IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 Crl.Rev.Pet.No. 1428 of 2003(D) ------------------------------- CRA.371/2001 of III ADDL. SESSIONS COURT, THRISSUR CC.405/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- SASI, S/O. KRISHNAN, KALARIKKAL VEETTIL, CHEMMAMTHATTA VILLAGE, PUTHUSSERY DESOM, TALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO. 6154/03 IN CRL.R.P.1428/03 DISMISSED 17/5/10 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1428 OF 2003 --------------------------------------------- Dated 17th May, 2010 O R D E R Is it necessary to send a cassette seized on the allegation that it contains obscene matters to the Tahsildar for getting a report before deciding the question whether an offence under Section 292(2) (a) of Indian Penal Code was committed. This is the question to be settled in this revision. 2. Facts are not complicated. On 1.2.2000 at about 4.30 p.m police party headed by Sub Inspector of Police, Vadkkekkad conducted a search in World Video Cassette shop in building No.VI/516 of Vadakkekkad Panchayath and in the presence of the petitioner seized six Video CRRP 1428/03 2 Cassettes after getting satisfied that they contain obscene matters. Petitioner was arrested and later released on bail on the same day. After completing the investigation charge was laid for the offence under Section 292(2)(a) of Indian Penal Code which was taken cognizance as C.C.405/2000 by Judicial First Class Magistrate, Kunnamkulam. Petitioner pleaded not guilty. Prosecution examined eight witnesses and marked five exhibits apart from identifying MO.1 series of obscene video cassettes. Learned Magistrate on the evidence found that petitioner was in possession of the said shop room as a building tenant and was conducting World Video shop and was in possession of MO.1 series of six video cassettes which are intended for circulation and petitioner thereby committed an offence CRRP 1428/03 3 under Section 292(2)(a) of Indian Penal Code. He was convicted and sentenced to rigorous imprisonment for one year. MO.1 series were confiscated and were directed to be destroyed. 3. Petitioner challenged conviction and sentence before Sessions court, Thrissur in Crl.A.371/2001. Learned Additional Sessions Judge on re-appreciation of evidence found that evidence of PW8 owner of the shop building proves that building was rented out to the petitioner, who is running the video cassette shop. From the evidence it was found that petitioner was in possession of MO.1 series of video cassettes. Learned Sessions Judge then found that the crucial question is whether MO.1 series contain obscene matters to attract an offence as alleged or not. CRRP 1428/03 4 Finding that MO.1 series were not sent to Taluk Tahsildar as provided by Government circular No.K.Dis.17699/91/LRE 2 dated 9/8/1991 and as directed by this court in official memorandum No.D1-57734/97 learned Sessions Judge found that in view of Government circular and official memorandum issued by this court observed that the practice of viewing the cassettes by the Magistrates are discontinued and the cassettes are to be sent to the Taluk Tahsildar and the question is to be decided only on getting a report from the Tahsildar. Finding that learned Magistrate has not personally seen the cassettes, learned Sessions Judge set aside the conviction and sentence and remanded the case to the learned Magistrate with a direction to refer MO.1 CRRP 1428/03 5 series to the Taluk Tahsildar for verification as directed in the Government circular and official memorandum issued by this court, referred earlier. 4. Revision is filed challenging the order of remand. Revision petitioner would contend that learned Sessions Judge did not properly consider the appeal. It is contended that official memorandum and the Government circular are to be followed only in cases where violation of provisions of Cinematograph Act is alleged and that is to detect whether there are any interpolations in the films after certification made by the Central Board of Film Certification. Question whether the cassettes are containing obscene matters or not, cannot be decided by the Tahsildar or for that purpose the cassettes CRRP 1428/03 6 are to be sent to the Tahsildar. It is contended that in view of law laid down by the Apex court in Ranjit D.Udeshi v. State of Maharashtra (AIR 1965 SC 881), Chandrakant Kalyandas Kakodkar v. State of Maharashtra and others (AIR 1970 SC 1390) and Samaresh Bose and another v. Amal Mitra and another (AIR 1986 SC 967), it is the duty of the court to decide whether a particular matter is obscene or not and as it was not done, learned Sessions Judge should not have remanded the case and should have acquitted the accused. It is contended that when there is no evidence on the side of the prosecution to prove that MO.1 vodeo cassettes were in the possession of the petitioner for the purpose of lending it out and there is no evidence to prove that it contains obscene matters, the CRRP 1428/03 7 order of remand is unwarranted and is to be quashed. 5. