S.Sheshadri vs State Of Kerala

G.Girish, J

This revision is preferred against the conviction of the petitioner for the offence under Section 292(a) of I.P.C and the sentence of imprisonment for two years and fine Rs.2,000/-, imposed by the Chief Judicial Magistrate, Kozhikode, which the appellate court modified, reducing the sentence of imprisonment to one year while retaining the fine of Rs.2,000/-

In a search conducted at a private library in Kozhikode on 15.02.2000, 370 books containing nude photographs of women and obscene literature, along with a suitcase were recovered by the Sub Inspector and Assistant Sub Inspector of Kasaba Police Station. The petitioner, who was found in that Library, was booked for the commission of offence under Section 292(a) of I.P.C and Sections 3 and 6 of Indecent Representation of Women (Prohibition) Act, alleging that he was the owner and proprietor of the library. Accordingly, after investigation, a final report was laid against the petitioner alleging the commission of the aforesaid offences.

After evaluating the evidence of prosecution which consisted of the oral testimonies of five witnesses as PW1 to PW5 and six documents as Exts.P1 to P6, in addition to the material objects marked as MO1 and MO2 series, the learned Chief Judicial Magistrate, Kozhikode convicted the petitioner for the commission of the offence under Section 292(a) of I.P.C and sentenced him to imprisonment for two years and fine Rs.2,000/- with a default clause of simple imprisonment for another six months.

In the appeal, the II Additional Sessions Judge, Kozhikode upheld the conviction of the petitioner but reduced the sentence of imprisonment to one year while retaining the fine imposed by the trial court.

It is aggrieved by the above concurrent findings of conviction, and the sentence of imprisonment and fine imposed by the appellate court, that the revision petitioner has approached this Court.

Heard Advocate Ms.Anju.R.S, the learned counsel for the revision petitioner and the learned Public Prosecutor.

The verdicts rendered by the courts below, are assailed by the revision petitioner mainly on the following grounds:

(i) There is absolutely no evidence adduced by the prosecution to show that the petitioner was the owner or proprietor of the library from where the objectionable books were seized.

(ii) There is no independent evidence other than the opinion of the learned Trial Magistrate about the obscenity of the contents of the books seized from the library.

(iii) There has been an unexplained delay of more than two days in forwarding the FIR and search memo to the Magistrate.

As regards the challenge regarding the absence of evidence pointing to the petitioner’s ownership of the library building, the trial court as well as the appellate court are seen to have been carried away by the belief that Ext.P6 rent receipt issued by one Subramanya Iyer in respect of the abovesaid library building would give the indication that the petitioner, who is said to be the son of the said person, had been conducting the above library. However, it is pertinent to note that there is absolutely nothing on record other than a bare statement of PW5 that the person by name Subramanya Iyer referred in Ext.P6 is the father of the petitioner. The trial court has observed in the impugned judgment that, at the time of commission of the offence, the petitioner was aged 50 years, and hence his father could be presumed to be having an age more than 70 years and therefore, it could be presumed without difficulty that the petitioner would have been looking after and managing the library from where the obscene books were seized. With regard to the above conclusion of the trial court, it has to be stated that mere assumptions could never be a substitute for the solid proof required for fastening the accused with the criminal liability attributed against him. As far as the present case is concerned, the trial court is seen to have resorted to surmises and conjectures to conclude that the person by name Subrahmania Iyer mentioned in Ext.P6 is the father of the petitioner, and that since the above Subrahmania Iyer might be aged more than 70 years, the petitioner herein would have been conducting the above library as its proprietor.

It is pertinent to note that, when the petitioner was examined under Section 313 Cr.P.C., no questions were put as to his relationship with the Subrahmanya Iyer referred in Ext.P6. Nor had the learned Magistrate tried to ascertain the response of the petitioner by putting a suggestion that due to the old age of the abovesaid Subrahmanya Iyer, he has been conducting the library from where the objectionable books were seized. It is without following the above requirement of law that the trial court arrived at the assumption that the petitioner is the owner and proprietor of the library from where the objectionable books were seized. The appellate court did not advert to the above aspect, and instead, followed the conclusion arrived at by the learned Magistrate on the basis of the presumption that the petitioner is the son of the abovesaid Subrahmanya Iyer, and that he has been looking after and managing the said library. The findings of the trial court and appellate court in the above regard are patently illegal and improper.

