC:28089 CRL.RP No. 620 of 2015
10. Having heard the arguments and perusing the records, the following point would arise for my consideration:-
"Whether the judgment of conviction and order of sentence passed by the trial Court and confirmed by the First Appellate Court are perverse, arbitrary and illegal so as to call for any interference by this Court?"
11. The prosecution in order to substantiate the contention, has examined in all Four witnesses. PW.1 was working as PSI and he has played limited role in filing charge sheet against Accused Nos.1 to 4. He has deposed that on 04.06.2004 at 3.15 p.m., the complainant produced seizur mahazar, seized articles and FIR along with accused before him. He registered the same in Crime No.126/2004 and forwarded the FIR to the concerned Magistrate.
12. PW-3 -Vishwanath is an ASI working in DCIB, Mangalore and he is the complainant. In his evidence he deposed regarding receiving credible information and -8- NC: 2023:KHC:28089 CRL.RP No. 620 of 2015 raiding the Amritha Theatre at Pandeshwara and found that an exhibition of blue film for public view was going on. He has also specifically asserted that he has taken a ticket by paying Rs.31/- per ticket and he found that Tamil Film by name "Pudiya Kama Sutra" was being exhibited and after interval he found that a blue film was exhibited with obscene pictures. Though this witness was cross- examined at length nothing was elicited so as to impeach his evidence. He has specifically deposed regarding seizure of the film rolls as per MOs.3 to 9. In The entire cross-examination the seizure is not challenged seriously. Ex.P2 is the mahazar which is drawn by this witness and mere non-examination of mahazar witness itself is not fatal when seizure itself is not denied by the defence.
13. PW.4-Panchaksharappa has supported the case of the complainant - PW.1 and PW.3 is also an eye witness. The evidence of PWs.3 and 4 coupled with MOs.3 to 9 would clearly establish that a blue film is being exhibited while displaying a Tamil film after the interval. -9-
NC: 2023:KHC:28089 CRL.RP No. 620 of 2015 The photographs produced at Exs.P3 to 12 are pertaining to seized material objects. Exs.P13 to 17 are the tickets purchased by the complainant. No animosity is disclosed between the complainant and accused so as to falsely implicate the accused in this case.
14. During the course of arguments it is submitted that the accused was the owner and he had no knowledge as to what has transpired in his theatre. But however, in the entire evidence he did not disclose as to what steps he has taken for exhibiting proper film in his theatre. He is equally responsible for the act of his agents, as admittedly accused Nos.2 to 4 are acting as per his instructions and he has not given any explanation in this regard in his statement recorded under section 313 of Cr.P.C.. Hence, the evidence clearly establishes beyond all reasonable doubt that accused have committed offence punishable under Section 292 of IPC. Both the Courts below have appreciated the oral as well as documentary evidence in detail and rightly convicted the accused. No perversity or
- 10 -
NC: 2023:KHC:28089 CRL.RP No. 620 of 2015 illegality is found with the order of conviction. Hence, question of interference with the judgment of conviction does not arise at all.
15. The learned counsel for revision petitioners/accused further contend that the offence is said to have taken place about 19 years back and now Accused No.1 is also not running the theatre and as such considering to the long period, some leniency may be shown in the sentence of imprisonment.
16. Section 292 of IPC deals with selling, letting to hire distribution or publicly exhibiting any obscene book, pamphlet, paper, drawing, painting etc. Further it mandates that the said offence is punishable with imprisonment which may extend to two years and with fine, which may extend to Rs.2000/- for first conviction. It is not the case of prosecution that this is the second offence of the accused. Hence, question of considering the second portion of the said provision of Section 292 of IPC doesn't arise at all. Hence, for the said offence under
- 11 -
NC: 2023:KHC:28089 CRL.RP No. 620 of 2015 Section 292 of IPC, the punishment prescribed is the imprisonment which may extend to two years and fine, which may extend to Rs.2000/-.
17. In the instant case, the trial Court has convicted all Accused Nos.1 to 4 to undergo S.I. for two months with fine of Rs.1,000/- each. The records would disclose that the revision petitioners were arrested on 04.06.2004 and released on bail on 05.06.2004. They were in custody for a period of two days. For the said offence, imposition of sentence of imprisonment, is mandatory, but no minimum sentence is prescribed under the code.
18. The learned counsel for revision petitioners/accused would contend that the period of custody undergone by the petitioners may be set off as against the sentence and the accused have already paid the fine. However, the fine imposed by the trial Court is only Rs.1,000/- which is too meager and considering the nature of the offence, the fine amount needs to be enhanced to Rs.2,000/- for each accused and considering
- 12 -
NC: 2023:KHC:28089 CRL.RP No. 620 of 2015 the fact that the offence is said to have taken place about 19 years back and since of lot of water has been flown in between, the period of custody can be set off as against the sentence, which will serve the purpose.
19. Looking to these facts and circumstances, the revision petition needs to be allowed in part so far as it relates to the sentence of imprisonment and as such, the point under consideration is answered partly in affirmative and accordingly, I proceed to pass the following:
ORDER
i) The revision petition is allowed in part.
ii) The impugned judgment of conviction dated 29.08.2005 passed by JMFC, II Court Mangalore in C.C.No.4018/2004 and confirmed by Principal Sessions Judge, Mangalore in Criminal Appeal No.318/2005 vide judgment dated 27.04.2015, stand confirmed. However, the sentence of imprisonment is modified and accused/revision petitioners are sentenced to undergo imprisonment, which they have already undergone during custody till they were
- 13 -
NC: 2023:KHC:28089 CRL.RP No. 620 of 2015 enlarged on bail and the fine stands enhanced from Rs.1,000/- to 2,000/-. In default of payment of fine accused Nos. 1 to 4 shall undergo further imprisonment for a period of one month.
The registry is directed to send back the original records to the concerned Courts below with a copy of this order.
Further, the trial Court directed to secure the presence of Accused Nos.1 to 4 for the purpose of recovering fine amount or else to undergo default sentence as ordered by this court in this order.
Sd/-
JUDGE KGR* List No.: 1 Sl No.: 26