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 6. Learned counsel appearing for the petitioner vehemently argued that there is no evidence to prove that petitioner was in possession of the shop room, where World Video Casette shop was being conducted or that petitioner was conducting that video shop. It is pointed out that no seizure mahazar was prepared or produced and though Ext.P1 search list shows that it was attested by Sudheer an independent witness and Ext.P4 FI statement shows that the said witness was there in the shop for the purpose of obtaining video cassette on hire, he was not even CRRP 1428/03 8 cited as witness and courts below should not have accepted the evidence of the police officers to hold that petitioner was in possession of the shop room or was in possession of MO.1 series of video cassettes. It is therefore argued that on that ground alone the conviction is to be interfered. Learned counsel then argued that as declared by the Apex court in the decisions referred to earlier, it is for the court to satisfy himself that MO.1 video cassettes contain obscene matters and when it was not done, learned Sessions Judge should not have remanded the case to get a report from the Tahsildar. Learned counsel pointed out that Government circular referred to in the judgment of the appellate court as well as official memorandum are not applicable in CRRP 1428/03 9 respect of a case where it is alleged that video cassettes contain obscene matters and it is only applicable where there is an allegation that subsequent to obtaining certification from the film Censor Board, interpolations are made adding uncensored matters and therefore, the order of remand, to get a report from the Tahsildar, is illegal. 7. Though Learned counsel appearing for the petitioner vehemently argued that there is no evidence to prove that petitioner was in possession of MO.1 video cassettes or even possession of the shop, on the evidence I cannot agree. Evidence establish that PW8 is the owner of the shop building. Ext.P3 certificate issued from the Panchayat establishes that PW8 is the owner of the building. Evidence of PW8 establishes that the CRRP 1428/03 10 shop building from where video cassettes were seized, was rented out to the petitioner and he is running a video shop therein. True, apart from the oral evidence of PW8, no rent deed or rent receipt was produced. But if the lease is an oral lease and landlord is not in the habit of issuing rent receipts, failure to produce a rent deed or rent receipt is not at all fatal. There is no law or rule that shop building cannot be rented out on an oral lease. Though tenant is entitled to get a receipt for payment of rent from the landlord, who is not in the habit of issuing receipt and tenant is not insisting for getting rent receipts, failure to produce rent receipt is also not a ground to disbelieve the case of oral lease. Question is whether evidence of PW8 on that aspect CRRP 1428/03 11 is trustworthy and reliable. I had gone through the depositions of PW8 Kunhimuhammed. I find no reason to disbelieve the evidence of PW8 that he had rented out the building to the petitioner orally or that petitioner is running a video shop in the building, for the last five years prior to the date of his examination. No reason has even been suggested for PW8 to falsely allege that the room was rented out to the petitioner. It is to be borne in mind that when the police conducted search in the shop, petitioner was admittedly present. Even on the second day, when the scene mahazar was prepared petitioner was present in the shop, as is clear from the scene mahazar. It is not at all disputed at the time of evidence. When the entire evidence is properly appreciated, I find no CRRP 1428/03 12 reason to interfere with the findings of the courts below that the shop building belongs to PW8 and it was rented out to the petitioner and petitioner is conducting Video shop by name World Videos. Though the independent witness, who is an attesting witness to Ext.P1 and whose presence was mentioned in Ext.P4 FI statement was not examined, on the facts I find the said non examination is not at all fatal. Evidence establishes that petitioner was conducting the video cassette shop and police seized MO.1 series from the shop in his presence. Records also show that video cassette so seized were produced before the court without much delay and the property list shows that investigating officer has even furnished the sample of the seal in the property list. In CRRP 1428/03 13 such circumstances, on those findings no interference is warranted. 8. Learned Magistrate on the evidence found that MO.1 series contain obscene matters. Learned Sessions Judge did not consider that aspect and instead finding that learned Magistrate did not comply with the Government Circular as directed by the official memorandum remanded the case to the trial court. I find force in the submission of the learned counsel appearing for the petitioner that learned Sessions Judge grossly erred in relying on the Government Circular and the official memorandum issued by this court in respect of present case. 9. Government Circular No.K.Dis. 17699/91/LRE 2 dated 9/8/1991 shows that it was issued in view of a letter addressed by CRRP 1428/03 14 the Additional Regional Officer, Central Board of Film Certification, Thiruvananthapuram to the Secretary to Government, Revenue Department, Thiruvananthapuram expressing difficulty on account of sending films/video cassettes to the Central Board of Film Certification. Relevant portion of the circular reads. “In the letter first cited