Kerala High Court
Jalal vs State Of Kerala on 22 February, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
SATURDAY, THE 22ND DAY OF FEBRUARY 2025 / 3RD PHALGUNA, 1946
CRL.REV.PET NO. 24 OF 2013
AGAINST THE JUDGMENT DATED 07.09.2012 IN Crl.APPEAL NO.359 OF
2011 OF SESSIONS COURT, KOTTAYAM ARISING OUT OF THE JUDGMENT DATED
24.08.2011 IN C.C. NO.15 OF 2009 OF JUDICIAL MAGISTRATE OF FIRST
CLASS, ERATTUPETTA
PETITIONER/APPELLANT/ACCUSED:
JALAL,
S/O.ABDUL SATHAR, PLATHOTTATHIL HOUSE,
VEYILKANAMPARA BHAGOM THEKKEKARA KARA,
ERATTUPETTA VILLAGE.
BY ADVS.
SRI.SHAJI THOMAS
SRI.BINU PAUL
SRI.T.V.VINU
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 018.
BY ADV.:
SRI. SANAL.P.RAJ - PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
22.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 24 OF 2013 -2-
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ORDER
The present criminal revision petition is preferred by the
accused impugning the judgment of Sessions Court, Kottayam in
Crl.Appeal.No.359 of 2011. The offences alleged against the
revision petitioner are under Section 292(a) of the erstwhile
Indian Penal Code and Section 3(1)(a) of Young person (Harmful
Publication) Act, 1956.
2. The prosecution case in brief is that, the
accused for unlawful gain, exhibited obscene books for sale
in the shop at Erattupetta, on 13.12.2008 and thereby the
accused committed the aforementioned offences.
3. Before the trial court, PW1 to PW3 were
examined and Exts.P1 and P2 were marked. After the closure of
the prosecution evidence, the learned Magistrate examined the
accused under Section 313(1)(b) of the Code of Criminal
Procedure.
4. After hearing both sides, the learned Magistrate
convicted and sentenced the accused to undergo simple
imprisonment for six months U/s.292(a) of IPC and to pay a fine
of Rs.2,000/-. In default of payment of the fine the accused shall
further undergo simple imprisonment for one month. The
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accused is sentenced to undergo simple imprisonment for 3
months U/s.3(1)(a) of Young persons (Harmful Publication) Act
1956.
5. Aggrieved by the judgment of the learned
Magistrate, the revision petitioner approached the Sessions
Court, Kottayam and preferred Crl.Appeal No.359 of 2011.
6. The learned Sessions Judge dismissed the
appeal.
7. Impugning the judgment of the learned Sessions
Judge, the accused preferred this criminal revision petition.
8. Adv.Sanal P.Raj, learned Public Prosecutor
submitted that the impugned judgment of the learned Sessions
Judge is legally sustainable and no interference of this Court is
warranted.
9. Per contra, Adv.Shaji Thomas, learned counsel
for the revision petitioner submitted that the impugned judgment
is legally unsustainable. Both the trial court and the appellate
court had failed to note the various illegalities, irregularities and
improprieties in the prosecution case.
10. Adv. Shaji Thomas, the learned counsel for the
revision petitioner further submitted that, when two views are
possible, one showing the guilt of the accused and the other
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pointing out the innocence of the accused, the Court shall accept
the latter view.
11. The learned counsel for the revision
petitioner has assailed the impugned judgment, mainly, on
two grounds. Firstly, the accused was not identified in the
dock. In other words, when the evidence was recorded by
the trial court the accused person was absent. He submitted
that the identification of the accused in the dock assumes
much significance. The conviction and sentence of the
accused without proper identification in the court, is legally
impermissible. The second contention is with respect to
Section 292 of the Indian Penal Code.
12. Learned counsel submitted that, the real test
of obscenity is whether the tendency of the matter charged
as obscene is to deprave and corrupt those whose minds are
open to such immoral influences and into whose hands the
object of the sort may fall. The learned counsel submitted
that, the courts below have arrived at a conclusion of
conviction without examining the material object and only on
the basis of the evidence adduced by PWs 1 to 3. The
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learned counsel has placed reliance on a decision in Abdul
Rasheed Vs. State of Kerala (2008 (3) KLT 150).
Paragraph Nos.13 of the Abdul Rasheed's Case (supra) is
extracted hereunder:
"13. Eventhough the word "obscene" has not been
defined in the I.P.C., the said expression has been
the subject of judicial interpretation at the hands of
the Apex court and other Courts. The word obscene
means what is offensive to modesty or decency and
which gives rise to emotions, nudeness, filthiness
and repulsiveness. The real test of obscenity is
whether the tendency of the matter charged as
obscene is to deprave and corrupt those whose
minds are open to such immoral influences and into
whose hands the object of the sort may fall. But then
the perspective of the author alone is not decisive in
evaluating whether a given work is obscene or not.
Even the certificate issued by the Censor Board
under the Cinematograph Act, 1952, does not give
immunity to a celluloid film from obscenity. In other
words, certification by the Censor Board does not
vaccinate the film against obscenity. The Court will
have to examine the film or other object, book,
material or representation for the purpose of
evaluation of obscenity for which the criterion is
whether the work in question is lascivious or
appeals to the prurient, lewd, lecherous, lustful or
satyric instincts of the reader or the viewer. (Vide
para 15 of Raj Kapoor and Others v. State (Delhi
Administration) (AIR 1980 SC 258). Unless the court
personally examines the work and evaluates the
degree of obscenity, if any, applying the well settled
tests, it cannot be said that there is primary or first
hand evidence before court so as to enable the court
to record a finding either way. It is not enough that
the court merely peruses the description or the
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appearance or the contents of the work in question
as incorporated in a search list or seizure mahazar
because, in such a case the court would be violating
the rules of primacy of evidence as contained in Ss.
60 and 61 of the Evidence Act. The trial court, in
this case, had viewed MO1 cassette using a cassette
player and a monitor and was satisfied that the
contents of the cassette are obscene."
13. Upon hearing the submissions of the learned
counsel for the revision petitioner, I am of the view that
prosecution has failed to allege and prove the charge against
the accused beyond reasonable doubt. It is trite law that,
penal statutes are to be interpreted strictly within four
corners of the statute. Both the trial court and the appellate
court have overlooked various illegalities and infirmities,
while convicting and sentencing the accused/revision
petitioner. In the light of the above discussion, I am of the
considered opinion that the criminal revision petition is to be
allowed. The impugned judgment of the Sessions Court,
Kottayam is set aside. Accused is set at liberty.
In the result,
(i) Criminal revision petition is allowed.
(ii) The impugned order is set aside.
(iii) The revision petitioner/accused is
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acquitted and he is set at liberty.
(iv) The bail bond, if any, executed by the
revision petitioner stands cancelled.
(v) Fine, if any, paid by him shall be
refunded.
Sd/-
K. V. JAYAKUMAR
JUDGE
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