Andhra Pradesh High Court - Amravati
Nethala Praveen Kumar vs State Of A.P. on 14 March, 2024
APHC010070752009
IN THE HIGH COURT OF ANDHRA
PRADESH
[3367]
AT AMARAVATI
(Special Original Jurisdiction)
THURSDAY ,THE FOURTEENTH DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE V SRINIVAS
CRIMINAL REVISION CASE NO: 1380/2009
Between:
Nethala Praveen Kumar ...PETITIONER
AND
State Of A P ...RESPONDENT
Counsel for the Petitioner:
1. I V N RAJU
Counsel for the Respondent:
1. PUBLIC PROSECUTOR
The Court made the following:
ORDER:
This Revision is filed by the petitioner/A3, challenging the judgment dated 27.07.2009 in Criminal Appeal No.45 of 2007 passed by the learned I Additional District and Sessions Judge, West Godavari District, Eluru, wherein the learned Judge has dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner/A3 for the offence punishable under Section 292 I.P.C. in the judgment dated 13.02.2007 in C.C.No.597 of 2005 passed by the learned II Additional Judicial Magistrate of First Class, Eluru.
2. The case of the prosecution, in brief, is as follows: 2
a) A1 was the Manager, A2 was Accountant, A3 is Projector Operator and A4 is the gate man of Gopalakrishna theatre, Eluru.
On 09.03.2005, on receipt of information about exhibiting of obscene film in the said cinema hall by the accused, PW.1- Dr.P.Sriram, Mandal Revenue Officer along with his staff conducted a surprise raid on the said theater. By that time, the accused exhibiting an obscene film with duration of 12 minutes by inducting the same in Telugu feature film under the caption of 'Masaka Masaka Chikatilo'.
b) PW.1 drafted an observation report and seized Form-B, Form-D certificates of the said cinema hall and also obscene film and counter foils of cinema tickets. The Police Head Constable registered a case in Crime No.23 of 2005 under Section 292 I.P.C and Sections 3 & 4 of the Indecent Representation of Women (Prohibition) Act, 1986. After completion of investigation, the Sub- Inspector of Police laid charge sheet against the accused.
3. During the course of trial, the complainant examined PW.1 to PW.5 and marked Ex.P1 to Ex.P9 and Mos.1 to 3. On behalf of the accused, no oral or documentary evidence was adduced. 3
4. Basing on the oral and documentary evidence, the trial Court held that A2 and A4 are found not guilty for the offence under Section 292 IPC and A1 to A4 found not guilty for the offence under Sections 3 & 4 of Indecent Representation of Women (Prohibition) Act and accordingly they are acquitted. But the trial Court found guilty A1 and A3 for the offence under Section 292 IPC and sentenced to undergo Simple Imprisonment for a period of three months each and a fine of Rs.2,000/- each, in default, to suffer Simple Imprisonment for a period of two months each.
5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.45 of 2007, before the Court of learned I Additional District and Sessions Judge, West Godavari District, Eluru and the same was dismissed by confirming the judgment of the trial Court.
6. Against the said judgment, the present criminal revision case is preferred by the petitioner/A3.
7. Heard Sri I.V.N.Raju, learned counsel for the petitioner/A3 and Sri Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent-State. Perused the material on record.
4
8. Now the point for consideration in this revision is:
"Whether the conviction and sentence recorded by the Courts below against the revision petitioner are sustainable in law?"
9. This revision is filed by A3, who is a Projector Operator. In both the courts, the petitioner took a defence that the documents covered under Exs.P3 to P8 were not supplied to him and in view of the same, the accused was not had any opportunity to go through the said documents and also cause prejudice to submit his case. It is also found that no independent mediators were taken by the Mandal Revenue Officer while conducing raid on theatre though he was instructed by the Joint Collector to conduct raid as per law under Section 100(4) Cr.P.C. The police as well the Executive Magistrate i.e. Mandal Revenue Officer is expected to secure two independent mediators in the vicinity of the theatre but not secured those mediators.
10. A perusal of the impugned judgments, show that on the date of incident, PW.1 is said to have recorded the statement of A3 on 09.03.2005 covered under Ex.P7. But for the reasons known to the Mandal Revenue Officer as well the Sub-Inspector of Police, Eluru I Town Police Station, they have not supplied the copy of said 5 statement covered under Ex.P7 to the petitioner till date. The said fact is also evident from the record.
