IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN THURSDAY, THE 29TH DAY OF MAY 2014/8TH JYAISHTA, 1936 CRL.MC.NO. 3964 OF 2012 () ---------------------------
CC. NO.250/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KANJIRAPPALLY.
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PETITIONER/ 2ND ACCUSED:
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PRADEEP ANAND. C.S., AGED 41 YEARS, S/O. SIVANANDAN, ANANDA NIVAS, KARAKONAM P.O., THIRUVANANTHAPURAM.
BY ADVS.SRI.T.G.RAJENDRAN, SRI.T.R.TARIN.
RESPONDENT/COMPLAINANT/ STATE:
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1. SUB INSPECTOR OF POLICE, PALLIKKATHODU POLICE STATION, KOTTAYAM -686 537.
2. STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
3. SURESH BABU, S/O. GOPALAN, AGED 41 YEARS, PUTHENPURAYIL HOUSE, KAYOORI BHAGAOM, ANIKKAD- 686 503.
R1 & R2 BY SRI.T. ASAF ALI, DIRECTOR GENERAL OF PROSECUTION. SR. PUBLIC PROSECUTOR SRI.VIJU THOMAS.
R3 BY ADV. SRI.LIJI.J.VADAKEDOM.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29-05-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rs.
CRL.MC.NO. 3964 OF 2012
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE I COPY OF THE FIRST INFORMATION REPORT. ANNEXURE II COPY OF THE FINAL REPORT.
ANNEXURE III COPY OF THE ORDER SHEET.
ANNEXURE IV COPY OF THE PETITION FILED BY THE PETITIONER.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY// P.S. TO JUDGE rs.
P.D. RAJAN, J.
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Dated this the 29th day of May, 2014
O R D E R
The petitioner, who is the 2nd accused in C.C.145/2009 of the Judicial First Class Magistrate - I, Kanjirappaly, preferred this petition under Section 482 of the Code of Criminal Procedure to quash annexure A1 F.I.R. and Annexure -II Final Report in Crime No.
293/2010 of Pallikkathodu Police Station by invoking inherent jurisdiction. The above case was registered by the Sub Inspector of Police, Pallikkathodu under Sections 4 and 6 of Indecent Representation of Women (Prohibition) Act, 1986 (hereinafter referred to as 'the Act')against the 3rd respondent and after investigation Annexure II final report was filed against him in the above Court. During trial petitioner was arraigned as 2nd accused by invoking Section 319 of the Code of Criminal Procedure. The petitioner contended that there is no evidence against him to invoke Section 319 of the Code of Criminal Procedure. If trial is proceeded it amounts to a mere abuse of the process of court.
2. The allegation in the above case is that on 9.6.2010 the Sub Inspector of Police was conducting patrol duty within his jurisdiction and at about 6.30 p.m. he arrived at private bus-stand, Pallikkathodu, where he found obscene magazine displayed in a shop. The owner of the shop was arrested from the spot itself, seized the obscene magazine and registered a crime under Sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act,1986. After completing investigation he laid charge before the Judicial First Class Magistrate, Kanjirappally.
3. The learned counsel appearing for the petitioner contended that C.I. of Police is the notified officer to conduct a search and seizure under Section 5 of the Act. The word 'may' shall be read as a mandatory provision and a Sub Inspector cannot conduct a search and seizure violating of Section 5 of the Act. Articles seized in violation of Section 5 is not admissible in evidence for a valid prosecution and trial is to be vitiated. Petitioner is not the printer and publisher of the magazine and no evidence has been adduced by the witness for invoking Section 319 of the Code of Criminal Procedure. He relied the decisions reported in Noranglal v. State of Rajasthan [2010(3) 471], Hashim v. Assistant Sub Inspector [2014 (2) KLT 346], Sinu Sainudheen v. Sub Inspector of Police (2002(1) KLT 693) and State of Dellhi v. Ram Avatar @ Rama (2011 (12) SCC 207).
