It is submitted that Accused No. 1 has got the computer released in his favour. But, no one has claimed the 3 CDs., seized in the case. It is not the case of prosecution that the accused were possessing the obscene films for the purpose of sale, distribution, circulation etc., as mentioned in Clause (a) of Sub-section 2 of Section 292 of I.P.C. Therefore, the act of the accused privately viewing obscene film does not constitute an offence under Section 292of Indian penal code. The decision cited by the learned by the Counsel for the accused is applicable to the case on hand on all the fours. The learned magistrate has erred in taking cognizance of offence under Section 292 of I.P.C. Therefore, the petitioners are entitled to succeed in this petition.
2009((3))ALT(Cri)111, 2009(3)ALT(Cri)111, 2008CriLJ3408, ILR 2008 KARNATAKA 3268, 2008(4)KCCR2720
IN THE HIGH COURT OF KARNATAKA
Decided On: 31.03.2008
Appellants: Sri Deepankar Chowdari and Ors.
Vs.
Respondent: The State of Karnataka
Vs.
Respondent: The State of Karnataka
Hon'ble Judges/Coram:
K. Bhakthavatsala, J.
Indian Penal Code, 1860 - Section 292--Offence under--Police Report against the petitioners-Allegation--Petitioners were watching obscene film privately in their residence--Whether privately viewing obscene film constitute an offence punishable under Section 292 of IPC--Held, Section 292 of I.P.C. was added in accordance with the resolution passed by the International Convention for the suppression and circulation of, and traffic in, obscene publications, signed at Geneva on behalf of the Governor General in Council on the 12th day of September 1923--Further Held, It is not the case of prosecution that the accused were possessing the obscene films for the purpose of sale, distribution, circulation etc., as mentioned in Clause (a) of Sub-section 2 of Section 292 of I.P.C. Therefore, the act of the accused privately viewing obscene film does not constitute an offence under Section 292 of Indian Penal Code. The learned Magistrate has erred in taking cognizance of offence under Section 292 of I.P.C.--Hence, proceedings initiated against the petitioners is quashed.
Petition is allowed.
ORDER
K. Bhakthavatsala, J.
1. The petitioners/accused in C.C. No. 717/2006 on the file of VII Addl. Chief Metropolitan Magistrate, Bangalore, for the offence punishable under Section292 of the Indian Penal Code, are before this Court, praying for quashing the proceedings in C.C. No. 717/2006.
2. The brief facts of the case leading to the filing of the Petition under Section 482 of Cr.P.C., may be stated as under:
It is the case of the prosecution that the petitioners/accused No. 1 to 3 are the students of Acharya Polytechnic Engineering College, Bangalore. The accused No. 1, and 2 are tenants residing at No. 415, Ranganatha Nilaya, 19th Main, 6th Cross, behind MEI Layout at Bangalore. On information, sub-inspector of Peenya police raided the residence of the petitioners on 30.11.2005 at 11.30 a.m., and found the accused were watching obscene film in the computer of Accused No 1. The Police seized the computer and 3-C.Ds. After investigation, the investigating officer laid charge sheet against the petitioners/accused for the offence punishable under Section 292 of I.P.C. It is the case of the petitioners that they have not committed the offence alleged against them and they have prayed for quashing the proceedings in C.C. No. 717/2006 on the file of VII Addl. Chief Metropolitan Magistrate, Bangalore.
3. The learned Counsel for petitioners submitted that the complainant himself has investigated the case and laid charge sheet and therefore charge sheet is not sustainable in law. It is further contended that the petitioners/accused are not involved in the process of production, distribution and exhibition of obscene film; and private viewing of the same by the petitioners at their residence in personal computer does not constitute an offence punishable under Section 292 of IPC. Further, the act of the Police infringes the right of privacy and right to personal liberty as enshrined in Article 21 of the Constitution of India.
