Suresh and Kannan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY, THE 19TH DAY OF JULY 2018 / 28TH ASHADHA, 1940** **Crl.Rev.Pet.No. 1039 of 2010** **IN CRA 602/2008 of ADDL.DISTRICT COURT (ADHOC)-II, PALAKKAD IN CC 397/2004 of J.M.F.C., PATTAMBI** ## **REVISION PETITIONER(S)/APPELLANTS/ACCUSED** **1 SURESH,AGED 39 YEARS,S/O.SIVARAMAN, RESIDING AT 'VIKRAMCHERI VEEDU",VALAPPAD PO,, THRISSUR.** **2 KANNAN,AGED 36 YEARS,S/O.KORAN, RESIDING AT "THEKKUMPURATHU VEEDU", PULLASSERI PO,KOPPAM,, OTTAPPALAM TALUK, PALAKKAD.** **BY ADVS.SRI.A.RANJITH NARAYANAN** **SRI.S.K.SAJU** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY S.I. OF POLICE, PATTAMBI, REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR/GOVT.PLEADER, HIGH COURT OF KERALA AT ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. B. JAYASURYA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ds** ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 1039 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of July, 2018 ## **O R D E R** The revision petitioners herein challenge the conviction and sentence against them in C.C. No. 397 of 2004 of the Judicial First Class Magistrate Court, Pattambi. The first revision petitioner is the Manager of a Film Exhibitor, and the second revision petitioner is his operator. On the basis of some secret information, the Sub Inspector of Police, Pattambi, conducted a search at the theater by name “Mathilakam Cine Movies” at Pattambi, at about 12 noon on 07.02.2002, while the film, “Mayangunnamanassu” was being exhibited there. Finding some obscene and nude scenes being exhibited as part of the film, the Sub Inspector stopped the film exhibition there, and he seized the objectionable part of the film interpolated into the main film. The objectionable film seized by him was produced in court. After investigation, the police submitted final report against ## **Crl.R.P. No. 1039 of 2010** **-2-** the two accused under Section 292(2)(a) of the Indian Penal Code, and under Section 7(a)(i) and (ii) of the Cinematograph Act (for short “the Act”) before the Judicial First Class Magistrate Court, Pattambi. 2. The two accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against them. The prosecution examined nine witnesses, and proved Exts. P1 to P8 documents in the trial court. The MO1 film spool of a short duration of 8 minutes containing objectionable nude scenes was also identified during trial. 3. The two accused denied the incriminating circumstances when examined under Section 313 Cr.P.C.. They did not adduce any evidence in defence. 4. On an appreciation of the evidence, the trial court found both the accused guilty. On conviction, they were sentenced to undergo simple imprisonment for six months each under Section 7(a)(i) and (ii) of the Act. No separate sentence was imposed under Section 292(2)(a) IPC. ## **Crl.R.P. No. 1039 of 2010** **-3-** 5. Aggrieved by the judgment of conviction dated 17.09.2008, the accused approached the Court of Session, Palakkad, with Crl.A. No. 602 of 2008. In appeal, the learned Additional Sessions Judge (Adhoc-II), Palakkad, confirmed the conviction and sentence, and accordingly, dismissed the appeal. Now the two accused are before this Court in revision, challenging the legality and propriety of the conviction and sentence. 6. On hearing both sides, and on a perusal of the entire materials, I find that the conviction in this case under Section 7(a)(i) and (ii) of the Act is unsustainable. The main issue is concerning a film spool of 8 minutes duration seized by the police from the theater. The Sub Inspector conducted search there while a particular film was being exhibited. The prosecution case is that a film spool containing obscene scenes, was seen interpolated into the certified film. **Crl.R.P. No. 1039 of 2010** **-4-** 7. The revision petitioners claim the protection of the proviso to Section 5A of the Act. Section 5A of the Act provides that the Board constituted under the Act shall examine the film for which certificate is applied for, and if the Board finds no objectionable thing, the Board may grant certificate appropriately. Different categories are prescribed under Section 5A of the Act. Depending upon the contents of the film, and the result of screening made by the Board, the Board can issue “U” certificate, or “UA” certificate, or “A” certificate, or “S” certificate. Anyway, it is for the Board to examine the whole film before issuing certificate. Being a cinema film it will contain different scenes, and in some cases there can even be obscene or objectionable scenes also. It is the function of the Board to examine the whole film, and take decision appropriately on the request for certificate. The proviso to Section 5A of the Act provides that the applicant for certificate, or any distributor or exhibitor or any other person to whom the rights in the film ## **Crl.R.P. No. 1039 of 2010** **-5-** have passed, shall not be liable for punishment under any law relating to obscenity in respect of any matter contained in the film for which certificate has been granted under Clause (a) or Clause (b) of the Section. This is a case where the accused have obtained a certificate for the film “Mayangunnamanassu”. On this aspect, there is no dispute. The issue is only whether the objectionable spool seized by the police is part of the certified film, or whether it was an interpolation. 