4. The learned Public Prosecutor submitted that the seizure will not affect the validity of the above case and valid prosecution is possible on the basis of the seized article. The Sub Inspector is a competent police officer as per the Code of Criminal Procedure to conduct a seizure. Unless prejudice caused to the accused is properly explained in a prosecution, the seized article is a legal evidence to the prosecution. There is no illegality in the seizure according to the Code of Criminal Procedure.
5. The powers to enter and search under Section 5 of the Act. Section 5 of the Act reads as follows:
“Powers to enter and search.-(1) Subject to such rules as may be prescribed, any Gazetted Officer authorised by the State Government may, within the local limits of the area for which he is so authorised,-
(a) enter and search at all reasonable times, with such assistance, if any, as he considers necessary, any place in which he has reason to believe that an offence under this Act has been or is being committed;
(b) seize any advertisement or any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which has reason to believe contravenes any of the provisions of this Act;
(c) examine any record, register, document or any other material object found in any place mentioned in clause (a) and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act”.
6. According to the above Section any Gazetted Officer authorised by the State Government may, within his local area which he considers necessary to enter and search any place which he has reason to believe that the offence under this Act has been committed or being committed. He has also given power to seize any advertisement or any book, pamphlet, paper, slide, film, writing, drawing, photograph, representation or figure which he has reason to believe contravenes any of the provisions of this Act. He can also examine any record, register, document or any material object found in the place as mentioned in clause (a) and seize the same if he has reason to believe that it may furnish evidence of the commission of such offence. The proviso says that no entry under this sub-section shall be made into a private dwelling house without a warrant. The proviso also further explains that the give power to seize under this sub-section may be exercised in respect of any document, article or thing which contains any such advertisement, including the contents, if any, of such document, article or thing if the advertisement cannot be separated by reason of its being embossed or otherwise from such document, article or thing without affecting the integrity, utility or saleable value thereof. Sub-section 2 says that the provision of Code of Criminal Procedure shall apply to any search and seizure under the act as they apply rto any search or seizure under a warrant issued under Section 94 of the Code of Criminal Procedure. Sub-section (3) says that, where any person seizes anything under clause (b) or clause (c) of sub-section (1), he shall immediately report to the Magistrate.
7. In exercise of power conferred under Section 10 of the Act, the Central government have been enacted, “the indecent representation of Women (Prohibition) Rules, 1987” and directed every seizure made in pursuance of Section 5(1) shall be made as per the rules provided. According to Rule 3 the authorised officer seizing advertisement shall prepare a list of such advertisement relating to the description, quality, quantity, mark, number and other particulars which is relevant to the identity of such article or advertisement in the [3(2)] form provided under the rules. He shall also pack and seal it and shall deliver a copy of the list to the person from whom the seizure is made. The seized article shall be marked with a distinguishing mark and shall be signed by the authorised officer, by the person from whom such seizure was made and by two respectable inhabitants of the locality. If it is not possible to mark, he may do the marking on the package in any other manner which the authorised officer thinks proper.
8. The packing of the article seized shall be made adequately in strong paper, cloth or in any packing material in such a way the articles inside may not be tampered with and the end of the paper, cloth or other material shall be neatly folded in and affixed by means of gum or other adhesive or stitched in or tied under Rule 4. The authorized officer shall put the advertisements or articles in a box, a container of a suitable material and size and seal it in the manner provided in sub-rule (2). If necessary where the authorized officer is of the opinion that it is not possible to seize and seal any advertisement or article in the manner prescribed in rules 3 and 4 due to the size or the nature of such advertisement or article, he may take such steps as he thinks fit for the seizure and sealing of such advertisement or article without affecting the integrity, utility or saleable value thereof.
9. In this backdrop it is necessary to consider the object of this enactment. The law relating to obscenity is summarised in sections 292, 293 and 294 of the Indian Penal Code. Section 292 is in respect of sale of obscene books, section 293 deals with sale of obscene objects to young persons, and section 294 covers obscene acts and songs. These provisions have no special reference to the indecent representation of women and due to this lacuna a tendency started growing to represent women in a very indecent manner. Especially in publications and advertisements indecent references to women started affecting the morality of the society and had the effect of denigrating women. To bestow with such a situation the Indecent Representation of Women (Prohibition) Bill was introduced in the Parliament to forbid indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner. Even after enactment of these provisions, there is a growing tendency of indecent representation of women in publications, particularly advertisements, which dishonouring to women. It is therefore, in this context enacted a separate legislation to prohibit the indecent representation of women through advertisements, books, pamphlets.
