Jeetendra vs Nand Kishore Agarwal

P.C Borooah, J.—This Rule is directed against an order dated May 19, 1971, passed by Sri S.N. Shome, Police Magistrate, Alipore, in case No. C2586 of 1970 issuing process against the Petitioner and others u/s 292 of the Indian Penal Code.

2 On August 29, 1970, the complainant-opposite party Nand Kishore Agarwala, claiming to be a member of the Cine Film Reform Association of India, filed a petition of complaint before the Suburban Police Magistrate of Alipore, against the Petitioner and against 17 other persons, inter alia, on the following allegations:

The Complainant went to the Rupali Cinema Hall at Ashutosh Mookerjee Road, Bhowanipore, on August 25, 1970, and saw a Hindi film entitled HUMZOLI after purchasing a ticket for the night show. He saw the film and considered it completely indecent and obscene. It was further stated in para. 18 of the said petition of complaint that the film in question contained scenes and postures of accused Nos. 1, 2 and 17 which lower the sacredness of the institution of marriage. It was also alleged, inter alia, in the said paragraph that there were scenes suggesting that illicit sexual relations were ordinary incidents of life. There were also scenes of illicit sexual relations, excessively passionate love scenes, indelicate sexual relations and situations and states of nudity.

The learned Magistrate examined the complainant on oath and passed an order u/s 202, Code of Criminal Procedure, for holding a judicial enquiry and report by October 19, 1970, by Sri J. N. Sarkar, Magistrate, First Class; Alipore. The said report was not received on October 19, 1970, and the learned Magistrate extended the date till November 16, 1970, On November 16, 1970, a report was received from the'' learned enquiring Magistrate and after scrutinizing the said report the learned Magistrate directed another enquiry by Sri S.L. Roy, Magistrate, First Class, and the learned Magistrate was directed to submit a, report by December 12, 1970. Thereafter the date for submitting the report of the second judicial enquiry was extended from time to time till May 12, 1971. On May 12, 1971, the complainant was present, but no report of the judicial enquiry was received and the learned Magistrate, dealing with the file of the Suburban Police Magistrate, extended the date up to June 9, 1971.

In the'' meantime, on May 19, 1971, the learned Police Magistrate, Alipore, perused the petition of complaint, the oral evidence of the complainant, recorded by the learned Magistrate holding the judicial enquiry as also the report of the said learned Magistrate and passed the impugned order issuing process against the Petitioner and five others u/s 292 of the Indian Penal Code. This order has been challenged in this Rule.

The aforesaid film after its production was placed along with an application for examination u/s 4 of the Cinematograph Act, 1952, before the Central Board of Film Censors, and the Board after examining the film issued on April 30, 1970, a ''U'' certificate, that is, a certificate permitting unrestricted exhibition of the said film throughout the Union of India u/s 5(A) of the said Act read with Rule 24 of the Rules framed under the Act. The fact that the film was given a ''U'' certificate has been admitted by the complainant-opposite party and process was also prayed for against Sri K. D. Dixit, who gave the said certificate for exhibition.

Mr. P. K. Chatterjee, learned Advocate appearing on behalf of the Petitioner, has submitted several grounds before us, according to which the impugned order should be quashed. One of the grounds taken is one of jurisdiction, namely, that the learned Suburban Police Magistrate by directing a second judicial enquiry and issuing process on the basis of the said enquiry report acted illegally and contrary to law and the provisions of Section 202 of the Code of Criminal Procedure, and the order is without jurisdiction. Mr. Chatterjee has in this connection referred to an unreported decision of this Court, namely, Netai Chandra Sen v. J.B. Ghosh and Ors. Unreported: Criminal Rev, No. 157 of 1961 decided on May 2, 1961 .

As we are of the view that Mr. Chatterjee is entitled to succeed on this point we do not think it necessary to consider or go into the other points urged by Mr. Chatterjee on behalf of the Petitioner.

In answer to Mr. Chatterjee''s point regarding jurisdiction, Mr. J. M. Banerjee, appearing on behalf of the State, has submitted that the Code of Criminal Procedure has ''nowhere debarred a learned Magistrate from ordering a second enquiry under the provisions of s, 202 of the Code and the facts of the unreported case cited by Mr. Chatterjee are factually different from the present case..

