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5. The question for consideration in the present petition is whether it is a fit case to exercise our discretion for quashing the F. I. R. on the basis of recovery made therein and offence is made out against the petitioners according to them. Learned counsel for the petitioners also moved an application for summoning the records seized by the respondents, in the aforesaid criminal case in order to show that the material seized by the respondents would not constitute an offence under Section 292, IPC. In the supplementary affidavit filed along with the said application, it has been averred that the petitioners were not arrested from the precincts of M/s. Movies, but in fact, were arrested from their houses. It has been further averred that the F. I. R. wrongly states that the police recovered the photographs of petitioners with a number of other persons in sex provocating gesture or postures whereas actually no such photographs have been recovered much-less the same being obscnce. Similarly, by means of the said affidavit it has been denied that the petitioners' photographs depicting sexual intercourse have been recovered in addition to the above photographs of the petitioners, whereas, in fact, there is no such recovery of the photographs. It has further been averred that the police in order to defame and disrepute the petitioners and with mala fide intentions tore the various photographs from various magazines which were found there and seized them. Apart from this, the petitioner alleged that mere nudity is not obscenity and the recovered material would not constitute obscene under Section 292, IPC An attempt was made and it was urged on behalf of the petitioner that various photographs recovered were part of the photo story which was in the process of being finalised for..............publication and those stories were merely depicting evil designs in a man and how he suffers its consequences if falls prey either to alchohalism or woman trap for extra marital satisfaction.

13. Learned counsel for the petitioners made efforts for bringing on record all the documents seized by the police for examination by this court whether case under Section 292 IPC has been made out or not for exercising powers under Article 226 of the Constitution of India. According to the petitioner, obscenity as defined under Section 292 IPC cannot be inferred only by the naked photographs of the girls. But has to be taken into consideration the context and the surrounding circumstance and for the purpose for which it was being depicted before it could be held to be obscene. For the purpose of scope of Section 292 IPC and what constitutes obscenity within the meaning of the said section reliance was placed in the cases; State v. Thakur Prasad, AIR 1959 All 49 : (1959 Cri LJ 9), Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881 : (1965 (2) Cri LJ 8) Chandra Kant v. State of Maharashtra, AIR 1970 SC 1390 : (1970 Cri LJ 1273) K.A. Abbas v. The Union of India, AIR 1971 SC 481, and Samaresh Bose v. Amal Mitra, AIR 1986 SC 967 : (1986 Cri LJ 24).

14. The question in the present case is whether on the materials disclosed in the F. I. R. an offence under Section 292 IPC is made out or not. The main contention of the petitioner is that the F. I. R. does not state the correct fact and the materials which have been seized would not constitute an offence under Section 292 IPC and each material seized by the respondents should be examined by this court in the present proceedings to test whether any offence is made out or not. The contention is that if each material is considered in the light of the surrounding story for which it was being made or other facts then the court cannot come to the conclusion that it is obscene and thus it would not be an offence under Section 292 IPC Further, the petitioners deny the factum of the seizure and deny the allegations made in the F. I. R. According to the petitioners they were not arrested from the place where raid was conducted but from their residence. They allege that the materials seized by them were torn from the magazines found at the premises and they were wrongly connected with the petitioners for bringing the offence of obscenity within the meaning of Section 292 IPC.

Thus, there is a specific provision that in case the prosecution fails to collect the materials, the court concerned could discharge the accused.

17. In the present case we are called upon whether this court could exercise its powers under Article 226 of the Constitution of India for quashing the F. I. R. and withstall investigation in pursuance to the same. Petitioner has made an application along with supplementary affidavit for. .......... summoning each material seized by the respondents to test whether any offence under Section 292 IPC is made out or not, Under the Cr PC the court concerned has to examine each material before either framing charge or discharging and while examining each material the court has to see whether each of such document either separately or in conjunction makes out any offence under Section 292 IPC or not. If this court has to examine each document in order to test whether any offence under Section 292 IPC is made out or not it would in effect be substituting its place for the court constituted under the Cr. P.C.