CRL.MC No. 2150 of 2006 · Kerala High Court

BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------

THE CIRCLE INSPECTOR OF POLICE, NADAKKAVU POLICE STATION, KOZHIKODE.

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2150 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of December, 2008 ORDER Petitioners are father and son. They have been charge sheeted by Nadakkavu Police in Crime No.169 of 2003 for offences punishable under Section 292(2)(a) of the Indian Penal Code and Section 7(A)(1) and (2) of the the Cinematograph Act, 1952 and also under Section 52 (A) and 2(b) of the Copy Right Act, 1957.

2. In this petition filed under Section 482 of the Code of criminal Procedure, petitioners seek to quash the proceedings pending against them on the file of the Judicial Magistrate of First Class, No. IV, Kozhikode in CC.No.713 of 2005.

The prosecution case in brief is that the Circle Inspector of Police, Nadakkavu Police Station had, on receipt of reliable information, conducted a search on the residential premises of the petitioners on May 1, 2003 at about 8.30 a.m. and recovered some computer sets (5 in number) UPS and compact disks. The prosecution alleged that at the time of search, it was noticed that petitioner No. 2 was found exhibiting pornographic films in the Central hall of the Crl.MC.2150/06 2 house using a computer. On search it was found that large number of CDs of cinemas and pornographic films/videos were kept in boxes under the cot in the hall. According to the prosecution, the accused had taken the prints of feature films and pornographic videos for the purpose of sale. The two accused were arrested after completing the formalities. Two witnesses who were allegedly present at the time of search and seizure had signed in the mahazar. The Police had completed the investigation and laid the charge sheet before the court of competent jurisdiction, later.

It is contended by the petitioners that the documents produced by the Police along with the final report will conclusively show that petitioners cannot be held guilty of the offences alleged against them. Learned counsel for the petitioners has taken me through the First Information Report, Search List, charge sheet etc. Learned counsel has also brought to my notice that the prosecution had not produced any document to show that the alleged compact discs were copied by the petitioners in violation of the Cinematograph Act and the Copyright Act. It is further contended that the charge under Section 292 (2)(a) IPC will never be attracted since admittedly petitioner No.2 Crl.MC.2150/06 3 was allegedly copying pornographic films inside his house. There is considerable force in the above contention. The prosecution did not have a case that the film was being exhibited by the petitioners publicly. The Police had apparently proceeded on the basis that copies of the films were being taken by the petitioners for distribution, sale etc. Therefore it cannot be said that the offence under Section 292(2) (a) is attracted.

The other charge against the petitioners is that they have committed the offence punishable under Section 7(A)(1) and (2) of the Cinematograph Act , 1952. A perusal of the above provision will show that the petitioners have not committed any offence in contravention of any of the provisions contained in the Act. The learned Public Prosecutor is not in a position to substantiate before me that any offence under the Cinematograph Act 1952 has been committed by the petitioners.

Similarly the other charge against the petitioners is that they have committed the offence punishable under Section 52A and (2)(b) of the Copyright Act ,1957. Crl.MC.2150/06 4

Having carefully perused the materials available on record, I have no hesitation to hold that the offence under Section 52A and 2(b) cannot be attracted.

In this context it may be noticed that the Police had not produced any certificates from any competent authority to show that petitioners were taking copies from original CDs or pornographic films. When this case came up for consideration, the Station House Officer, Nadakkavu Polilce Station was directed to file a report indicating whether any steps had been taken in the above direction. He was present before this Court with the Case Diary file and informed the Court that the Tahsildar had failed to take any steps in this regard. In other words, there is nothing on record to show that petitioners had kept in their possession any pornographic films or that they were engaged in taking copies of pornographic films or CDs, in order to attract the provisions contained in Section 292(2)(a) IPC. Therefore the Crl.M.C is allowed. The proceedings pending in CC.No.173/2005 on the file of Judicial Magistrate of First Class, No.IV, Kozhikode are quashed. an. A.K. Basheer Judge.