Delhi District Court
State vs . Vijay Mohan Sharma & Another on 28 September, 2013
IN THE COURT OF SH.VINOD KUMAR GAUTAM
ACMM-02 (CENTRAL) : DELHI
State Vs. Vijay Mohan Sharma & another
FIR No. : 432/95
P.S. Kashmere Gate
U/s : 292 IPC & 4/6 of IRW Act.
Date of Institution : 19/10/1995
Date of reserve of order : 28/09/2013
Date of announcement : 28/09/2013
J U D G M E N T.
1. Sr. No. of the case : 38/CB/96
2. Name of the Complainant : SI Ramesh Kumar
3. Date of incident : 30/06/1995
4. Name of accused :(1) Ajay Kumar Singh
S/o Kundan Singh,
R/o Vill. & P.O Dahiya,
District Jaunpur, U.P.
(2) Vijay Mohan Sharma
s/o Sh. Ved Mohan Sharma
R/o 106-E, Kamla Nagar, Delhi.
(3) Moazzam Ajazi
S/o Sh. Rajiv-ud-din
R/o R/o 106-E, Kamla Nagar, Delhi.
5. Offence complained
of or proved: : U/s 292/34 IPC & U/s 4/6of IRW Act.
6. Plea of accused : Pleaded not guilty
7. Final Order : Acquitted.
8. Date of such Order : 28/09/2013
FIR No. 432/1995 Page No.1 of 11
BRIEF STATEMENT OF THE REASONS :
1. Brief resume of facts of the case of the prosecution is that the chargesheet was filed by the Police against the accused persons for the offence under section 292 IPC as well as under Section 2/4 IRW Act submitting therein that a secret information was received on 30.06.1995 on which a raiding party was prepared and a raid was conducted at stall no. 5, ISBT, Kashmere Gate, Delhi and all the accused were arrested. Accused Ajay Kr. Singh is a Proclaimed Offender in the present case. It is alleged that all the accused persons had put in to circulation the obscene magazines. The Magazine Eternica January/February 1995 issues were published by accused Vijay Mohan Sharma and the Guys 'N' Gals magazine was published by the accused Moazzam Azazi which contains obscene material and objects in the form of naked/semi naked photographs of women which would likely to deprave the minds of the persons and they were represented in an immoral manner in those magazines.
2. After supply of documents to both the accused, a notice under FIR No. 432/1995 Page No.2 of 11 Section 251 Cr.PC was framed against both the accused persons on 25.09.2000, to which they pleaded not guilty and claimed trial.
3. To prove its case, the prosecution has examined four witnesses i.e. PW-1 ASI Ranjeet Kumar, PW-2 Retd. SI Hari Singh, PW-3 SI Rambir Singh and PW-4 Inspector Ramesh Kumar. Thereafter, prosecution evidence was closed.
4. Statements of both the accused persons were recorded under Section 281 CrPC read with Section 313 Cr.P.C on 17.08.2013 wherein they have stated that they are innocent and have been falsely implicated in the present case.
5. I have heard the final arguments advanced by the Ld. APP for the State and the accused persons and have gone through the entire record carefully.
6. Ld. APP for the State has argued that prosecution has been able to prove its case and the photographs of women in the aforesiad Magazines are obscene and these magazines were printed/published FIR No. 432/1995 Page No.3 of 11 by the accused persons and has prayed that both the accused should be convicted. On the other hand, accused persons have refuted the aforesaid contentions and have contended that there is no public or independent witness been joined in the alleged raid though the place where the alleged raid was done is a crowded area and the time of raid was 6.30 P.M. They have further contended that in the present case no investigation has been done by the investigating officer to connect the accused persons with the allleged magazines. It is further contended that their names in the mazagine have been wrongly mentioned. It is further contended that Section 5 of the Indecent Representation of the Women Act, 1986 the power of investigation is only with a Gazetted officer which has not been done in the present case.
7. In the present case all the witnesses are police officials and no public witness has been made as a witness to the alleged raid despite availability of the public persons at the spot as the alleged place of raid is a highly populated area. PW2 has also stated in his cross examination that there were some other stalls situated near the stall no. 5. PW4 has also stated in his cross examination that there were FIR No. 432/1995 Page No.4 of 11 some Ticket counters of the roadways buses and some government offices situated near the spot. Therefore, it can not be said that no public persons would not have been joined. No notice has been proved on record to show that any of the public persons had refused to join the investigation. It is also not the case of the prosecution that there was any urgency to commit the raid immediately after receiving of the alleged secret information. Therefore, non joining of the public witnesses in the alleged raid creates a doubt in the story of the prosecution.
8. Testimony of PW-2 is normal in nature as he is not a witness of raid and has only taken part in the investigation with regard to the arrest of the accused Vijay Mohan Sharma and the accused Moazzam Azazi.