the Additional Regional Officer, Central Board of film Certification, Government of India, Thiruvananthapuram has requested the Government to nominate the Taluk Tahsildars in their capacity as Executive Magistrate to assist the Central Board of Film Certificate constituted under the Ministry of Information and Broadcasting to verify seized prints of Films/Video Cassetes when CRRP 1428/03 15 necessary. Government in their letter 2nd cited, has directed the Board to issue instructions to all Taluk Tahsildars in the matter. In the light of the above directions all Taluk Tahsildars are requested to undertake the work of verification of seized Films/Video Cassetes on specific requests made by Judicial Magistrates/Central Board of Film Certification. They will verify the seized films in comparison with the master video cassetes which will be sent to them by the Central Board of Film Certification and give a report to the concerned Judicial Magistrate regarding interpolations in the seized copies of films.” This court endorsed the circular to the Judicial First Class Magistrates of the State CRRP 1428/03 16 on the representation that on production of video cassette Judicial Magistrates quite often sent them to the Central Board and as a result police party from different districts are bringing seized prints of film certified, for verification report on interpolation. It was pointed out that in spite of the circular, police are still bringing seized prints to the Central Board of Film Certification. By the endorsement this court directed the Magistrates to comply with the circular. Later official memorandum No.D1- 57734/97 dated 15/12/1997 was issued by this court bringing attention of subordinate Judicial Officers to the Government Circular. Relevant portion of official memorandum reads. “It has now been brought to notice that in spite of the instructions in CRRP 1428/03 17 the circular, several judicial Magistrates are enven now sending police officers to the office of the Central Board of Film Certification with seized prints of Feature films/Video cassettes for verification and report. The Subordinate Judicial Officers are once again directed that they should strictly abide by the instructions in the Government circular dated 9/8/1991, failure of which, if reported hereafter, will be viewed seriously.” 10. It is absolutely clear from the Government Circular that direction to send films or video cassettes to the Taluk Tahsildars is only to verify the seized films in comparison with the master video CRRP 1428/03 18 cassettes which will be sent to them by the Central Board of Film Certification, for the purpose of giving a report to the concerned Magistrate regarding “interpolations in the seized copies of films”. They are not applicable in cases where the question is whether the video cassettes contain obscene matters or not. Official memorandum issued by this court is confined to the disputes whether there is interpolation or not in the video cassette or films and not to find out whether the contents of the cassettes are obscene or not. 11. As declared by the Apex court in Ranjit D.Udeshi v. State of Maharashtra (AIR 1965 SC 881), Chandrakant Kalyandas Kakodkar v. State of Maharashtra and others (AIR 1970 SC 1390) and Samaresh Bose and another v. Amal CRRP 1428/03 19 Mitra and another (AIR 1986 SC 967) it is for the concerned court to decide whether the ingredients of an offence under Section 292 of Indian Penal Code are established, on the facts of the case. Necessarily, it is for the learned Magistrate to consider whether contents of video cassette is obscene or not. It could be decided on the reliable evidence let in or by personally viewing the video cassettes. True, learned Magistrate has not viewed the video cassette and hence the primary evidence is not availed of by the court. Learned Sessions Judge in such circumstances, could have exercised the powers which the learned Magistrate had at the time of hearing the appeal. Learned Sessions Judge is definitely entitled to exercise those powers of learned Magistrate. When learned CRRP 1428/03 20 Sessions Judge did not consider either the evidence on that aspect and did not view the video cassette and instead direction was issued to the learned Magistrate to call for a report from the Tahsildar which is not warranted, the order of remand for that purpose can only be set aside. As the learned Sessions Judge did not dispose the appeal on merits, it is for the learned Sessions Judge to consider whether the contents of MO.1 series are obscene attracting an offence under Section 292. In the light of the decision of this court in Abdul Rasheed v. State of Kerala (2008 (3) KLT 150), learned Sessions Judge is to view MO.1 series of video cassettes and decide whether they contain obscene matters or not. If the learned Sessions Judge finds that there is no obscene CRRP 1428/03 21 matter, the conviction will not stand. Revision is disposed. Order of remand passed by the Additional Sessions Judge, Thrissur in Crl.A.371/2001 is set aside. Crl.A.371/2001 is remanded to Additional Sessions Judge, Thrissur for fresh disposal in accordance with the observation made earlier. Petitioner is directed to appear before the Additional Sessions Judge, Thrissur on 10/6/2010. Sent back records immediately. M.SASIDHARAN NAMBIAR, JUDGE. uj.