Learned Counsel for the petitioner has cited a decision of reported in Jagdish Chavla and Ors. v. State of Rajasthan MANU/RH/0366/1999 on the point that possession of the obscene object is punishable under Section 292 of IPC, if the possession is for the purpose of sale, hire, distribution, public exhibition or circulation. If the obscene object is kept in a house and is not for sale, hire, public exhibition or circulation, the accused cannot be charged under Section292 of IPC.
4. Learned Government Pleader submitted that the case was registered by CW-1 Sri. Bangarappa, P.S.I., of Peenya Police Station, and CW-6 Sri. C.G Rangaswamy, P.S.I., who investigated the case and laid charge sheet, and therefore the first contention of the counsel for the petitioners, holds no water. He further submits that the act of the accused falls within the mischief of Section 292 of IPC and there is no good ground for quashing the proceedings.
5. In view of the arguments addressed by the learned Counsel for the petitioners, a short question that arises for consideration is:
Whether privately viewing obscene film constitutes an offence punishable under Section 292 of IPC?
6. Answer to the above question is in the negative for the following reasons:
It is useful to excerpt Section 292 of IPC for immediate reference, which reads as under:292. Sale, etc., of obscene books, etc.-(1) For the purposes of Sub-section (2), book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or(where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a tend to deprave and corrupt person who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.(2) Whoever-(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire distribution, public exhibition or circulation, makes, produces or has in possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation,or(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or(e) offers or attempts to do any act which is an offence under this section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.Exception.-This section does not extend to-(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure-(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or(ii) which is kept or used bona fide for religious purposes;(b)any representation sculptured, engraved, painted or otherwise represented on or in-(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.
7. The first contention of the learned Counsel for the petitioners is that the complainant himself investigated the case and filed charge sheet falls to the ground as the case was investigated by CW-6 and laid charge sheet.
8. Section 292 of IPC was added in accordance with the resolution passed by the International Convention for the suppression and circulation of, and traffic in, obscene publications, signed at Geneva on behalf of the Governor General in Council on the 12th day of September 1923.
9. Madras High Court in v. Sundarrajan v. State (un reported) has held that if a blue film is found in the possession of the accused, he cannot be convicted simply on the ground of possession unless it is further proved that the purpose of keeping the was same selling or letting for hire. Without proving the purpose of possession mentioned in Section 292(2)(a) of IPC, a man cannot be convicted for the offence under Section 292 of IPC. The decision rendered in the above-said Sundarrajan's case was followed by the Rajasthan High Court in Jagdish Chavla, supra. In Jagdish Chavla's case, it was alleged that on 17.8.1993, the Circle Inspector received some information and he raided the house situated in Jawahar Nagar, Sri Ganganagar, belonged to Charanjit at 5.30 p.m. and noticed that four persons including one lady, viewing obscene film on the television with the help of V.C.R. He, therefore, seized the cassette, television set and the V.C.R. and registered the case under Section 292 of IPC and under Section 10 of the Rajasthan Video Film Regulation & Exhibition Act, 1990. On completion of the investigation, the Police submitted a challan against the accused persons.
10. It is submitted that Accused No. 1 has got the computer released in his favour. But, no one has claimed the 3 CDs., seized in the case. It is not the case of prosecution that the accused were possessing the obscene films for the purpose of sale, distribution, circulation etc., as mentioned in Clause (a) of Sub-section 2 of Section 292 of I.P.C. Therefore, the act of the accused privately viewing obscene film does not constitute an offence under Section 292of Indian penal code. The decision cited by the learned by the Counsel for the accused is applicable to the case on hand on all the fours. The learned magistrate has erred in taking cognizance of offence under Section 292 of I.P.C. Therefore, the petitioners are entitled to succeed in this petition.
11. In the result, the petition is allowed and the proceedings in C.C. No. 717/2006 on the file of VII Addl. Chief Metropolitan Magistrate at Bangalore, for the offence under Section 292 of I.P.C., is quashed.
No comments:
Post a Comment