SALI Vs. STATE OF KERALA

JUDGEMENT

(1.) Accused in C.C.No.546/91 on the file of Judicial First Class Magistrate II, Aluva has preferred the revision challenging dismissal of Crl.A. No. 137/94 by Additional Sessions Judge, North Paravur confirming his conviction and sentence for the offence under S.292(2)(b) of I.P.C. The case against the petitioner was that on 7.8.1991 at about 5.15 p.m. when PW 5 Circle Inspector along with PWs.3 and 4 police constables, on getting information that petitioner is engaged in hiring of obscene cassettes, reached Shan Video housed in shop with No.V/69 on the road towards east to Edappally Toll junction petitioner was found possessing MOs. 1 and 2 obscene cassettes and thereby committed offence under S.292(2b) of IPC. Petitioner pleaded not guilty to the charge. Prosecution examined five witnesses and marked Exts.P1 to P3 and got identified Mos. 1 and 2. On the side of petitioner DW1 was examined. Learned Magistrate on the evidence found that petitioner was running Shan Videos and MOs. 1 and 2 cassettes which are obscene in nature were kept in the shop for hiring them and thereby committed offence under S.292(2)(a) of IPC petitioner was convicted and sentenced to simple imprisonment for one year and to pay fine of Rs. 1,000/- and in default to simple imprisonment for three months for the said offence. Petitioner challenged the conviction and sentence before the Additional Sessions Judge, North Paravur. As per judgment dated 23.8.1996 learned Additional Sessions Judge after analysing the evidence confirmed the conviction and sentence and dismissed the appeal. It is being challenged in this revision.

(2.) Revision petitioner would contend that Courts below without altering the charge and without affording an opportunity to defend the new charge wrongly convicted him for the offence under S.292(2)(a) of IPC when he was asked to answer only for the charge under S.292(2)(b) of IPC. According to the petitioner it has caused prejudice to him and therefore conviction and sentence is unsustainable. Petitioner would also contend that Courts below failed to take note of the fact that there was violation of S.100 of Cr.P.C. and there was no proper search and hence there is no evidence to prove that MOs. 1 and 2 were seized from the petitioner and hence his conviction and sentence is unsustainable.

(3.) Prosecution case was that on 7.8.1991 PW 5 got information that accused was engaged in the business of hiring obscene cassettes in his shop, Shan Videos, Edappally Toll Junction. Case is that along with PWs.3 and 4, PW 5 reached there and from the shop MOs. 1 and 2 were seized under Ext. P2 search list and thereafter Ext. P3 FIR was prepared and case was registered. Though ingredients of the allegation would attract only an offence under S.292(2)(a) of IPC, PW 5 laid charge for the offence under S.292(2)(b). The learned Magistrate read it over to the petitioner who denied the charge. As per charge petitioner was answerable to only an offence under S.292(2)(b) of IPC.