11. In this connection, the learned counsel for the petitioner brought to the notice of this court, a judgment of coordinate Bench of this court in Suruvu Parshaiah v. State of A.P.1, in which improper appreciation of legal evidence on record by the Court below result in miscarriage of justice. Therefore, there is a need for inference by this Court.
12. The present revision, which is also preferred basing on the contention of improper appreciation of legal evidence on record is concerned, both the trial Court as well as the appellate Court relied upon the statement of A3 recorded under Ex.P7, is not even supplied. At this juncture, there is another Division Bench judgment of this Court in re, Gaddam Jayarami Reddi2, wherein the Division Bench categorically observed as follows:
"He suppressed the statements of P. Ws. 1 and 2. There can be little doubt in this case that this has resulted in great prejudice to the accused, The accused were deprived of effective means of testing the truth of the statements of PWs. 1 and 2 with reference to their earlier statements. It is a valuable right which the legislature has chosen to center on the accused by enacting Section 162 Cr. P. C. If the earlier 1 2006(1) ALT (CRI.)182 (S.B.) 2 1959(1) An.WR 196 6 statements of the witnesses are not made available to the accused, they lose the opportunity of cross-examining the two witnesses in the light of what was stated, at the earliest opportunity.
These go to the foundations of natural justice and would be struck down as illegal forthwith."
It is also held in the said judgment that it hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once.
13. In the instant case also, the statement on which the prosecution relied on is not even supplied to the accused, which is resulting to the prejudice to the rights of the accused.
14. In a celebrity judgment in Pulukuri Kotayya v. Emperor3, it was observed that if there had been a total refusal to supply copies to the accused, the convictions were liable to be quashed.
15. Even in Baladin v. State of U.P4, the Hon'ble Apex Court held that 'Hence the record made by a police investigating officer has to be considered by the Court only with a view to weighing the 3 AIR 1947 Privy Council 67 4 AIR 1956 Supreme Court 181(187) 7 evidence actually adduced in Court. If the police record becomes suspect or unreliable as in the present case, on the ground that it was deliberately perfunctory or dishonest. It loses much of its value and the Court in judging the case of a particular accused has to weigh the evidence given against him in Court keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as great a value as it otherwise would have in weighing all the material on the record as against each individual accused. This principle enunciated in the passage does not in any way conflict with the rule embodied in Kotaiah's case, namely that where statements are not made available an inference which is almost irresistible arises of prejudice to the accused.'
16. In the instant case also, the statements of the accused are not even supplied to the accused, which is nothing but prejudice the rights of the accused. Without improper appreciation legal evidence on record by the Courts below resulted in miscarriage of justice. It is also to be emphasized that the revisional power of the High Court under Section 397 read with Section 401 of the Criminal Procedure Code is as wide as the power of Court of appeal 8 under Section 397 of the Code, it is now well settled that normally the jurisdiction of the High Court under Section 397 of the Code is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice.
17. In view of the above reasons, I am of the view that the conviction and sentence passed by the learned II Additional Judicial Magistrate of First Class, Eluru, which was confirmed by the learned I Additional District and Sessions Judge, West Godavari District, Eluru, are not tenable in law and the same are liable to be set aside.
18. Accordingly, the Criminal Revision Case is allowed, setting aside the conviction and sentence recorded in the judgment dated 13.02.2007 in C.C.No.597 of 2005 passed by the learned II Additional Judicial Magistrate of First Class, Eluru, as confirmed in Criminal Appeal No.45 of 2007 on 27.07.2009 by the learned I Additional District and Sessions Judge, West Godavari District, Eluru and thereby the petitioner/A3 herein is acquitted of the 9 charge under Section 292 I.P.C. The petitioner/A3 shall be released forthwith if he is not required in any other case.
19. Miscellaneous petitions pending if any, shall stand closed.
__________________ JUSTICE V.SRINIVAS Date: 14.03.2024 Pab 10 THE HON'BLE SRI JUSTICE V.SRINIVAS CRIMINAL REVISION CASE No.1380 of 2009 DATE: 14.03.2024 Pab