It is sine qua non in a prosecution for the offence under Section 292(2)(a) to establish the possession, sale, letting, hiring or distribution of any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object by the accused. This Court, in Konnadan Abdul Gafoor v. State of Kerala [2016 (3) KHC 478] has observed in paragraph 10 of the said decision as follows :

"10. However, while considering the offence under S.292(2)(a), the prosecution has to prove that the accused sold, distributed and publicly exhibited the obscene materials. Simply certain CDs were seized from a shop on the basis of information, it cannot be taken for granted that the revision petitioner was guilty of such crime. It is the primary responsibility of the prosecution to prove that the accused was in possession of the shop and the seized articles are obscene articles. In a case for offence under S.292 of the IPC, prosecution has to prove that the accused sells, let to hire, distribute, 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 his possession any obscene book, pamphlet, paper drawing, painting, presentation or figure or any other obscene object whatsoever as alleged by the prosecution. There must be direct evidence with regard to the possession or sale of the obscene books or articles. There is no presumption with regard to possession, mere fact that some books were seized from a particular shop by a Police Officer. There may be exceptional cases, where the rule of presumption applies. In such cases, the proved facts and circumstances may speak for themselves and Court may be justified in reaching a conclusion in the light of available evidence.”

As far as the present case is concerned, the prosecution had miserably failed to bring forth the necessary evidence to establish that the petitioner was having ownership, possession or dominion over the building from where the objectionable books were seized. The trial court as well as the appellate court failed to take note of the said fatal drawback of the prosecution.

As regards the second challenge raised by the petitioner, it has to be stated that the only evidence pertaining to the obscene contents of the books seized (MO2 series) is a casual statement of PW2, the Sub-Inspector of Police who conducted the search, that the names of the books and the naked pictures contained in it would arouse sexual inspiration. However, PW2 has not at all explained the above statement in the evidence tendered by him. It is not possible to take into account the above evidence of PW2 as proof of the contents of MO2 series books, in order to attract the element of obscenity envisaged under Section 292(2)(a) of I.P.C.

The learned Magistrate came to the conclusion of the obscenity contained in MO2 series by perusing the above books. There is absolutely nothing wrong on the part of the trial court in observing the contents of MO2 series. However, the opinion gathered on the above score alone cannot be the basis for a conviction. This is because of the reason that the accused would be deprived of his valuable right of confrontation by cross-examination in respect of the opinion gathered by the trial court by observing the objectionable books on its own accord. In the decision of this Court in Davood v. State of Kerala [2023 Live Law (Ker.) 541], this Court has observed in paragraph 24 as follows :

“24. The prosecution having failed to state anything on the contents in the books and no incriminating circumstances being put to the accused under Section 313 Cr.P.C., the action of the courts below in scrolling through the books and then concluding that they are obscene is erroneous and unjustifiable. The action of the courts below has caused prejudice to the accused, because he has been denied an opportunity to explain the exercise carried out by the courts below. Hence, this Court is of the view, there is a total failure of justice in the courts below holding that the books are obscene and, therefore, the accused is guilty of committing the offence. Accordingly, I answer point No. (1) against the prosecution.”

The same scenario is there in the instant case wherein the learned Chief Judicial Magistrate embarked upon the task of ascertaining the obscenity of MO2 series books by observing the same on its own accord. As already stated above, the course adopted by the trial Magistrate in the above regard does not suffer from any illegality or impropriety, but in the absence of any other evidence pointing to the obscene contents of MO2 series books, the conviction of the petitioner for the commission of offence under Section 292(2)(a) I.P.C., is apparently improper.

The contention of the revision petitioner about the delay of two days in forwarding the F.I.R and search memo to the learned Magistrate is also substantiated by the records of this case. The delay in the above regard is not seen explained by the prosecution. Taking into account the shortcomings of the prosecution case discussed in the forgoing paragraphs, the unexplained delay of two days in submitting the F.I.R and search memo before the learned Magistrate assumes some significance.

Having regard to the apparent anomalies of the prosecution evidence which I have dealt with above, it has to be stated that the courts below went wrong in resorting to conviction of the petitioner under Section 292(2)(a) I.P.C. and imposing sentence upon him for the said offence. Therefore, the conviction and sentence of the petitioner for the commission of offence under Section 292(2)(a) I.P.C are liable to be set aside.

In the result, the revision stands allowed as follows :

(i) The findings of the courts below in the impugned judgments convicting and sentencing the petitioner under Section 292(2)(a) I.P.C are hereby set aside.

(ii) The petitioner stands acquitted of the aforesaid offence.