IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 Crl.Rev.Pet.No. 1769 of 2011() -------------------------------------------- CRA.79/2010 OF ADDITIONAL SESSIONS COURT (FAST TRACK-II), ALAPPUZHA CC.777/2006 OF JUDL. MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------- SHAJI @ SHAJAHAN, AGED 38 YEARS S/O.ABDUL KHADAR, SHAJI SADANAM, PUTHEN VEEDU, CHUNGAM WARD, ALAPPUZHA. BY ADV. SRI.P.KRISHNA KUMAR (ALAPPUZHA), SRI.SUNIL J.CHAKKALACKAL. RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------- THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.T.R. RAJESH. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1769 OF 2011 ----------------------------------------- Dated this the 17th day of November 2011 ORDER Revision is by the accused in C.C No.777/2006 on the file of the Judicial First Class Magistrate-I, Alappuzha. He was prosecuted for the offences punishable under Sections 292(2)(a) and 293 of the Indian Penal Code, on a report filed by the Sub Inspector of Police, Alappuzha, North Police Station. Accused had pleaded not guilty. The learned magistrate, after trial, found him guilty of the offence under Section 292(2)(a) IPC and not guilty of the offence under Section 293 IPC. Convicting him for the offence under Section 292(2)(a) IPC he was sentenced to undergo simple imprisonment for one year and pay a fine of `.1,000/- with default term of simple imprisonment for two months. He was acquitted of the offence under Section 293 IPC. Appeal preferred by the accused challenging his conviction was turned down by the learned sessions judge. Sentence imposed was however modified reducing it to simple imprisonment for a period of six months, retaining the fine imposed with the default term thereof. Feeling aggrieved, the accused has preferred this revision. Crl.R.P No.1769 OF 2011 2 2. I heard the learned counsel for the petitioner and also the learned public prosecutor. The learned counsel for the accused contended that both the courts below have gone wrong in appreciating the materials tendered in the case in as much as no definite finding has been entered over the possession of the petty shop in which the obscene books are alleged to have been exhibited with the accused, or, of any act done by him in the sale of such obscene books, as alleged by the prosecution. Since no finding has been entered on the above vital aspects by the two courts below, the conviction of the accused relying upon the evidence of the police officers, PW1, PW2 and PW4, according to the counsel, is unsustainable. No material, whatsoever, was produced by the prosecution to prove the ownership or possession of the petty shop in which the obscene books were seen, is the further submission of the counsel to impeach the conviction concurrently rendered against him by the courts below. Per contra, the public prosecutor, submitted that there is no infirmity, whatsoever, in the conviction concurrently rendered against the petitioner by the two inferior court warranting interference of this court in exercise of its revisional jurisdiction. Conviction of the accused is founded on unimpeachable legal evidence and it requires only to be affirmed, is the submission of the public prosecutor. Crl.R.P No.1769 OF 2011 3 3. Supervisory jurisdiction vested with this court as under its powers of revision, no doubt, is intended to secure the ends of justice to correct material infirmity, if any, in the orders of inferior court so that it does not result in miscarriage of justice. Revisional jurisdiction can be exercised only within the narrow compass permitted by law. A reappreciation of the evidence to test the correctness, legality and propriety of a finding entered by the inferior court is permissible only where it is shown that the finding rendered by such court is perverse or it could not have been formed on the materials produced in the case. Even if a different view, perhaps, a better view than what was arrived by the inferior court on the materials placed could be formed, that also; but that would not empower the revisional court to supplement its view in place of the view taken by the inferior court, if such a view also could be formed on the materials. So much so, the challenges canvassed by the counsel to assail the conviction concurrently rendered against the accused necessarily has to be examined within the limited scope that could be exercised in the revisional jurisdiction. 4. The learned magistrate, who recorded the testimonies of PW1, PW2 and PW4, the police officers, found their evidence reliable, trustworthy and convincing to accept the prosecution case that the accused was found in active control of the petty shop where obscene Crl.R.P No.1769 OF 2011 4 books were exhibited. Merely because PW1, PW2 and PW4 are police officers, it cannot be stated that their evidence cannot be acted upon without corroboration from independent source. The accused has no case nor even any suggestion, that the police officers have got any animosity towards him to perjure against him in a court of law to implicate him falsely in the case. Some suggestive questions were put forth to PW4 that near the petty shop in which obscene books were exhibited for sale is situate and the police party reached there in view of some labour disputes and then the accused present at that spot was taken into custody. The arguments raised by the counsel that possession or sale of the obscene books, relating to or connected with the accused is necessary for his conviction under Section 292(2)(a) of the Penal Code, is not correct. What need be shown is that he is responsible or he has control over the obscene books exhibited at the place. There is no dispute that MO1 to MO46, the materials seized and produced, are obscene books as covered by Section 292(2)(a) of the penal code. The arrest of the accused from the spot with the material objects as spoken to by PW2 and PW3, in fact, was not challenged when they were cross examined, but, only when PW4, the investigating officer was examined, some suggestive questions were put that he was arrested at a place beside a bar close to the Crl.R.P No.1769 OF 2011 5 scene of crime. That version remained only as a suggestion without any more. In the circumstance, I find, the conviction entered against the accused by the courts below concurrently, which is supported by umimpeachable legal evidence, not liable to be interfered with in revision. So far as the sentence imposed also I find no interference is called for as it is only just and reasonable. Revision is dismissed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge