JEEVAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner is the accused No. 2 in R.C.C. No. 833 of 2011 pending before the learned Judicial Magistrate, First Class, Beed. The case arose out of C.R. No. 3032/2011 in respect of offences punishable under section 292 of the Indian Penal Code (IPC), section 293 of IPC read with section 34 of IPC, as also offences punishable under section 66A and section 67A of the Information Technology Act, 2000. After investigation, a charge-sheet came to be filed against the petitioner and four others, alleging commission of the aforesaid offences by them. Contending that the charge against him was groundless, the petitioner made an application for discharge, but the learned Judicial Magistrate, First Class, Beed allowed the application only partly, by discharging the petitioner with respect to the offence punishable under section 293 of IPC. The learned Magistrate was of the view that so far as offence punishable under section 292 of IPC was concerned, there were grounds for proceeding against the petitioner, and that, a trial in respect of the alleged offence was necessary.

(2.) The case against the petitioner and the other accused arose pursuant to the First Information Report dated 23.09.2011 lodged by Sayyed Ali Sayyed Umar, Sub-Inspector of Police, attached to Beed City Police Station at the material time. As per the First Information Report, on 23.09.2011 at about 19 hours while the First Informant was present at the Police Station, he received secrete information that the owner and employee of Sagar Mobile Shoppee, Subhash road, was circulating an Obscene Video Clip showing sexual intercourse between one Ramesh Bidve (accused No. 1) and one Smt. Aruna (accused No. 4). On receipt of this information, the police party went to Sagar Shoppee, where Jeevan Band i.e. the petitioner who is the owner thereof and his servant Rajendra were present. When inquires were made with them, they were frightened and started giving evasive replies. Therefore, the Mobile Telephone Instrument of the petitioner was checked, when an Obscene Video Clip showing intercourse between a man and woman was found to be stored therein. When inquiries were made with the servant Rajendra (accused No. 3), he admitted that about two and half years prior one Ramesh Bidve (accused No. 1) had brought his Mobile Telephone for repairs to the shop of the petitioner, and that, at that time the petitioner and the said Rajendra had got the said Obscene Video Clip copied therefrom and stored the same in the Mobile Telephone Instrument of the petitioner. That, the telephone number of Ramesh Bidve was obtained from the petitioner and said Rajendra (accused No. 3); and Ramesh Bidve was called to the police station. He then admitted that the said Video Clip had been prepared by him and his beloved Smt. Aruna (accused No. 4) in the house of one Smt. Shelke (accused No. 5) and was stored in the mobile telephone instrument, and that, thereafter the mobile telephone instrument had been given in the shop of the petitioner for repairing. That, at that time, the petitioner had got the said Obscene Video Clip copied and had circulated the same to the several persons.

(3.) It is contended by Mr. A.R. Devkate, the learned counsel for the petitioner that there is absolutely no material in the charge-sheet to show that the petitioner had circulated the said Obscene Video Clip to anyone. He submitted that even otherwise that the applicant's mobile telephone contained an Obscene Video Clip was itself not indicated by any material, except the statements of the First Informant and other members of the police party only. It is submitted that in any case, even if the petitioner is held to be found in possession of Obscene Video Clip stored in his mobile telephone instrument, still, that, by itself, would not amount to an offence punishable under section 292 of IPC. It is submitted that the Magistrate ought to have discharged the petitioner with respect to the offence punishable under section 292 of IPC also.