IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Crl.Rev.Pet.No. 1482 of 2002(B) ------------------------------- CRA.279/1997 of ADDL.SESSIONS COURT(ADHOC-I), THALASSERY CC.453/1992 of JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY .................... REVN. PETITIONER(S): APPELLANT /1ST ACCUSED ------------------------------------------- AYADATHIL CHAMBLON SURESH, S/O. SHANJU, PADMA NIVAS, KODIYERI AMSOM, ILLATHUMTHAZHA, P.O. THIRUVANGAD, THALASSERY BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): RESPONDENT/COMPLAINANT AND STATE ----------------------------------------------- 1. STATION HOUSE OFFICER, THALASSERY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SHRI AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1482 of 2002 -------------------------------------- Dated this the 13th day of November, 2008. ORDER Heard both sides. 2. Revision petitioner along with second accused was charge sheeted by the SHO, Thalassery in Crime No.189 of 1991 for offences punishable under Section 292(1)(2)(a) read with Section 34 of the Indian Penal Code (for short, ‘the Code’) and Section 7(1) of the Cinematographic Act (for short, ‘the Act’). 3. Case is that on 17.3.1991 at about 11.30 p.m. PW3 and party found the revision petitioner and second accused exhibiting an English film in the theater of which second accused was alleged to be the manager and which contained obscene scenes. It is further alleged that at the instance of revision petitioner and second accused, the film was interpolated to incorporate such obscene scenes. Revision petitioner and second accused faced trial for the said offences in the court of learned Judicial First Class Magistrate, Thalassery. Second accused was found not guilty for want of evidence that he is the manager of the theater in question and was therefore, acquitted. Revision petitioner (first accused) was found guilty, convicted and sentenced to undergo imprisonment. He preferred an appeal but the learned Additional Sessions Jude (Adhoc-I) Thalassery in confirmation of the conviction and sentence dismissed the appeal. Aggrieved, revision petitioner has preferred this revision. Crl.R.P.No.1482/2002 2 4. It is contended by learned counsel that there is no sufficient evidence to show that revision petitioner was engaged as operator in the theater in question at the relevant time. It is also argued by the learned counsel that at any rate, learned Magistrate went wrong in admitting Ext.P8 in evidence as the Special Executive Magistrate who has prepared Ext.P8, report was not examined. According to learned counsel, non-examination of the Special Executive Magistrate is fatal to the prosecution. 5. Though prosecution examined PW1 who is an independent witness to the alleged incident, he did not support the prosecution. PWs 1, 3 and 4 however, gave evidence regarding the alleged detection of the offence. According to PWs 1 and 3, the film in question contained obscene scenes. Ext.P1 is the search list for seizure of the films (MOs 1 to 4). 6. According to the prosecution the film after it got ‘U’ certificate from the Central Board of Film Certification was interpolated at the instance of the revision petitioner and others incorporating obscene scenes. Ext.P8 is pressed into service to prove that. But, it is seen that Ext.P8 was proved through PW8, the Sub Inspector who conducted investigation of the case. Though it is not shown that marking of Ext.P8 through PW8 was objected, so far the Special Executive Magistrate who is said to have prepared Ext.P8 is not a person coming under Section 293 of the Code of Criminal Procedure, report should or could not have been marked in the way it was done without examining the Crl.R.P.No.1482/2002 3 Special Executive Magistrate concerned. There is weight in the contention of the learned counsel for revision petitioner that without examining the Special Executive Magistrate Ext.P8 should not have been marked. If that be so, no reliance can be placed on Ext.P8. If the film in question has been given certification under the provisions of the Act, then in the absence of evidence regarding interpolation as alleged by the prosecution, it may not be possible to say that revision petitioner has committed offence as alleged. Therefore, proving of Ext.P8 in the proper manner is crucial in this case. But I am not inclined to accept the contention of the learned counsel that because Ext.P8 is not proved in proper manner, that should end in acquittal of the revision petitioner. Giving an opportunity to the prosecution to examine the Executive Magistrate cannot be said to be filling up the lacuna since 'lacuna' meant the inherent wedge in prosecution matrix. Since I am inclined to send back the case to the learned Magistrate for fresh consideration after properly proving Ext.P8, I am not expressing any opinion on the contention of the learned counsel that evidence on record is insufficient to show that revision petitioner was operating the film in question at the relevant time. Resultantly, revision is allowed in the following lines:- Conviction and sentence on the revision petitioner are set aside and the case is remitted to the court of learned Judicial First Class Magistrate, Thalassery for fresh disposal in the light of the observations made above. It will Crl.R.P.No.1482/2002 4 be open to the prosecution to prove Ext.P8 in the manner provided under law. Revision petitioner shall surrender in the trial court on 29.12.2008. Bail bond is cancelled. Crl.M.P.No.8243 of 2002 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.1482/2002 5 Thomas P.Joseph, J. Crl.R.P.No.1482 of 2002 ORDER 13th November, 2008