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Bhogilal Harilal Dave Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1974CriLJ178; (1974)GLR203
AppellantBhogilal Harilal Dave
RespondentThe State of Gujarat
Cases ReferredN. A. Subrahmania Iyer v. Emperor
Excerpt:
.....code and cannot urge that the appellant must show a failure of justice on account of such trial by the magistrate who had no jurisdiction to try such an offence. subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered under chapter xxvii or on appeal or revision on account- (a) of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this code, or (b) of any error, omission or irregularity in the charge, including any misjoinder of charges, or (c) of the omission to revise any list of jurors in accordance with section 324, or (d) of any misdirection..........by the appellant who has been convicted of an offence punishable, under section 292 of the indian penal code and sentenced to suffer three months' rigorous imprisonment and to pay a fine of rupees 500/- and in default of payment of fine to undergo one month's simple imprisonment, by the learned city magistrate, 7th court, ahmedabad, in criminal case no, 918 of 1970. review application has been filed for enhancement of the sentence.2. the appellant was charged in that, he in the month of august, 1968, printed for sale in the name of prakash vardhan, a book bearing the title 'ek sanskari gharni yuvtinl khan-gl diary' which is an obscene book. in that, it contained the following passages quoted in the sheet attached, and thereby committed an offence punishable under section 292 of the.....
Judgment:

J.M. Sheth, J.

1. This appeal is filed by the appellant who has been convicted of an offence punishable, under Section 292 of the Indian Penal Code and sentenced to suffer three months' rigorous imprisonment and to pay a fine of Rupees 500/- and in default of payment of fine to undergo one month's simple imprisonment, by the learned City Magistrate, 7th Court, Ahmedabad, in Criminal Case No, 918 of 1970. Review application has been filed for enhancement of the sentence.

2. The appellant was charged in that, he in the month of August, 1968, printed for sale in the name of Prakash Vardhan, a book bearing the title 'EK SANSKARI GHARNI YUVTINl KHAN-Gl DIARY' which is an obscene book. In that, it contained the following passages quoted in the sheet attached, and thereby committed an offence punishable under Section 292 of the Indian Penal Code.

3. Mr. G. A. Mehta, appearing for the appellant, has contended that the appellant was charged for the aforesaid offence having been committed sometime in the month of August, 1968, and he has been tried and convicted by the learned City Magistrate. This Section 292 of the Indian Penal Code was amended by Amending Act No. 36 of 1969, described as 'Indian Penal Code (Amendment) Act, 1969,' that came into force on 7th September, 1969. Section 292 of the Indian Penal Code originally stood as under:

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 his 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 with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

After the amendment, it stood as under:

292. (1) For the purposes of Sub-section (2), a 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 (where 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 his 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 the 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.

By this amendment, there have been also certain incidental amendments made. That is why it is referred to as 'the Act further to amend Indian Penal Code and to provide for matters incidental thereto.' By Section 3 of this Amending Act, certain amendments have been made in the Criminal Procedure Code, 1898. We are concerned only with the amendment referred to therein in Section 3 (c), which reads as under;

In the Code of Criminal Procedure, 1898,-

(c) in Schedule II, for the entries relating to Section 292 of the Indian Penal Code, the following entries shall be substituted, namely:Section. Offence. Whether the Whether a Whether bail- Whether com- Punishment under the By what Courtpolice may warrant or able or not. poundable or Indian Penal Code. triable.arrest without summons shall not.warrant or ordinarily issuenot. in the firstinstance.------------------------------------------------------------------------------------------------------------------------------------1 2 3 4 5 6 7 8------------------------------------------------------------------------------------------------------------------------------------292 Sale, etc. of May arrest Warrant. Bailable. Not com- On first conviction with imprison- Court ofobscene books, without poundable. ment of either description for a Sessionetc. warrant. term which may extend to twoyears, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either descrip-tion for a term which may extend to five years, and also with fine which may extend to five thousand rupees. For the following entries.292 sale, etc., of May arrest Summons. Not com- Imprisonment of either des- Presidencyobscene books, without Bailable. poundable. cription for three months, Magistrate, oretc. warrant. or fine, or both. Magistrate ofthe first class.--------------------------------------------------------------------------------------------------------------------------------------------

It is thus evident that after this amendment, this offence which was prior to amendment, triable by Presidency Magistrate, or Magistrate of First Class, has been made triable exclusively by the Sessions Court.

