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2015 DIGILAW 1014 (GAU)

Noor Hussain Laskar v. State of Assam

2015-08-12

PARAN KUMAR PHUKAN

body2015
1. The judgment of conviction of the accused/petitioner U/s.354/293 IPC recorded by the learned Trial Court in G.R.Case No. 425/01 and affirmed in appeal by the learned Additional Sessions Judge No.II, Tinsukia in Criminal Appeal No. 23(2) 2004 are the subject matter of challenge in this revision. 2. The factual backgrounds of the case in a nut shell are that on 03.11.2001, the victim, PW 6 had gone to the house of the accused petitioner, namely, Md. Noor Hussain Laskar, who is a teacher to attend her tution class along with her classmate, Amrit Tamang. Since the other students did not come, tution class was not held and when Amrit Tamang and the victim was about to come back, the accused petitioner caught hold of her hands and gave her a book and warned her not to disclose about the same to her parents. 3. On the next day, some other students of the School saw the book inside her School bag and they raised hue and cry. Some other teachers including Kamala Thappa, teacher came to know about it and when they questioned the girl, she disclosed that the book was given to her by the accused person. The student of the School assaulted the accused person. 4. The Civil S.D.O. was informed and the book was handed over to an Executive Magistrate. Written FIR was filed. The accused was charge sheeted and put on trial. The learned Trial Magistrate found him guilty U/s. 354/293 IPC and his judgment was affirmed in appeal. Hence, this revision. 5. The learned Additional Public Prosecutor, Assam strenuously argued that since there has been concurrent findings of fact arrived at by the learned courts below, it is not open to the High Court to interfere in its revisional jurisdiction. It was next contended that the book, namely, “MAIN ABHI NADAN HU” was an obscene book and the accused petitioner being a teacher should not have given such a book to a girl student, aged about 16/17 years. The book produces Pernicious affect and was highly offensive. 6. The learned defence counsel, on the other hand, vehemently argued that material Ext.1, the book cannot be said to be an obscene book. There is no evidence that the prosecution witnesses have gone through the book and the learned courts below was not justified in holding that it was an obscene book. 7. 6. The learned defence counsel, on the other hand, vehemently argued that material Ext.1, the book cannot be said to be an obscene book. There is no evidence that the prosecution witnesses have gone through the book and the learned courts below was not justified in holding that it was an obscene book. 7. Before entering into the merit of the revision petitioner's case, it is necessary to point out the law with regard to the revisional power of the High Court to interfere when there is concurrent findings of fact arrived at by the learned courts below. A Catena of judicial decision has settled the position of law on this important aspect of the matter. I may refer to the case of State of Maharashtra Vs Jagmohan Singh Kuldip Singh Anand and Ors, reported in (2004) 7 SCC 659 ., wherein the Apex Court held as follows:- “Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. It is for the purpose, as set out in Section 397, that if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power. The High Court is required to exercise self-restraint in a revision under section 397. In this case the High Court exceeded its revisional jurisdiction by embarking upon an in-depth re-examination of the oral and medical evidence and coming to a conclusion, contrary to the consistent one reached by the two courts below”. 8. From the aforesaid judgment, it is clear that the power of the revisional court is very limited and it cannot be used in a routine manner to upset the concurrent findings of fact by the learned courts below. 9. In the instant case, on scrutiny of the evidence, it is found that both the learned courts discussed in detail the evidence adduced by all the prosecution witnesses. 9. In the instant case, on scrutiny of the evidence, it is found that both the learned courts discussed in detail the evidence adduced by all the prosecution witnesses. It is established that the accused/petitioner had given the aforesaid book to the victim (PW 6) who was a female student of the School, aged about 16/17 years and it is not difficult to presume that it was intentionally done by the accused to arouse sexuality in her. 10. Both the courts below have gone through the Book aforesaid and opined that it was an obscene book, which is sufficient to produce a pernicious affect in depraving the mind of the student. The learned Addl. Sessions Judge No.II, Tinsukia keeping in view the observation of the Apex Court, in Samaresh Bose Vs Amal Mitra, AIR 1986, read the book by placing himself in the position of PW 6 and came to the finding that the book was obscene within the meaning of Section 292 of the IPC. He appears to have made an objective assessment of the book as a whole and came to the finding that the book was offensive and obscene. The findings of the learned courts below was based on objective and dispassionate assessment. There is no reason to discard their views. There is no impediment for the Judge to judge the obscene character of the book. The meaning of 'obscene' also came up before the Apex Court:- “Meaning and scope of the word obscene as used in Section 292 of the Penal Code came up for consideration before the Supreme Court of India in the case of Ranjeet D. Udeshi v. State of Maharashtra reported in AIR 1965 SC 881 , in connection with the question whether the provisions of Section 292, I.P.C contravene the fundamental right guaranteed under Article 19(1)(a) of the Constitution or not. While commenting on the test of obscenity as laid down in Hicklin's case (1868) 3 QB 360 their Lordships of the Supreme Court observed at page 888 of the report as follows:- “But even if we agree thus far, the question remains still whether the Hicklin test is to be discarded?” We do not think that it should be discarded. It makes the Court the judge of obscenity in relation to impugned book etc., and lays emphasis on the potentiality of the impugned object to deprave and corrupt by immoral influence. It makes the Court the judge of obscenity in relation to impugned book etc., and lays emphasis on the potentiality of the impugned object to deprave and corrupt by immoral influence. It will remain a question to be decided in each case and it does not compel an adverse decision in all cases.” 11. In the instant case the Courts below, to satisfy themselves read the book and held that the book was obscene capable of depraving the mind of young students whose minds are open to such immoral influence which brings the offence within the purview of Section 293 IPC. 12. From what has been discussed above, I find and hold that the judgment of the learned courts below call for no interference by this revisional Court. There is no infirmity in the judgment rendered by the learned Addl. Sessions Judge No.II, Tinsukia and as such, the same stands affirmed so far Section 293 IPC is concerned. However, I find no ingredient of Section 354 IPC. The petitioner, apart from touching her hand to give the book did nothing to outrage her modesty. His conviction under Section 354 IPC is set aside. The accused petitioner is directed to appear before the Trial Court within one month to serve out the sentence. 13. This revision is partly allowed to the extent as indicated above. 14. Send down the LCR forthwith along with a copy of this judgment and order for compliance.