HON’BLE SRI JUSTICE B.CHANDRA KUMAR Crl.P. No. 2694 of 2009 DATED: 22.12.2011 Between: Mohd. Talib .. Petitioner/ A2 and 1. The State of A.P. .. Respondent O R D E R:- This Criminal Petition has been filed to quash the proceedings in C.C. No.839 of 2008 on the file of the Additional Judicial First Class Magistrate, Karimnagar. The petitioner herein is A2. As seen from the allegations made in the charge sheet on 28.06.2007, one N.Laxmirajam, Head Constable of Karimnagar II Town Police Station along with one Lachaiah, Constable went to the shop of A1 – Meer Arshad Ali. Then they sent a person to the said shop at 7.30 p.m. by giving a mobile phone to download the obscene pictures and after sometime, the said person came by downloading the obscene pictures in memory card inserted in the mobile phone. Then, the Head Constable raided the shop and got the computer opened and found obscene pictures of female persons. On enquiry, he came to know that A1 is running the shop and A2 to A5 were employed by A1. Then he sent a complaint to the police, based on which, the Sub-Inspector of Police registered a case in Cr.No.139 of 2007 for the offence punishable under Section 293 IPC and Section 6 of Indecent Representation of Women Act, 1986 (for short “the Act”). It is alleged that during the course of investigation, the Sub- Inspector of Police secured the presence of Head Constable - Laxmirajam, Constable – T.Madhukumar and rushed to Heena Mobile shop at 21:30 hours and apprehended four accused who were present in the shop and operating computer system, and they interrogated them. On interrogation, the accused disclosed their identity and the Sub-Inspector of Police drafted panchanama of the petitioner herein and recovered one C.P.U., monitor, key board, mouse and cell memory chip in which the obscene pictures were downloaded by A2 and its power cable in the presence of the same mediators under cover of panchanama. It is alleged that A1 is running the shop and A2 to A5 were working under the said shop and that they started downloading obscene picture through internet and selling the same to the young persons by reading the same into Compact Disks. Sri P.Sajan Kumar, learned counsel for the petitioner submitted that Section 293 IPC is not applicable in this case since there is no allegation that the petitioner herein, who is A2, was selling obscene objects to any person under the age of 20 years. The second submission is that Sections 3 and 4 of the Act is also not applicable since the same does not cover any offence of this nature and it is not given in Cyber Crime. The learned Additional Public Prosecutor submitted that since the material is seized from the petitioner after recording his confession statement, the proceedings cannot be quashed. The only point that arises for consideration is whether the proceedings are liable to be quashed. Section 293 IPC reads as follows: “Sale, etc., of obscene objects to young persons:- Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do, shall be punished (on first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend 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 seven years, and also with fine which may extend to five thousand rupees).” It is clear from the words used in the above Section that an offence under Section 293 IPC will be made out only in case where there is a sale, hire, distribution or exhibition or circulation of any obscene objects to any person under the age of 20 years. Since there is no allegation in the entire charge sheet that the petitioner involved in any sale, distribution, etc. to any person under the age of 20 years, it is clear that Section 293 IPC is not attractive. As far as the allegation whether the provisions of Sections 3 and 4 of the Act are concerned, Section 3 reads as follows: “No person shall publish or cause to be published or arrange or take part in the publication or exhibition of any advertisement which contains indecent representation of women in any form.” The main submission of the learned counsel for the petitioner is that Section 3 of the Act applies only in case when a person publishes or cause to be published or arrange, take part in the publication or exhibition of any advertisement which contain indecent representation of women in any form. Section 4 of the Act reads as follows: “No person shall produce or cause to be produced sale, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form” The learned counsel for the petitioner submits that as far as the computer, C.P.U. downloading of pictures, etc. through computer operating systems are concerned, since they are not covered under Section 4 of the Act. Whether they are covered by Section 4 of the Act or not, it is for the trial Court to decide the matter, but the fact remains that as far as the petitioner is concerned, it appears that he was present along with four other accused persons when the police raided the shop. The allegation is that A1 is running the shop and he employed other accused. The charge sheet allegations go to show that the Head Constable along with the Constable went there and sent a person to the shop at 07.30 P.M. by giving a mobile phone and memory chip to download the obscene pictures in the said shop. The charge sheet allegations go to show that after sometime, the said person came back after downloading the obscene pictures in the memory card inserted in the mobile phone. The name of the person sent by the Head Constable is not mentioned in the charge sheet nor is he shown as a witness. Probably, the police want to scream his name as informant. Further, the charge sheet allegations go to show that the Head Constable and the Constable raided the shop, opened and found obscene pictures of female persons in the computer, and on enquiry, they came to know that A2 to A5 were working in the shop and they were present in the shop. The charge sheet allegations further go to show that the Head Constable sent a complaint to the police, based on which, the Sub-Inspector of Police registered a case and at about 21:30 hours, they again raided the shop and alleged to have recorded the confession of petitioner - A2 and recovered CPU, monitor, key board, mouse, cell memory chip in which the obscene pictures downloaded by A2 were found. There is nothing on record to show that in whose possession and custody the memory chip and cell were there from 07.30 to 09.30 p.m. The petitioner is said to be an Engineering Student aged about 21 years. According to the learned counsel for the petitioner, as a customer, he went to the shop and he has nothing to do with A1. The allegation made by the police is that the petitioner was employed by A1 in the said shop. So, it is A1 who is doing the business. The person sent by the Head Constable is neither examined by the police nor shown his name. There is nothing on record to show that it is the petitioner who had downloaded the obscene pictures in the memory card of the cell sent by the Head Constable. Therefore, I am of the view that the proceedings cannot be continued against the petitioner-A2 and the same result in abuse of process of law. The case of A3 to A5 is also similar to the case of the petitioner. However, it is made clear that the proceedings may go on as far as A1 is concerned since it is alleged that he is the owner of the shop. Accordingly, this Criminal Petition is allowed. _______________________ B. CHANDRA KUMAR,J 22.12.2011 bcj