IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 571 of 2002(A) -------------------------------------- CRA.200/2001 of SESSIONS COURT, THRISSUR CC.219/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED : ----------------------------------------------------- P.I.GEORGE,S/O.P.V.ITTIKKURU, PUTHUR HOUSE,ASSISI NAGAR,PULLAZHI,THRISSUR DISTRICT. BY ADV. SRI.O.D.SIVADAS RESPONDENT/RESPONDENT/COMPLAINANT : ------------------------------------------------------- STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, BY PUBLIC PROSECUTOR KUNNAMKULAM (CRIME NO.380/96) PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ CRL. R.P.No. 571 of 2002 ------------------------------ Dated this the 14th day of October, 2008 O R D E R Revision petitioner along with two others was charge sheeted for offence punishable under Section 292(2)(a) of the Penal Code and Section 7(1)(b) of Cinematograph Act for alleged interpolation of film after it obtained certificate from the sensor board, incorporating obscene scenes and exhibiting it in a theatre at Kunnamkulam on 16/10/1996 at about 7.45 P.M. Third accused died during the pendency of case in the trial court. Revision petitioner and A2 faced trial, were found guilty, convicted and sentenced to undergo imprisonment for various periods. They preferred appeal before learned Sessions Judge. Second accused was acquitted for want of evidence to connect him with the theatre or exhibition of the film in question. Conviction and sentence of revision petitioner were confirmed. Hence this revision. 2. Heard both sides. Revision petitioner filed Criminal Miscellaneous Application No.9893 of 1998 in this revision to receive additional evidence and produced photocopy of certain documents. That application was heard along with the revision. CRL. R.P. No. 571/ 2002 2 3. It is contented by learned counsel for revision petitioner that there is no reliable evidence to show that revision petitioner was arrested from the theatre and at any rate, it not show that he was the operator during the relevant time. According to the learned counsel, the documents produced would show that another person was the operator in the theatre during the relevant time and that revision petitioner then was working in another private establishment. It is also contented by learned counsel that the court below went wrong in drawing presumption against the revision petitioner for failure to produce documents. 4. Case is that PW5, Circle Inspector and party on getting information about the exhibition of obscene film in the theater reached that place on 16/10/96 at about 7.45 P.M. and found the film by name “secret of married life” being exhibited. That film, according to the prosecution contained obscenity. PW5 is said to have arrested revision petitioner, operator in the theatre at the spot along with second accused and seized the film. The film was later viewed by PW8, Tahsildar who issued Exhibit P5, certificate stating that there is CRL. R.P. No. 571/ 2002 3 interpolation and that obscence scenes are incorporated after the film got certification from the Censor Board. PW1 is an attestator in the search list prepared by PW5. PWs 2, 4 and 5 gave evidence regarding the alleged seizure. PW3 is the owner of property where the theatre is situated. He claimed that he had leased that property to one Mary Ittiara from whom the third accused took the building for exhibition of film. Exhibit P4 is the license in favour of the third accused. PW 6 is the secretary of the local authority who issued Exhibit P4. M.O 1 series are the films. 5. Contention of learned counsel is that revision petitioner was arrested from elsewhere and not from the theatre. PW2, constable who is said to have accompanied PW5 and others denied that suggestion. As per the evidence of PWs 2,4 and 5 and the report attached to Exhibit P3, PW5 arrested revision petitioner from the theatre itself as he was the operator. It is also the version of PW5 that as per his direction, revision petitioner had again operated the film to be viewed by PW5 and party. It is argued on behalf of the revision petitioner that the arrest memo and other documents relating to arrest CRL. R.P. No. 571/ 2002 4 were not produced in the trial court by the prosecution. Learned counsel contented that the documents produced in revision would show that revision petitioner was not employed as an operator of the theatre in question. But, these documents were not produced at the time of trial. Though, there is a contention that learned Sessions Judge was not inclined to give revision petitioner an opportunity to adduce further evidence, it is not the case of the revision petitioner that these documents were produced in the appellate court. Without examining the persons concerned, these documents cannot also be received in evidence. 6. It is seen from the statement of the revision petitioner recorded by learned magistrate under Section 313 of the Code of Criminal Procedure that explanation given by the revision petitioner to the circumstances appearing against him in evidence are not recorded. Only at the end of questioning as to whether revision petitioner has anything to say further in the matter, that his explanation is recorded. This is certainly illegal since the object of Section 313 of the Code of Criminal Procedure is to give the accused an opportunity to explain the CRL. R.P. No. 571/ 2002 5 circumstances appearing against him in the evidence and binding authorities on the point say that such evidence which was not put to the accused and his explanation sought, cannot be used against him. In the above circumstances and in the light of evidence given by PWs2, 4 and 5 regarding the alleged arrest of revision petitioner at the sport and since revision petitioner is also seeking an opportunity to adduce further evidence which according to him will exonerate him from liability, I am inclined to interfere with the concurrent finding of facts entered by the courts below concerning the revision petitioner and remit the case to the trial court for fresh disposal after questioning the revision petitioner under Section 313 of the Criminal Procedure Code afresh. Since the matter is being remitted to the trial court, revision petitioner will certainly get an opportunity to recall any of the prosecution witness already examined and further examine them. He will also get opportunity to adduce evidence on his side if he so choses. Learned Magistrate shall expedite the trial and disposal of the case since the case is of the year 1998. This revision petition is allowed in the following lines. CRL. R.P. No. 571/ 2002 6 1. Conviction and sentence imposed on the revision petitioner are set aside. 2. Case is remitted to the court of Judicial Magistrate of First Class, Kunnamkulam for fresh disposal in the light of the observations made above. 3. Revision petitioner shall appear in the trial court on 1/12/2008 . Bail bond is cancelled. Criminal Miscellaneous Petition No.3654 of 2002 shall stand dismissed. THOMAS P. JOSEPH, JUDGE scm