10. Section 8(2) of the Act says that the offence under the Act shall be cognizable. Cognizable offence means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. Therefore, it is found that in case of a cognizable offence, a police officer can arrest the offender without warrant and can investigate into such case without any order or direction from a Magistrate. In cognizable offence, it is the primary responsibility of the police to bring the offender to justice. But according to the Act the power for conducting search under Section 5(1) is restricted to gazetted officers alone.
11. Now the question remains for consideration is whether Section 5(1) of the Act is mandatory or directory and non-compliance thereof would vitiate the trial. The Apex Court in Textile Commissioner and Others v. Sugar Textile Mills (AIR 1977 SC 1516) held that the word “may” is capable of meaning “must” or “shall” in the light of the context and where a discretion is conferred upon a public authority coupled with an obligation the word “may” which denotes discretion should be construed to mean a command.
12. A Constitution Bench of the Apex Court in State of U.P. & Ors. V. Babu Ram Upadhya [AIR 1961 SC 751], explained the issue and held that for ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.”
13. According to Section 5(1) of the Act a gazetted officer is notified as the competent officer by the State Government by virtue of G.O.(M.S) No.17/88 SWD dated 30.5.1988, accordingly Director General of Police issued a Circular No.26/94 (No.D15/63913/94 dated 28.7.1994, which notified all police officers above the rank of C.I. Of Police and dealing with law and order empowered as a Gazetted Officer under Section 5(a) to enter and search the premises involved in the offences. (b) seize any advertisement, book, paper, pamphlet © to examine any document, register, record or any other material object. Therefore the search and seizure Section 5 shall be done by a gazetted officer who is the C.I. of Police alone.
14. While determining a provision mandatory or directory, in addition to the language used therein, the Court has to examine the context in which it is used. It may also examine the intention of the legislature for enacting it and the general inconvenience thereto from its application. The court shall so consider the purpose of the enactment it proposes to achieve and the serious inconveniences. The provision is mandatory if it is enacted for the purpose of enabling the doing of something and prescribes certain formalities for doing certain things. Therefore the power to enter and search is conferred upon the Circle Inspector alone. Why such a condition was incorporated in the special statute is to avoid misuse of the Section by junior police officers. The distinction between 'mandatory provisions' and 'directory provisions' is that where the provisions are mandatory, its non-compliance vitiates the entire proceedings. In Section 5(1) of the Act the word “may” is used but in Indecent Representation of Women (Prohibition) Rules, 1987 the word “shall” is used. Therefore when a discretion is conferred upon a public authority coupled with an obligation, 'may' is capable of meaning”must” or “shall”.
15. But when a police officer without any prior information as contemplated under the provisions of the Act arrests a person and seize any material in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr.P.C. and when such seizure is completed at that stage Section 5 of the Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during any search or arrest there is a chance recovery of any obsene article then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Indecent Representation of Women (Prohibition) Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the search in accordance with the provisions of the Act. Nothing was stated by the petitioner that the Sub Inspector conducted search and seizure in a private premise as contemplated under Section 5 of the Act. .
16. I have already observed that “the Indecent Representation of Women (Prohibition) Act, 1986” was enacted with the object of protecting the women from indecent representation and the provisions of Indian Penal Code are not sufficient, therefore special care and protection was given to restrict the growing tendency to represent women in a very indecent manner. Therefore strict compliance of the provisions is necessary. It is the primary responsibility of the detecting officer, if he is a non-empowered officer to inform the seriousness of obscene articles to the empowered officer to conduct a search and seizure in a private place as provided in the Act. In this case when the Sub Inspector of Police arrived at the Pallikkathodu bus-stand, he found obscene article in 3rd respondent's shop. He seized those articles. But nothing is clear that he had conducted a search inside the shop, or after seizing the materials displayed in the shop, he registered this case. The irregularity or illegality in the seizure is not a ground to quash the proceedings on the other hand it is a matter of evidence how it caused prejudice to the accused. Therefore the Sub Inspector, however, cannot totally ignore the valid direction given under Section 5 of the Act. If there is any non-compliance of S.5, it is a matter of evidence. Now the trial is at the fag end, I am not making any observations on that aspect.