Mr. Agarwala, appearing on behalf of the complainant-Petitioner, has supported Mr. Banerjee in his argument and has submitted that the proceeding has not been vitiated by the learned Magistrate ordering a second enquiry.

The provisions of Section 202 of the Code of Criminal Procedure are attracted when a Magistrate, after examining the complainant and his witnesses present, if any, in accordance with the provision of Section 200 of the Criminal Procedure Code, thinks that he has some doubts or that lie would not be justified in issuing process without taking some further steps to ascertain whether the allegations made by the complainant are prima facie true or not. When he decides to postpone the issue of process, he should after recording his reasons for holding the process in abeyance, either enquire into the case himself or direct an enquiry, or investigation to be made by a Magistrate subordinate to him or by the Police or by any other person whom he considers to be suitable. The object of the enquiry or investigation u/s 202, Code of Criminal Procedure, is to ascertain the truth or falsity of the complaint, in other words, whether there is prima facie material in support of the complaint to justify the issue of process. When a Magistrate orders an enquiry or investigation by a subordinate Magistrate or by the Police or by any other person and a report is received the next step is to consider the result of such enquiry or investigation and thereafter follow the procedure prescribed by either Section 203 of the Code of Criminal Procedure, that is, the dismissal of the complaint or the procedure laid down u/s 204 of the Code, that is, issue of process. Even when a Magistrate makes the enquiry himself he is to follow the procedure laid down under either Section 203 or Section 204 of the Code of Criminal Procedure after conclusion of the enquiry.

Once an enquiry is ordered under the provisions of Section 202 of the Code of Criminal Procedure, a Magistrate "has no power to recall it and process cannot issue before the receipt of the report. In case the Magistrate enquires into the case himself he cannot after conclusion of that enquiry order a further enquiry by another Magistrate or direct another enquiry or investigation by the Police or by any other person. There is also no scope for the Magistrate directing the enquiring Magistrate or another Magistrate to undertake a fresh or further enquiry. That Section 202 of the Code of Criminal Procedure docs not contemplate a second or further enquiry or investigation is clear by the language of the section itself, and by the use of the words ''either or'' in Section 202(1), Code of Criminal Procedure, and by the use of the indefinite article ''an'' before the words ''enquiry or investigation''.

In the unreported decision cited by Mr. Chatterjee, the Magistrate after receipt of the report of the enquiry by a Magistrate had ordered a further enquiry by the same Magistrate. A.N. Ray J. in dealing with the legality of the order ordering a further enquiry by the same Magistrate observed as follows:

Report of the enquiring Magistrate was ordered on March 12 for the purpose of ascertaining the truth or falsehood of the complaint. It was open to the Police Magistrate either to accept the report or to reject it. On receipt of the report it was the duty of the Police Magistrate to consider the statement on oath, if any, of the complainant and the witnesses and the result of the enquiry u/s 202 and whether there was in his judgment no sufficient ground for proceeding or there was in his opinion sufficient ground for proceeding. If the learned Police Magistrate did not find that the report was not to his liking it was not, in my opinion, open to him to order a second enquiry. The enquiring Magistrate made the enquiry and submitted the report. His duty ended there. The duty of the Police Magistrate was thereafter either to take action u/s 203 of the Code whereby he could dismiss the complaint or to take action u/s 204 of the Code whereby he could issue process. Mr. Banerjee contended that there could be a second enquiry. Mr. Sen posed the question as to whether there could then be any limitation upon the number of enquiries directed by a Magistrate u/s 202. It would, in my opinion, be absurd to suggest that a cognizance Magistrate after receipt of a report by the enquiring Magistrate be allowed to fashion second or a third or a fourth report according to his likings or choice. Under Sections 203 and 204 of the Code a duty is cast upon the Magistrate as to whether there_ is in his judgment any sufficient ground for proceedings. After the receipt of the report u/s 202, the Magistrate has to exercise his judgment one way or the other in accordance with Sections 203 and 204 of the Code.

