Mohan Gupta vs State (Delhi Administration)
1990 Latest Caselaw 115 Del

JUDGMENT

P.K. Bahri, J.

(1) This revision petition has been brought for quashment of the proceedings pending against the petitioner on trie basis of F.I.R. No. 446186 of Police Station Kalkaji for an offence punishable under Section 292 of the Indian Penal Code.

(2) The case of the prosecution, in brief, is that during the course of investigation of case F.I.R. No. 444/86 under Sections 342, 376, 377 & 506 read with Section 34 of the Indian Penal Code, the room in the residential house of the petitioner was searched and out of six video cassettes, lying there, one video cassette of Vhs 180 was found to contain obscene material and thus, was seized and a case was registered under Section 292 read with Section 114 of the Indian Penal Code. It was not mentioned in the F.I.R. that the petitioner was having in his possession the aforesaid obscene video cassette for purposes of sale, hire, distribution, public exhibition or circulation. Still the case was registered and the petitioner was put up for trial. There was no evidence collected even during the investigation by the prosecution to prove that in fact, the petitioner was having in his possession the aforesaid video cassette for any of the said purposes mentioned above. However, the learned Magistrate thought it fit to frame the charge against the petitioner and observed that at the stage of framing of charge it is difficult to say without recording evidence whether such video cassette was kept by the accused for his private use or for any of the aforesaid purposes.

(3) The charge has to be framed by the Magistrate keeping in view the police report submitted under Section 173 of the Code of Criminal Procedure containing the necessary particulars including the statements of the witnesses recorded under Section 161 of the said Code and any documents taken into possession for placing reliance for bringing home the offence to the accused. In absence of any evidence being relied upon by the prosecution in the police report showing that petitioner was having in his possession the aforesaid obscene video cassette for any of the purposes like sale, hire, distribution, public exhibition or circulation, the Magistrate was not legally right in framing the charge against the petitioner.

(4) Section 292(1) of the Indian Penal Code describes the offence of obscenity while Section 292(2)(a) deals with the point now arising in this case before me. The said Section is reproduced below:

"292(1)........................

(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 possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or

(B)...............

(C)...............

(D)...............

(E)..............."

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 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 five years, and also with fine which may extend to five thousand rupees."

This Section can be split up into two parts. A person commits the offence if he sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation any such obscene material. This is the first part of the aforesaid section making the person guilty of offence of committing obscenity. The second part of the section makes it clear that if for purposes of sale, hire, distribution, public exhibition or circulation, a person makes, produces, or has in possession any obscene book etc. then he commits the offence of obscenity. So, the mere reading of the Section makes it clear that mere possession of any obscene material is nut made an offence under the said Section. It has to be alleged and proved that the person who is in possession of any obscene material is having the same for purposes of sale, hire, distribution, public exhibition or circulation.

(5) I may refer to the opinion of the author Dr. Sir H. S. Gaur (Penal Law of India, 10th Edition, Page 2147, Note 13) who has also analysed the Section in the similar manner. In Jose v. State of Kerala, 1988(2) Crimes 195(1), it appears that 900 copies of obscene books were found in possession of the accused although there was no evidence to show that he has those books for any of the said purposes, still the High Court drew the inference from the large quantity of the obscene books being in possession of the accused that they must have been kept by the accused for any of the said purposes. In the present case, there is only one video cassette containing the obscene material which was found at the residential premises of the petitioner and thus, no inference can be drawn from this fact alone that the petitioner was having in his possession the aforesaid video cassette for any of the said purposes enumerated above.

(6) I allow the petition and quash the prosecution of the petitioner, as prayed.