Delhi District Court
State vs . Bharat. on 29 February, 2012
IN THE COURT OF SH. VISHAL SINGH : MM : DELHI
State Vs. Bharat.
FIR No. 308/97.
U/s. 292 IPC.
PS Mukharjee Nagar, Delhi.
JUDGMENT
a) The sl. no. of the case : 690/03.
b) The Unique ID No. of the case : 02401R0696952003.
c) The date of commission of the : 22/07/1997.
offence
d) The date of institution of case : 17/08/1997.
e) The name of the complainant : ASI Rasdhari Singh.
f) The name & address of accused : Bharat Malik
S/o. Sh. Ram Lal Malik
R/o. 808, Dr. Mukharjee
Nagar, Delhi.
g) The offence complained of : U/s. 292 IPC.
h) The plea of the accused : pleaded not guilty.
i) The date of reserving the order : 06/02/2012.
j) The final order : Acquitted.
k) The date of such order : 29/02/2012.
FIR No. 308/97
PS Mukharjee Nagar 1
THE BRIEF REASONS FOR THE JUDGMENT :
1. The prosecution case, in brief, is that on 22/07/1997 at about 4:30 pm, at A2930/30104, Jaina Building, Mukharjee Nagar, Delhi, accused Bharat Malik was found possessing for sale five obscene magazines containing nude photographs of women in different postures. After investigation, challan was filed by the police.
2. Complete set of copies were supplied to the accused and after hearing arguments, charge was framed against the accused for trial of offence U/s. 292 IPC by my Ld. Predecessor to which accused pleaded not guilty and claimed trial.
3. In support of its case, the prosecution examined PW.1 HC Bahadur Singh, Duty Officer, who has proved the copy of FIR vide Ex. PW1/A. PW.2 is HC Jeet Singh, who had joined the investigation alongwith IO ASI Rasdhari Singh and HC Ved Prakash and has proved seizure of recovered magazines vide memo Ex. PW2/A, personal search of accused vide memo Ex. PW2/B and also identified the case property vide Ex. P1 to P5. The testimony of FIR No. 308/97 PS Mukharjee Nagar 2 this witness cannot be read in evidence against the accused, as he has not completed his testimony on the dates deferred for his cross examination. PW.3 is HC (now ASI) Ved Prakash, who was also on patrolling duty alongwith IO ASI Rasdhari and PW2 HC Jeet Singh and deposed about the proceedings conducted by the IO at the spot.
4. Statement of accused was recorded U/s. 313/281 CrPC, wherein he pleaded innocence and false implication in this case, however, he did not wish to examine any witness in support of his defence.
5. I have heard arguments from Ld. APP for State, accused in person and also gone through the evidence and documents on record carefully.
6. To prove the offence U/s. 292 IPC, the prosecution has to prove that accused was found in possession of five magazines containing nude photographs in different postures. Regarding the incident, the prosecution has examined PW3 ASI Ved Prakash, who deposed that on 22/07/1997, he alongwith IO ASI Rasdhari and HC Jeet Singh was on patrolling duty in the area of PS FIR No. 308/97 PS Mukharjee Nagar 3 Mukharjee Nagar and at around 4:00 pm when they were present near Batra Cinema, Mukharjee Nagar, IO ASI Rasdhari received a secret information that at A29, 30/104, Jaina Building one person who was an editor and publisher, was selling obscene magazines and if raided he could be apprehended. He deposed that upon the said information at about 4:30 pm they reached at the above said place and on the pointing out of secret informer the accused was apprehended by the IO, who disclosed his name as Bharat Malik. He deposed that the accused produced 5 obscene magazines, out of which two were issues of Naughty Boy magazine, while three were issues of Lace Maker magazine, containing semi nude girls in different positions. He further deposed that IO seized the said magazines and put the same in a white cloth pullanda and sealed the same with the seal of RSD and seal after use was handed over to HC Jeet Singh and after preparing the rukka the case was got registered through him and accused was arrested and his personal search was conducted vide memo Ex. PW2/B and after coming back at PS the case property was deposited in malkhana. He further deposed that his statement was recorded by the IO and the accused was released on bail. PW3 has correctly identified the case property in the court. FIR No. 308/97 PS Mukharjee Nagar 4
7. First of all, the accused has produced the proof that he has the licence issued by DCP (Licensing) on 26/07/1994 to publish the magazine by the name of "Naughty Boy", so that no case could be registered against him in respect of possession and circulation of the magazine 'Naughty Boy'. Regarding other seized magazine 'Lace Maker' it need be observed here that there is a thin line that differentiates between nudity, which is an art, and vulgarity, which is an offence. Merely because a magazine contained the photographs of nude females does not, per se, imply that the magazine contained obscene material. Whether the magazine depicted art or obscenity could be disposed to only by the right thinking members of the society. Where the potential readers of a magazine complains to the police that the magazine contains obscene material, the police may have reason to take action against the publisher / distributor of the magazine. However, where the police acts on its own whims and fancies, it becomes the prosecutor and the judge in its own right.
The gravamen of the offence under section 292 IPC is that the magazine is lascivious or appeals to the prurient interest or if it tends to deprave or corrupt the person, who are likely to read, see or hear the matter FIR No. 308/97 PS Mukharjee Nagar 5 contained or embodied in it. Thus, only a potential reader of the confiscated magazines could be the best judge whether the magazine contained art in the form of nudity, or obscenity by vulgar depiction of nude women. It was clearly not done so by the police in this case.
Further, as per prosecution case and as per statement of PW3 ASI Ved Prakash, recovery witness, IO ASI Rasdhari, who had completed all the proceedings at the spot, was also present at the spot and is a witness to recovery but he has not been examined by the prosecution to corroborate the statement of PW3. In the absence of the IO it could not be said that who prepared the rukka and conducted further investigation at the spot. Moreover, the testimony of PW3 regarding conducting of police proceedings at the spot has remained uncorroborated.
8. In these circumstances, I am of the opinion that prosecution has failed to prove its case against the accused beyond any reasonable doubt. Hence, I hereby acquit the accused for the offence he has been charged with. He is on FIR No. 308/97 PS Mukharjee Nagar 6 bail. His bail bond shall remain bound for another six months U/s. 437A CrPC. The case property be confiscated to the state, as per rules. File be consigned to Record Room.
ANNOUNCED IN THE OPEN
COURT ON 29/02/2012. (VISHAL SINGH)
Metropolitan Magistrate
(Copies 1 + 1) Delhi
FIR No. 308/97
PS Mukharjee Nagar 7