appln 2809-10 & 4 wp.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2809 OF 2010 Vinay Kumar & Ors .. Applicants Vs The State of Maharashtra .. Respondent WITH CRIMINAL WRIT PETITION NO. 1577 OF 2010 Chandrakant Mansaram More .. Petitioner Vs The State of Maharashtra .. Respondent WITH CRIMINAL WRIT PETITION NO. 1578 OF 2010 Ajaykumar Shanmughan .. Petitioner Vs The State of Maharashtra .. Respondent WITH CRIMINAL WRIT PETITION NO. 1579 OF 2010 Sabeel Karunan .. Petitioner Vs The State of Maharashtra .. Respondent 1 appln 2809-10 & 4 wp.doc WITH CRIMINAL WRIT PETITION NO. 1580 OF 2010 Shankarsan Krishnu Munda .. Petitioner Vs The State of Maharashtra .. Respondent Mr. Adhik Shirodkar i/b Mr. Rajendra Shirodkar for the Applicant in Cri. Application No. 2809 of 2010 Mr. Samir A. Vaidya for the Petitioners in Writ Petition Nos. 1577 of 2010, 1578 of 2010, 1579 of 2010 and 1580 of 2010 Mr. S.A. Shaikh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J RESERVED ON : 29th OCTOBER 2010 PRONOUNCED ON : 24th NOVEMBER, 2010 AT 2.40 P.M. IN CHAMBER P.C.: 1. Heard learned counsel for the applicant/petitioners - original accused and learned APP for the State. 2. The applicant/petitioners are seeking quashing of C.R. No. 25 of 2008 of Lonavala Shahar Police Station and the proceedings relating thereto being RCC No. 483 of 2008 which is pending before the learned JMFC, Vadgaon, Maval, Lonavala. 3. Learned counsel for the applicant/petitioners stated that at present, they are only seeking quashing of offence under Section 292 of IPC and they are seeking liberty to 2 appln 2809-10 & 4 wp.doc prefer a separate petition for quashing of the offence under the Bombay Prohibition Act. Liberty as prayed for is granted. Thus, these petitions/application are being considered only in relation to the prayer for quashing of offence under Section 292 of IPC. 4. The brief facts of the case may be stated as under: On 26.08.2008, information was received at Lonavala Shahar Police Station that about 25 men and 10 to 12 women had gathered at Taj Cottage at Frichhly Hill. These people were intoxicated and they were watching obscene film and dancing and the men were throwing notes on the women, hence, the police along with panchas went to the spot. On entering the bungalow, they saw that in one room, some men and women were dancing in an obscene manner and some of the other men and women were watching obscene film on the laptop. In all, they found about 28 men and 11 women in the bungalow. Hence, all the persons in the bungalow came to be charged under Section 292 of IPC and Section 65 (c) and 82 of the Bombay Prohibition Act. 5. Learned counsel for the applicant/petitioners submitted that there was no public exhibition and whatever activities 3 appln 2809-10 & 4 wp.doc took place at the bungalow were for private viewing of the persons who were in the bungalow at the relevant time. He further submitted that none of the accused were selling or letting or hiring or distributing or publicly exhibiting or circulating the obscene film. It is 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 a private place on personal computer does not constitute an offence punishable under Section 292 of IPC. 6. In reply, the learned APP submitted that the said bungalow is a lodge and as such it is a public place, hence, it can be said that the accused persons were publicly exhibiting the obscene film. To support this contention, the learned APP placed reliance on the statement of Laxman, who was working as a gardener in the bungalow. The gardener has stated that there are nine rooms in the bungalow. The said rooms are given on rent and the business in relation to renting the rooms is looked into by one Shafi. On 26.08.2008, he was informed that there was a birthday party in the bungalow and about 10 to 12 people were coming for the birthday party. In turn, learned counsel for the applicant/petitioners drew my attention to the statement of another witness i.e Mr. 4 appln 2809-10 & 4 wp.doc Mahammadshafi Bhati. Mr. Bhati has stated that on 22.08.2008. he had purchased the said bungalow from Ajijbhai Merchant. The possession of the said bungalow was handed over about 1 1/2 months to 2 months prior to the sale for repairing of property and for care taking purpose. They had appointed one Laxman to work as a gardener in the said bungalow. He has specifically stated that he had not instructed the care taker Mahammadshafi Khan to give the bungalow on rent. He has further stated that on 26.08.2008, Mahammadshafi Khan had not spoken to him about giving the bungalow on rent and he was not aware of any party in the said bungalow on 27.08.2008. After making inquiries, he learnt that on request of an old customer of Mohammadshafi Khan, Mohammadshafi Khan had given some rooms in the bungalow to the friends of his old customer. Thus, the statement of the witness of the prosecution shows that the bungalow was not in fact a lodge as contended by the learned APP but it was a private bungalow. Even otherwise, it is not the case of the prosecution that anyone from the public could walk into the bungalow at any point of time. As such, the spot where the activities took place could not be said to be a public place, hence, it cannot be said that there was any public exhibition of obscene films in the bungalow. 5 appln 2809-10 & 4 wp.doc 7. The learned counsel for the petitioners/applicant vehemently contended that even assuming that there was a cassette of obscene film, the petitioners cannot be charged for the offence under Section 292 of IPC as they had not kept the same in the house for sale, hire, distribution, public exhibition or circulation whereupon the learned APP submitted 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. 