9. PW3 is also a formal witness being the scribe of the F.I.R. No. 432/95 who has proved the same.
10. PW-4 has deposed in his examination-in-chief that he has taken part in the raiding party and also done the investigation of the FIR No. 432/1995 Page No.5 of 11 case and he claimed that he had arrested the accused Ajay Kumar. In his cross-examination, he has stated that he had not done any inquiry from RNI office as well as DCP office regarding who was the publishers, printer and editors of the magazines in question and has also stated that he did not visit to the office of M/s. Elegant Publisher and did not inquire about who are the directors of the same. Thus, there seems to be serious lacuna in the case of the prosecution. All the newspapers magazines which are published in India are required to give requisite details with RNI as regards their respective editor, printer and publisher and the information which could have easily gathered from RNI and which would have thrown necessary light on this particular issue is clearly missing in the present case.
11. Accused Vijay Mohan Sharma and Moazzam Azazi have been apprehended simply because their names appear in the magazines. This itself is not sufficient. Case might have been proved had the necessary information been gathered or collected from the office of RNI or from ROC but nothing of that short has been done. FIR No. 432/1995 Page No.6 of 11
12. It is also worthwhile to mention here that there was one case pertaining to one magazine with the name of Debonair and a case was registered u/s 292 IPC on the ground that the magazine contained obscene material i.e photographs of naked men/naked women. This matter came up before Hon'ble High Court of Delhi and vide order dated 20.03.86 in Criminal Revision Petitions No. 15/80, 16/80 & 17/80, it was held that there was no offence u/s 292 IPC. It was held as under in that case :
"Applying this test, the nude pictures cannot be termed as obscene i.e which will have a tendency to deprave and corrupt the minds of people in whose hands the magazine in question is likely to fall. The magazine is published in English language. It contains articles on topical subjects which may be categorized as political, economic book reviews etc. It also contains some really decent pictures in the background of natural scenery. However, a look at the impugned pictures would show beyond a shadow of doubt that they can hardly be said to have any aesthetic or artistic, rather seems to have been taken with the sole purpose of attracting readers who may have a prurient mind. The women in FIR No. 432/1995 Page No.7 of 11 nude have been just made to lie on a grassy plot or sit on some stool etc. and pose for a photograph in the nude. So they may well be said to be vulgar and indecent but all the same it may be difficult to terms them obscene within the meaning of Section 292 IPC. As observed by the Supreme Court in Samaresh Bose. "A Vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences."
13. So even though these photographs may appear to be vulgar and indecent to people of cultured and refined taste and they have a sense of shock and disgust, it cannot be held by any stretch of reasoning that these nude/semi nude pictures would on that account fall within the purview of obscenity. It may be noticed here that in the book "Prajapati" with which their Lordship were concerned in Samaresh Bose had references to kissing and narrations in slang and vulgar language of FIR No. 432/1995 Page No.8 of 11 various affairs and episodes with emphasis on sex. However, their Lordships observed :
"We are satisfied on reading the book that it could be considered to be obscene. Reference to kissing, description of the body and the figures of the female characters in the book and suggestions of acts of sex by themselves may not have the effect of depraving, debasing and encouraging and readers of any age to lasciviousness and the novel on these counts, may not be considered to be obscene."
14. So, even though the impugned pictures of nude/semi-nude women in the two issues of the magazine, adverted to above, are apparently vulgar and indecent having no artistic or aesthetic value and designed simply to pander to the lustful eyes of a section of readers, who may be attracted to purchase the magazine, the same cannot be said to have the effect of depraving and corrupting the minds of the readers who are likely to go through them. It may also be notice that at page 8 of the June 1977 issue of the magazine there is a caricature of a nude man and a women and the lustful eyes of the man are well set on the breasts of the woman who is sitting in his lap. Below it there is following legend: FIR No. 432/1995 Page No.9 of 11
"The Eyes Have it: The sexiest part of the human body is the eyes, according to students of Oregon State University. Man listed the sexiest parts of a girl as eyes, breasts, waist, bottom. Girls listed eyes, shoulders, chest muscular arms, hair and mouths."
15. Certainly this picture excels in vulgarity and indecency the other nude/semi-nude pictures of women in the two issues of the magazines. However, it is in the form of caricature. So even though it is repulsive and disgusting it would not possibly fall within the obscenity. Anyhow, the impugned pictures are not of the type which would prime facie warrant trial of the petitioners for offence u/s 292 IPC. All I may say is that it is high time that the petitioners improve their standard of photographs and pictures of nude women so as to impart a really artistic and aesthetic touch to the same without, in any manner, over-stepping the standards of contemporary sexual morality and sense of decency".
16. Be that as it may, facts remains that I need no go into the question of obscenity as first prosecution has to show that magazines FIR No. 432/1995 Page No.10 of 11 in question were published, edited and printed by the accused persons. There is no such material before me. The prosecution has failed to prove its case against both the accused persons beyond reasonable doubt. Hence, I acquit both the accused persons of all the charges leveled against them. Case property be confiscated to state File be consigned to record room.
Announced in the open court (V. K. GATUAM)
on 28/09/2013 ACMM-02 (CENTRAL)
DELHI
FIR No. 432/1995 Page No.11 of 11