8. The contention raised by the revision petitioners is that to decide whether the objectionable part is a separate obscene spool, or a part of the certified film, the whole film must be viewed and examined by the court, and for this purpose, the whole film must be produced in court. They rely on a decision of this Court in **Ramakrishnan** v. **State of Kerala** (2002 (3) KLT 118), where this Court settled the position, following **Rajkapoor** v. **Lakshman** (1980 KHC 620) = (1980 Crl.L.J. 436), that to decide whether an **Crl.R.P. No. 1039 of 2010** **-6-** objectionable obscene film is part of a certified film or not, the entire film exhibited during a particular show in the theater must be seized and examined, and it is not sufficient if the objectionable scene or part alone is produced, after detaching the same from the censored film. 9. In this case, it is an admitted fact that the entire film was not seized by the police. Only a particular spool of 8 minutes duration was seized, and it was produced in court. During trial, it was identified as MO1. The learned Magistrate had directed a Revenue Tahsildar to view the master video cassette of the entire film “Mayangunnamanassu”, and submit a report whether the objectionable film is part of it or not. The Tahsildar viewed and examined the objectionable film, and submitted a report to court, that it contains obscene scenes. The Tahsildar was examined as PW5 during trial. 10. On an examination of the evidence given by PW5, I find that the Tahsildar had not in fact viewed or **Crl.R.P. No. 1039 of 2010** **-7-** examined the entire scenes contained in the master film, and that his report is only regarding what he saw in the objectionable spool identified as MO1. His evidence is that when he viewed the film spool, he could find obscene scenes therein. He has no case that he had compared the objectionable spool with the other parts of the film in the master video cassette, or that the objectionable scene is part of it, or a separate film. 11. For deciding on the claim of the protection of the proviso to Section 5 of the Act as to whether the objectionable part is portion of the certified film or not, the entire film will have to be examined and viewed fully. Then only it can be said or identified whether the objectionable part containing obscene scenes is in fact part of the main film or not. The exhibitor will not get the protection of the proviso, if it is proved that the objectionable part containing obscene scenes, is not in fact part of the certified film, or it was in fact an interpolation. To find the accused guilty in this ## **Crl.R.P. No. 1039 of 2010** **-8-** case, there must be evidence to show that the MO1 film containing obscene scenes was interpolated into the certified film. But there is no evidence to prove this aspect. Though the Revenue Tahsildar was directed by the court below to examine the whole film, including the objectionable film, he did not do it. Instead, he only viewed the MO1 film spool, and submitted a report that it contained obscene scenes. 12. Of course, it is true that if the objectionable spool or part of the film is not in fact part of the certified film under the Act, the Exhibitor can be prosecuted under Section 292(2)(a) IPC. The accused can be prosecuted and punished even under Section 292(2)(a) IPC only if it is proved that the objectionable spool produced in the case is not part of the certified film, or that it has no connection with the certified film. For deciding this aspect also, the whole film must be viewed or examined. Without viewing or examining the whole film, and comparing the objectionable part with the ## **Crl.R.P. No. 1039 of 2010** **-9-** other parts, one cannot say whether it is part of the original film, or a different spool containing obscene scenes, interpolated into the main film. It is here, the decision of this Court in **Ramakrishnan** 's case assumes importance. I find that the revision petitioners are entitled for the protection of the dictum laid down in **Ramakrishnan'** s case, and in the absence of anything to prove otherwise that the MO1 film spool containing obscene scenes was not identified as a separate one from the certified film, the revision petitioners are entitled for the protection of the proviso to Section 5A of the Act. Thus, I find that they are entitled for acquittal. In the result, this revision petition is allowed. The revision petitioners are found not guilty of the offences under Section 292(2)(a) IPC, and under Section 7(a)(i) and (ii) of the Act, and accordingly, they are acquitted of the offences in revision. The conviction and sentence against the revision petitioners in C.C. No. 397 of 2004 of the trial court, confirmed in appeal by the Court of Session, Palakkad, in ## **Crl.R.P. No. 1039 of 2010** **-10-** Crl.A. No. 602 of 2008, will stand set aside. Sd/- **P.UBAID** **JUDGE** ds 21.07.2018 //True Copy// P.A. To Judge