The old provisions of Section 202 of the Code of Criminal Procedure prior to its amendment in 1923 came up for consideration by g. Bench of this Court in the case of Haricharan Gorait v. Girish Chandra Sadhukhan ILR 38 Cal. 68. In that case the Chief Presidency Magistrate after examining the complainant directed the Police to enquire and report. After the investigation the Police Officer submitted his report, but the Magistrate referred the case to an Honorary Magistrate for further enquiry and report. It was held in that decision that the order directing the Subordinate Magistrate to enquire and report was not authorised by law. In coming to this decision their Lordships observed as follows:

Having directed such an investigation by a Police Officer, and having considered the result thereof, it was still open to him, in our opinion, if dissatisfied with the materials obtained, to direct a further local investigation or personally to make further enquiry and take evidence in the case. But if he thought proper to refer the case to some other Magistrate for an enquiry, other than a local investigation, he should, m our opinion; have transferred the case u/s 192 of the Code of Criminal Procedure to such Magistrate not for report but for disposal.

In view of what has been stated above it must be held that the order dated November''16, 1970, passed by Sri S.N. Shome, Suburban Police Magistrate, directing Sri S.L. Roy, Magistrate, First Class, to hold a further judicial enquiry and the order dated May 19, 1971, directing the issue of process u/s 292, Indian Penal Code, after considering the said report of Sri S.L. Roy, is illegal and without jurisdiction and the said orders must accordingly be quashed.

An enquiry u/s 202, Code of Criminal Procedure, is not intended to take the place of a trial; its only object is to "ascertain whether the complainant has made out a prima facie case which should be proceeded with. The object of the enquiry is also to prevent unnecessary harassment to the persons against whom process is sought by the complainant. In the instant case, it was also argued by Mr. Chatterjee, appearing on behalf of the Petitioner, that the learned Magistrate should not have issued process on the basis of the oral testimony of the complainant and his witnesses but should have scrutinized the primary evidence in this case, namely, the print of the film in question. This submission has also been made in para. 15 of the petition. Mr. Chatterjee further submitted that the object of this prosecution is to blackmail the accused Petitioner and the other persons against whom process was sought. Mr. Chatterjee also submitted that the association to which the complainant-opposite party belongs had on previous occasions made similar complaints in respect of other films, which had been duly granted censor certificates, and such complaints'' had been quashed by this Hon''ble Court.

In this particular case the film in question was examined and approved by the Central Board of Film Censors and. a ''U'' certificate was granted. The granting of a certificate by the Central Board, of Film Censors prima facie raises a presumption that the film in question cannot possibly contain scenes such as of indelicate sexual relations or nudity, etc. as it has been alleged in para. 18 of the petition .of complaint. On September 16, 1972., we directed the complainant-opposite party to file an affidavit before us to the effect that the statements made in para. 18 of the said petition of complaint filed before the learned Magistrate are true. After taking some adjournments the complainant-opposite party filed a supplementary affidavit on December 6, 1972, stating that the statements in paras. 18(a) to 18(k) of the petition of complaint filed before the Suburban Police Magistrate were true to his knowledge and belief. As this affidavit did not comply with our specific order we asked, the complainant-opposite party to file another affidavit. Ultimately on January 3, 1973, another affidavit was filed in which it was stated in para. 2 that the contents of para. 18 of the petition of complaint in sub-paras, (a) to (k) are true to his knowledge as he had himself witnessed the print of the film ''HUMZOLI''. In sub-para, (a) of para. 2 it was further stated--

The said averments in sub-paragraphs (a) to (k) of para. 18 are my impression on seeing the film at the Rupali Cinema Hall "at Ashutosh Mukherjee Road on 25.8.70.

Therefore, the complainant-opposite party has not come forward with an affidavit clearly asserting that what he has stated in para. 18 of the petition of complaint arc true. The learned Magistrate should, therefore, consider whether he should see the film in question before taking any further steps against the accused Petitioner and the others.

In. the result, this application succeeds. The Rule is made absolute. The orders dated November 16, 1970, passed by Sri S.N. Shome, Suburban Police Magistrate, Alipore, and all orders passed subsequent thereto are set aside. The Magistrate may proceed afresh from the stage reached prior to the order dated November 16, 1970, in accordance with law and in the light of the observations made above.

Chanda, J.

I agree.