4. It is true that the offence in the instant case is alleged to have been committed sometime in the month of August, 1968, i.e. prior to the date this Amending Act of 1969 came into force. But that by itself will not make any difference, as the charge-sheet against the appellant for this offence was sent on 4th September, 1970 to the Court, and charge has been framed against him on 24th September, 1970. In the instant case, the Court has taken cognizance of the offence on the Police report. It would, therefore, mean that the cognizance of the offence by the Magistrate has been taken under clause (b) of Section 190(1) of the Criminal Procedure Code upon a police report in writing of such facts made by a police officer.

5. Section 28 of the Criminal Procedure Code reads as under:

Subject to the other provisions of this Code, any offence under the Indian Penal Code may be tried-

(a) by the High Court, or

(b) by the Court of Session, or

(c) by any other Court by which such offence is shown in the eighth column of the second Schedule to be triable.

In the instant case, we are concerned with the question whether this offence under Section 292 of the Indian Penal Code, which is alleged to have been committed in August, 1968, but charge-sheet in respect of which was sent on 4th September, 1970, and charge against the appellant was framed on 24th Sep., 1970, was triable by the learned City Magistrate. It would be triable by the learned Magistrate, if we find that such Court of Magistrate has been shown in the eighth column of the second Schedule, empowered to try such offence. When the question regarding the trial arose, admittedly, such offence was triable by the Court of Session. It is, therefore, evident that this Court having not been shown to be empowered in that eighth column of the second Schedule to try such an offence, the Court of City Magistrate was not competent to try such an offence.

6. It will be further significant to note that the prosecution cannot press into service the provisions of Section 537 of the Criminal Procedure Code and cannot urge that the appellant must show a failure of justice on account of such trial by the Magistrate who had no jurisdiction to try such an offence. Section 537 of the Criminal Procedure Code reads:

Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account-

(a) of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or

(b) of any error, omission or irregularity in the charge, including any misjoinder of charges, or

(c) of the omission to revise any list of jurors in accordance with Section 324, or

(d) of any misdirection in any charge to a jury unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice.

It is thus evident that for taking the aid of the provisions contained in that section, the finding, sentence or order must have been recorded or passed by a Court of competent jurisdiction. In the instant case, as found by me above, the Court of City Magistrate, at the relevant time, had no jurisdiction and was not competent to try such an offence. Such an offence was triable exclusively by the Court of Session. The prosecution, therefore, cannot get the benefit of the provisions of Section 537 of the Criminal Procedure Code.

7. This conclusion of mine gets support from the decision of the Supreme Court in Pyare Lal v. State of Punjab : (1962)ILLJ637SC , the relevant observations made are:

It is then said that this defect was a mere irregularity and the conviction of the appellant can, if sustainable on the evidence, be upheld under Section 537 of the Code. In regard to this section, it was said by the Privy Council in Pulukuri Kotayya v. Emperor 74 Ind App 65 : AIR 1947 PC 67 at p. 75 : 48 Cri LJ 533:When a trial is conducted in a manner different from that prescribed by the Code (as in N. A. Subrahmania Iyer v. Emperor (1911) 38 Ind App 257 (PC)) the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code.

It seems to us that the case falls within the first category mentioned by the Privy Council. This is not a case of irregularity but want of competency. Apart from Section 350 which, as we have said, is not applicable to the present case, the Code does not conceive of such a trial. The trial offends the cardinal principle of law earlier stated, the acceptance of which by the Code is clearly manifest from the, fact that the Code embodies an exception to that principle in Section 350. Therefore, we think that Section 537 of the Code has no application. It cannot be called in aid to make what was incompetent, competent. There has been no proper trial of the case and there should be one.

In the instant case also, we are concerned with the competency of the Court. The Court of City Magistrate was not competent to try this offence. The order of conviction and sentence passed against the appellant, therefore, cannot be sustained.

8. It need not be stated that even if the sentence that could be awarded to the appellant, in case an offence is established against him may be a punishment that was provided in the Indian Penal Code, when the offence was committed, it would not make any difference as regards the aforesaid question regarding the trial.

9. The appeal is allowed and the order of conviction and sentence passed against the appellant is set aside. The case being triable exclusively by the Sessions Court, the City Magistrate will have to follow the provisions regarding the inquiry into cases triable by the Court of Session referred to in Chapter XVIII of the Criminal Procedure Code, and if he finds sufficient ground, to commit the appellant to the Court of Session, Ahmedabad to stand his trial.

10. The appellant to appear in the Court of the City Magistrate, 7th Court, on 5th February, 1973, and the Court may pass proper orders as regards fresh bail.

11. Review Application No. 128 of 1971 therefore does not survive. It, therefore, stands disposed of. Rule is discharged.


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