ORDER
G.L. Gupta, J.
1. This Misc. petition is directed against the order dt. 5-2-96 passed by the learned Judicial Magistrate, Sri Ganganagar whereby he read over accusation under Section 292, IPC to the petitioners.
2. The brief facts of the case are that on 17-8- 93 Shri Kashi Ram, C.I., received some information and hence he raided house No. 4D-33 in Jawahar Nagar, Sri Ganganagar, which belonged to Charanjit, at 5.30 p.m. There he found hide of a leopard lying. He also noticed that four persons including one lady were viewing obscene film on the television with the help of V.C.R. He, there fore, seized the cassette, television set and the V.C.R. After going to the Police Station, the Circle Inspector registered a case under Section 292, IPC and Section 10 of the Rajasthan Video “Film Regulation & Exhibition Act, 1990. On the completion of the investigation, the police submitted a challan against the four petitioners. The learned Judicial Magistrate by the impugned order read over accusation under Section 292 IPC to the petitioner who pleaded not guilty.
3. The contention of Mr. Garg was two fold. One, the allegation that at 6.45 p.m. the petitioners were viewing obscene film on the T. V. screen is absurd as the petitioners could not dare to view obscene film after the Circle Inspector had reached the house at 5.30 p.m. and had booked the petitioners in a case under the Wildlife Act. Two, even on assuming that there was a cassette of obscene film, the petitioners cannot be charged for the offence as they had not kept the same in the house for sale, hire, distribution, public exhibition or circulation.
4. Mr. Upadhyay, learned Public Prosecutor, on the other hand, tried to support the order of the trial Court by contending that there might be mistake in recording time of the occurrence.
5. The contention of Mr. Garg cannot be said to be without merit that after the police reached the house and had even booked the petitioners in a case under the Wildlife Act, they would dare to view obscene film on the television screen. Ac cording to the documents prepared by the S.H.O., he had reached the house at 5.30 p.m. and had recovered, the Wildlife hide at that time. It is thus obvious that the Circle Inspector was present in the house at the time of alleged viewing of the film by the petitioners at 5.45 p.m. It is not possible to believe that the petitioners would be running the risk of viewing of film at that time.
6. Then even on assuming that there was a cassette of obscene film or that it was in the V.C.R. and was on the screen at the time the Circle Inspector reached the house, in my opinion, the petitioners cannot be charged under Section 292, IPC. Section 292, IPC is reproduced hereunder:
292. Sale, etc.. of obscene book’s etc.– (1) For the purposes of Sub-section (2), book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (wherever it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
(2) Whoever —
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes produces or has in possession any obscene book, pamphlet, paper drawing, painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.
7. A reading of Clause (a) of Sub-section (2) makes it clear that offence is committed if either someone sells, lets to hire, distributes, publicly exhibits, or in any manner puts into circulation, or he for purpose of sale, hire, distribution, public exhibition circulation, makes, produces or keeps in possession any obscene book, pamphlet, pa per, drawing, painting, representation or figure or any other obscene object. The mere possession of objectionable object is not the offence under Clause (a). It is offence only when someone has in possession such object for the purposes of sale, hire, distribute, public exhibits or circulation.
8. In the instant case, it is not the allegation of the prosecution that the petitioners were found selling or doing any other thing as to bring the case in the first part of Clause (a). For the second part of Clause (a), the prosecution has to show that the obscene material was made, produced or kept in possession for the purpose of sale, hire, distribution, public exhibition or circulation. In other words, the possession of the obscene object is punishable under Section 292, IPC if the possession is for the purpose of sale, hire, distribution public exhibition or circulation. If the obscene object is kept in a house and is not for sale, hire, public exhibition or circulation, the accused cannot be charged under Section 292, IPC. It is not the case for prosecution that the case falls under Clause (b), (c), (d) or (e) of Sub-section (2). Rather it was frankly conceded at the time of arguments that the case does not fall in Clauses (b), (c), (d) or (e).
9. Identical question arose before the Madras High Court in the case of V. Sundarrajan v. State of (Cri P. C. No. 376 of 1978) decided on 28-11- 79 which was a case under Section 292-A, IPC. Section 292-A is the State Amendment in Tamil Nadu. Clause (b) of Section 292-A, IPC is more or less same as Clause (a) of Sub-section (2) of Section 292, IPC. The learned Judge of the Madras High Court has held that if a blue film is found in the possession of the accused, he cannot be convicted simply on the ground of possession unless it is further proved that the purpose of keeping the same was selling or letting for hire. Clause (a) of Sub-section (2) of Section 292, IPC is all the more clear. Without proving the purpose of possession mentioned in the clause, a man cannot be convicted for the offence. That being so, the continuance of the proceedings against the petitioners shall be only abuse of the process of the Court. It is, therefore, deemed proper to quash the proceedings pending against the petitioners.
10. Consequently, the petition succeeds. The proceedings pending against the petitioner in the Court of Judicial Magistrate under Section 292, IPC are quashed.
