MOHAN GUPTA Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) This revision petition has been brought for quashment of the proceedings pending against the petitioner on trie basis of F.I.R. No. 446186 of Police Station Kalkaji for an offence punishable under Section 292 of the Indian Penal Code.

(2.) The case of the prosecution, in brief, is that during the course of investigation of case F.I.R. No. 444/86 under Sections 342, 376, 377 & 506 read with Section 34 of the Indian Penal Code, the room in the residential house of the petitioner was searched and out of six video cassettes, lying there, one video cassette of VHS 180 was found to coutain obscene material and thus, was seized and a case was registered under Section 292 read with Section 114 of the Indian Penal Code. It was not mentioned in the F.I.R. that the petitioner was having in his possession the aforesaid obscene video cassette for purposes of sale, hire, distribution, public exhibition or circulation. Still the case was registered and the petitioner was put up for trial. There was no evidence collected even during the investigation by the prosecution to prove that in fact, the petitioner was having in his possession the aforesaid video cassette for any of the said purposes mentioned above. However, the learned Magistrate thought it fit to frame the charge against the petitioner and observed that at the stage of framing of charge it is difficult to say without recording evidence whether such video cassette was kept by the accused for his private use or for any of the aforesaid purposes.

(3.) The charge has to be framed by the Magistrate keeping in view the police report submitted under Section 173 of the Code of Criminal Procedure containing the necessary particulars including the statements of the witnesses recorded under Section 161 of the said Code and any documents taken into possession for placing reliance for bringing home the offence to the accused. In absence of any evidence being relied upon by the prosecution in the police report showing that petitioner was having in his possession the aforesaid obscene video cassette for any of the purposes like sale, hire, distribution, public exhibition or circulation, the Magistrate was not legally right in framing the charge against the petitioner.