8. In view of the arguments addressed by the learned counsel for both sides, the short question that arises for consideration is : Whether private viewing of obscene film constitutes an offence punishable under Section 292 of IPC? 9. Before answering the question, it would be useful to excerpt Section 292 of IPC for immediate reference, which reads as under: " 292. Sale, etc., of obscene books, etc - [(1) For the purpose of sub-section (2), 1 book, pamphlet, paper, 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 6 appln 2809-10 & 4 wp.doc as a whole, such as to tend to deprave and corrupt persons 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 his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatever, 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 7 appln 2809-10 & 4 wp.doc 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 extent 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 bonafide 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 purposes. 10. Here, I am only concerned with sub-Section 2(a) of Section 292. It is not the prosecution case that sub-Section 8 appln 2809-10 & 4 wp.doc (b),(c), (d) or (e) are attracted in the present case. A reading of clause (a) of sub-section (2) makes it clear that offence is committed if either someone sells, lets to hire, distributes, publicly exhibits, or in any manner puts into circulation, or he for purpose of sale, hire, distribution, public exhibition or putting in circulation, makes, produces or keeps in possession any obscene book, pamphlet,paper, drawing, painting, representation or figure or any other obscene object. Simpliciter viewing of an obscene object is not an offence under clause (a). It becomes an offence only when someone has in possession such object for the purposes of sale, hire, distribution, publicly exhibiting or putting into circulation. Thus, even assuming that there was a cassette of obscene film or that it was in the computer and was on the screen at the time the raiding party reached the bungalow, in my opinion, the petitioners cannot be charged under Section 292 of IPC. 11. In the instant case, it is not the allegation of the prosecution that the petitioners were found selling, hiring, distributing or putting into circulation the cassette of obscene film. It appears from the contention of the learned APP that it is their case that the accused were publicly exhibiting the film. This contention cannot be accepted because the bungalow cannot be said to be a public place, 9 appln 2809-10 & 4 wp.doc especially as no member of the public could freely walk into the bungalow. For the second part of clause (a) of sub- Section 2, the prosecution has to show that the obscene material was made, produced or kept in possession for the purpose of sale, hire, distribution, public exhibition or circulation. In other words, the possession of the obscene object is punishable under Section 292 of IPC only if the possession is for the purpose of sale, hire, distribution public exhibition or circulation. If the obscene object is kept in a house for private viewing and is not for sale, hire, public exhibition or circulation, the accused cannot be charged under Section 292 IPC. 12. Identical question arose before the Madras High Court in the case of V. Sundarrajan Vs State of Madras (Cri.P.C. No. 376 of 1978) decided on 28.11.1979 which was a case under Section 292-A of IPC. Section 292-A is the State Amendment in Tamil Nadu. Clause (b) of Section 292-A, IPC is more or less same as clause (a) of sub-sec. (2) of Section 292, IPC. The learned Judge of the Madras High Court 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 same was for selling or letting for hire. 10 appln 2809-10 & 4 wp.doc 13. Thus, the Madras High Court in V. Sundarrajan (Supra) 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. 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 referred Sundarrajan's case was followed by the Rajasthan High Court in Jagdish Chavla (1999 Cri. L.J. 2562 ). In Jagdish Chavla's case, it was alleged that on 17.08.1993, the Circle Inspector received some information and he raided a house situated in Jawahar Nagar, Sri. Ganganagar, belonging to Charanjit at 5.30 p.m, and noticed that four persons including one lady, were viewing obscene film on the television with the help of VCR. He,therefore, seized the cassette, television set and the VCR and registered a case under Section 292 of IPC. In this decision, the point arose for consideration whether possession of the obscene object is punishable under Section 292 of IPC. In the said decision, it was held that if the possession is for the purpose of sale, hire, distribution, public exhibition or circulation, offence under Section 292 is made out but 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 Section 292 of IPC. 11 appln 2809-10 & 4 wp.doc 14. It is not the case of prosecution that the accused were possessing the obscene films for the purpose of sale, hiring, distributing or circulating as mentioned in clause (a) of sub-section (2) of Section 292 of IPC. I have already observed that the act of the accused of privately viewing the obscene film on the laptop in the bungalow does not amount to public exhibition. Therefore, the act of the accused of privately viewing the obscene film does not constitute an offence under Section 292 of IPC. Clause (a) of sub-sec.(2) of Section 292 of IPC makes it very clear that without proving the purpose of possession mentioned in the clause, a person cannot be convicted for the offence. As far as the aspect of obscene dance by some people in the bungalow is concerned, the said dance was not for the purpose of viewing by the general public. The people were dancing among themselves. The same was not for public exhibition. In such case, Section 292 cannot be attracted. That being so, the continuance of the proceedings against the petitioners shall only be abuse of the process of the Court. It is, therefore, deemed proper to quash the charge under Section 292 of IPC against the present petitioners/applicant. 15. Consequently, the petitions succeed. The charge against the petitioners/applicant under Section 292, IPC is 12 appln 2809-10 & 4 wp.doc quashed. All the application / petitions disposed of in above terms. [SMT. V.K. TAHILRAMANI, J.] 13