17. The petitioner contended that lower court invoked S.319 of the Cr.P.C, and arraigned him as second accused in the capacity of the printer and publisher of the magazine “Fire”. Section 319 of the Cr.P.C. reads as follows:
“Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the enquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person shall be commenced then-
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced”.
18. A plain reading of Section 319 shows that the Court has power to proceed against any person not being accused before it during trial indicate his involvement in the crime shall be tried along with other accused. The section mainly aims to proceed against all suspect persons quickly and cognizance should be taken against the new accused in the same manner as against the other accused. Therefore in an enquiry or trial it reveals from the evidence that any person not arraigned as an accused has committed any offence, he may be tried with other accused. However, the Court has power to add new accused considering the evidence adduced by the witness. The evidence under Section 319 (1) means the statement of witnesses recorded by the Court alone which does not include the statement recorded by the police officer under Section 161. This is because the Court in such stage is not called upon to evaluate the evidence whether such evidence is sufficient for his conviction. In short evidence adduced by witnesses satisfy the Court to make out a prima facie case against new accused.
19. The Apex Court in Hardeep Singh v. State of Punjab [(2014) 3 SCC 92] explained the word 'evidence' and held as follows:
“It is in this context that the word “evidence” as appearing in Section 319 Cr.P.C. has to be read and understood. The material collected at the stage of investigation can at best be used for a limited purpose as provided under Section 157 of the Evidence Act i.e. to corroborate or contradict the statements of the witnesses recorded before the court. Therefore, for the exercise of power under Section 319 Cr.P.C. the use of word “evidence” means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the court is of the opinion that a person not accused before it has also committed the offence, it may summon such person under Section 319 Cr.P.C”.
20. The Sub Inspector stated that the petitioner is the printer and publisher of the obscene magazine “Fire” but the name of the printer and publisher mentioned in the magazine is not ascertained. Whether the publisher is a firm or a company was not ascertained by him. In the absence of such material Asst. Public Prosecutor filed a petition before the trial court and arraigned the petitioner as an accused without ascertaining the name of the printer and publisher. He is also not know who is in charge and responsible for the day-to-day affairs of the firm or company. Section 319 of the Code of Criminal Procedure also empowers the Court to proceed against other persons other than the accused in an enquiry or trial. If it appears from the evidence that any person not being the accused has committed any offence in any enquiry or trial and such person could be tried together with the other accused, if the Court get evidence with regard to the involvement of such persons. When a company commits an offence it shall be made as a party then only the person in-charge and responsible for the day- to-day affairs of the company will liable. Therefore, nothing has been mentioned in the order under which circumstance the petitioner was arrayed as an accused by invoking under Section 319 of the Code.
21. The Apex Court in Hardeep Singh v. State of Punjab (2014) 3 SCC 92) held as follows:
“105 Power under Section319 Cr.P.C is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person ay also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
22. Therefore from the aforesaid discussion, I hold that only when a prima facie case is established from the evidence adduced before the court, not on the basis of cross-examination, it requires sound evidence than mere probability of his complicity. The test that can be applied is one which is more than prima facie case at the time of framing of charge, but to the extent that the evidence, if un-rebutted, would lead to conviction. When there is lack of such satisfaction, the court should refrain from invoking such power. Therefore, adding petitioner as a second accused and his further trial is a mere abuse of the process of court. Hence I quash the proceedings initiated against the petitioner by invoking Section 482 of the Code of Criminal Procedure. This will not affect the pending case against the first accused and where, in the course of trial, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the learned Magistrate shall proceed against such person according to law.
Hence this petition is disposed of with the above observation.
Sd/-
P.D. RAJAN, JUDGE.
Rka /true copy/