Disposed

Nissar v. State of Kerala

Kerala HC25 Jul 2022Crl.MC/2521/2020

Case brief

AI extract

What is this about?

In a criminal miscellaneous appeal regarding IPC Section 292 and IT Act Section 67(A) offences, the High Court declined to invoke Section 482 Cr.P.C. to quash proceedings, directing the accused to seek a discharge in the trial court instead, closing the matter without prejudice.

What did the court decide?

Case closed without prejudice; liberty granted to approach the trial court with an application for discharge.

Nissar Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2022)

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Crl.M.C.No.2521/20

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 25^TH DAY OF JULY 2022 / 3RD SRAVANA, 1944

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CRL.MC NO. 2521 OF 2020

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AGAINST THE ORDER/JUDGMENTCC 264/2019 OF TEMPORARY JUDL.

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FIRST CLASS MAGISTRATE COURT, NJARAKKAL

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PETITIONER/ACCUSED:

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NISSAR, AGED 41 YEARS, S/O.MOHAMMED ALI, ALIYAM HOUSE, ILLATHUPADI, EDAVANAKKAD, ERNAKULAM 682 502,

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BY ADVS. K.A.JALEEL SRI.C.Y.VINOD KUMAR SRI.P.M.MANASH

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RESPONDENTS/STATE & I.O:

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1 STATE OF KERALA, REPRESENTED BY BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.

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2 THE SUB INSPECTOR, NJARAKKAL POLICE STATION, NJARAKKAL, ERNAKULAM 682 505.

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SRI.VIPIN NARAYANAN-PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.M.C.No.2521/20

O R D E R

The petitioner, who is the accused in Crime No.1099 of 2017 of Njarakkal Police Station, which is now pending as C.C.No.264 of 2019 before the Judicial First Class Magistrate Court, Njarakkal. Offences alleged against the petitioner are under Sections 292 of IPC and Section 67(A) of the Information Technology Act, 2000.

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The prosecution case is that, on 07.09.2017 at 3 pm, the Sub Inspector of Police, Njarakkal Police Station, conducted search in the shop namely Siyan Digital Studio at Edavanakkad, which is managed by the petitioner herein and seized an external hard disk from the computer. It is contended that the hard disk contained obscene images and videos of women and the same are kept for sale and thus committed the aforesaid offences. Annexure-A1 is the FIR and Annexure-A2 is the final report. This Crl.M.C. is filed for quashing all further proceedings pursuant thereto.

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Heard Sri.K.A.Jaleel, learned counsel for the petitioner and Smt.Seena C., learned Public Prosecutor for the State.

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Crl.M.C.No.2521/20

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The contention put forward by the learned counsel for the petitioner is that the materials placed on record along with Annexure-A2 final report did not attract the offences alleged against him. According to him, the mere possession of the obscene images are not sufficient to attract the offence. He placed reliance upon the judgments rendered in Abdul Rasheed v. State of Kerala [2008 (2) KHC 677] , Sharath Banu Digumarti v. Government of NCT of Delhi [(2017 (2) SCC 18] , Moidu v. State of Kerala [1989 (2) KLT 809] , Smitha and Another v. State of Kerala and Others [2019 (2) KHC 755] and Konnadan Adul Gafoor v. State of Kerala [2016 (3) KHC 478] . By placing reliance upon the same, it is contended that this is a fit case in which powers of this Court under Section 482 Cr.P.C is to be invoked.

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On the other hand, the learned Public Prosecutor would oppose the aforesaid contention.

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After hearing both sides, and perusing the records, I am of the view that, the aforesaid contention need not be considered at this stage of the proceedings. This is particularly because, the petitioner is having an ample remedy to approach the trial court raising this

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Crl.M.C.No.2521/20

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contention and seek for discharge. Since the petitioner is not availed such remedy, I am of the view that the petitioner can be relegated to do so.

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In such circumstances, this Crl.M.C. is closed without prejudice to the contentions of the petitioner, with liberty to approach the learned Magistrate by submitting proper application for discharge.

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Sd/-

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ZIYAD RAHMAN A.A.

JUDGE

DG/26.7.22

Crl.M.C.No.2521/20

APPENDIX OF CRL.MC 2521/2020

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PETITIONER ANNEXURES

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ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO. 1099/17 OF NJARAKKAL POLICE STATION ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-NJARAKKAL, ERNAKULAM. ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT IN CC NO 264/19 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-NJARAKKAL, ERNAKULAM

Nissar v. State of Kerala

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Nissar v. State of Kerala

Case brief

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