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KARNATAKA HIGH COURT
Rajendra Badamikar, J.
Amit – Petitioner
versus
State of Karnataka – Respondent
Criminal Revision Petition No.2066 of 2013
Decided on 2.8.2021
Indian Penal Code, 1860 – Section 292 – Criminal Procedure Code, 1973 – Sections 397 and 401 – Selling of CDs containing obscene and nude films – Conviction and sentence – Offence under Section 292 of IPC is punishable with imprisonment for a period of two years with fine of Rs.2,000/- – In instant case, Magistrate has imposed punishment of one year with fine of Rs.2,000/-, in default of payment of fine, to undergo Simple Imprisonment for a period of three months – Accused/revision petitioner was aged about 24 years when offence was committed – Now he should be aged between 35 to 40 years – He was all along in trauma for almost 11 years – CD shop is now closed in view of on-line activities – Looking to facts and circumstances of case, it is too harsh to impose punishment of one year to petitioner – If imprisonment is reduced, till rising of Court by maintaining fine, it will meet ends of justice – Conviction order passed by courts below affirmed – However, sentence of imprisonment of one year modified and revision petitioner directed to undergo imprisonment till rising of Court – Fine amount with default clause left undisturbed.
Held: The offence under Section 292 of IPC is punishable with imprisonment for a period of two years with fine of Rs.2,000/-. In the instant case, the learned Magistrate has imposed punishment of one year with fine of Rs.2,000/-, in default of payment of fine, to undergo Simple Imprisonment for a period of three months. In the above reported decision, the offence involved is also under Section 292 of IPC. In the given circumstances, Court has held in Paragraph No.70 that, ‘the command of the Legislature is to award a sentence of imprisonment in every case of conviction under Section 292 of IPC’. In the said decision, the submission for releasing the accused is on Probation of Offenders Act (for short, ‘P.O. Act’) was also rejected. Therefore, considering the facts and circumstances it is held that, it is not a fit case to grant the benefit of P.O. Act. As such, in the said case, the imprisonment was restricted to till rising of the Court and sentence of fine was retained for Rs.2,000/- with default clause. In the instant case, the accused/revision petitioner was aged about 24 years when the offence was committed. Now he should be aged between 35 to 40 years. It is also submitted that, he all along in trauma for almost 11 years. It is further submitted that the CD shop is now closed in view of the on-line activities. Looking to the facts and circumstances of the case, in my considered opinion, it is too harsh to impose punishment of one year to the petitioner. Hence, as observed in the above reported decision, if the imprisonment is reduced, till rising of the Court by maintaining fine, it will meet the ends of justice. In these circumstances, this revision petition needs to be allowed to this extent alone. (Paras 12 and 13)
Result: Criminal Revision Petition allowed partly.
ORDER
The petitioner has filed this petition under Section 397 read with 401 of Cr.P.C. for setting aside the judgment of conviction and order of sentence dated 31.12.2012 passed by the District and Sessions Judge, FTC, Jamkhandi, in Criminal Appeal No.77/2012, whereby the learned Sessions Judge confirmed the judgment of conviction and order of sentence passed by the Principal Civil Judge and JMFC, Jamkhandi in CC No.336/2010 dated 26.06.0212 for the offence punishable under Section 292 of IPC.
2. It is the case of the prosecution that, the complainant was running a CD shop in Dwarakanath Galli at Jamkhandi; that on 24.09.2010, the complainant-Dy.S.P. received a credible information that the revision petitioner is running CD shop in the name and style of Golden CD and Computer works situated in CTS 2303/1/C and he was indulged in selling CDs containing obscene and nude films and selling them to public for a consideration amount valuing from Rs.50/- to Rs.100/-. Then the complainant-Dy.S.P. directed the PSI to secure the panchas and along with panchas they raided the shop of the revision petitioner at about 6.00 p.m. and on inspection of the premises, 11 CDs put in a card-board box were found, which were containing obscene and nude pictures in respect of the persons involving in sexual intercourse. Then, they were seized by the Investigating Officer by drawing a mahazar and a complaint was lodged and a case was registered in Crime No.133/2010 of Jamkhandi Town Police Station against the accused/revision petitioner. Subsequently, the revision petitioner was arrested and was later on enlarged on bail. Thereafter, the Investigating Officer submitted the charge sheet against the accused for the offences punishable under Sections 292 and 293 of IPC.
3. The learned Magistrate after having taken the cognizance of the alleged offences, secured the presence of the accused and framed charges under Sections 292 and 293 of IPC against him.
4. The prosecution in order to bring home the guilt of the accused, has examined in all seven witnesses as PWs. 1 to 7 and placed reliance on five documents as per Exs.P1 to P5 and eleven material objects as MOs. 1 to 11. Thereafter, a statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused/revision petitioner is of total denial and he did not let-in any defence evidence. Then after hearing the arguments, the learned Magistrate has convicted the accused for the offence punishable under Section 292 of IPC and imposed the sentence of imprisonment for a period of one year with fine of Rs.2,000.00, in default to undergo Simple Imprisonment for a period of three months. However, the learned Magistrate has acquitted the accused/revision petitioner herein for the offence punishable under Section 293 of IPC. The judgment of acquittal is not challenged by the State Government.
5. The accused/revision petitioner being aggrieved by the judgment of conviction and order of sentence has filed an appeal before the District and Sessions Judge, FTC, Jamakhandi, in Criminal Appeal No.77/2012 and the learned Sessions Judge by judgment dated 31.12.2012 dismissed the appeal by confirming the judgment of conviction and order of sentence. Hence, the accused/revision petitioner challenging the judgments passed by both the courts below, has filed this revision petition.
6. Learned counsel for the revision petitioner would contend that, all the witnesses examined in the instant case are the official witnesses and the independent witnesses in the form of panchas have turned hostile. He would further submits that, the Investigating Officer has also not obtained the search warrant before proceeding for raid and the entire process appears to be a planted one and no independent witnesses have supported the case of the prosecution. He would further submit that, the Investigating Officer
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