Mohammed Raffi and Others vs State by the Inspector of Police, Tambaram P.S.

Janarthanam, J.—A cinema house going by the name National Theatre is located at Rajaji Street, Tambaram, Madras. One Mohammed

Raffi and One G. Annamalai are respectively the Operator and the Assistant Operator while one Venkatachalam and one K. Venugopal are

respectively the Manager and the booking Clerk.

An English film GIRL had been exhibited for the shows on 11.11.1990. At about 22.50 hours, the Inspector of Police, Tambaram along with

certain Police Personnel was on patrol duty in the vicinity of the said theatre. At that time, one of the viewers of the film exhibited in the theatre,

namely one Kesavan was said to have complained to the Inspector of the obscenity looming large in the film he had seen in the theatre.

Immediately thereafter the Inspector, after giving message through V.C.R. to the Superintendent of Police and on his instructions, raided the

theatre and seized the film reel GIRL containing the blue film attached to the regular film. Thereafter, a case in Crime No. 1852/90, D.1.

Tambaram Police Station had been registered for the alleged offence u/s 294(A) I.P.C. and Section 7(1)(b) of the Cinematograph Act, 1952

(Central Act XXXVII of 1952 - for short ''the Act'') impleading the Operator, Assistant Operator, Manager and the Booking Clerk as accused 1

to 4 respectively.

After complying with the formalities of the investigation, a final report u/s 173(2) Crl.P.C. had been laid for the alleged offences u/s 294(A)

I.P.C. read with Sections 7(1)(i)(a) and (b) of the Act, which was taken on file in C.C. No. 1283 of 1991 on the file of the Judicial Magistrate,

Tambaram.

Barring the Manager-accused 3, the rest of the accused, namely, Operator-accused 1, Assistant Operator-accused 2 and Booking Clerk-

accused 4 came forward with the present action invoking the inherent jurisdiction of this court u/s 482 Crl.P.C. to quash the criminal proceedings

initiated against them.

Learned Counsel appearing for the petitioners would press before me one principal objection founded on the combined operation of Section 5A

of the Act and Section 79 of the IPC to neutralize or nullify the prosecution launched against them. In support of such a contention, reliance is

sought to be placed upon the decision in Raj Kapoor v. Laximan 1980 Crl.L.J. 436 .

Before dealing with the bone of contention of learned counsel for the petitioners, as applicable to the facts of the present case, let me consider

the proposition of law laid down by the apex Court of this country in the aforesaid decision, in the light of the fact, of that case.

The facts of that case are very simple. A well-publicised film Satyam, Sivam, Sundaram became the subject matter of a prosecution, presumably

a pro bono public proceeding, against the producer, actor, photographer, exhibitor and distributor of that film. The complaint alleged that the

fascinating title was misleadingly foul and beguiled the guileless into degeneracy. If the gravamen of this accusation were true, obscenity, indecency

and vice are writ large on the picture, constituting an offence u/s 292 I.P.C. Learned Magistrate, before whom the complaint had been filed, after

examining some witnesses, took cognizance of the offence and issued process to all the persons accused of such an offence. Thereupon, the

producer of the film, one of the accused, moved the High Court u/s 482 of the Crl.P.C. on the score that the criminal proceeding was an abuse of

the judicial process and engineered by ulterior considerations and that no prosecution could be legally sustained in the circumstances of the case,

the film having been duly certified for public show by the Board of Censors. The High Court, however, dismissed the petition. The aggrieved film

producer had knocked at the doors of the apex court and pressed one principal objection founded on Section 79 I.P.C. to neutralise Section 292

IPC.

The amplification of the bone of contention, as argued before the apex court, is reflected thus:

Once a certificate sanctioning public exhibition of a film has been granted by the competent authority under the Cinematograph Act, 1952 (for

short ''the Act''), there is a justification for its display thereafter, and by virtue of the antidotal provisions in Section 79 of the Penal Code, the public

exhibition, circulation or distribution or the production of the film, even if it be obscene, lascivious or tending to deprive or corrupt public morale,

cannot be an offence. Section 292 IPC notwithstanding, the absolution is based upon the combined operation of Section 5A of the Act and

Section 79 of the Penal Code.

Affixing the seal of the approval to such an argument, the apex court quashed the prosecution and said thus:

Jurisprudentially viewed, an act may be an offence definitionally speaking: but a forbidden act may not spell inevitable guilt if the law itself declares

that in certain special circumstances it is not to be regarded as an offence. The chapter on General Exceptions operates in this province. Section 79

makes an offence a non-offence. When? only when the offending act is actually justified by law or is bonafide believed by mistake of fact to be so

justified. If, as here, the Board of Censors, acting within their jurisdiction and on an application made and pursued in good faith, sanctions the

public exhibition, the producer and connected agencies do enter statutory harbour and are protected because S.79 exonerates them at least in

view of their bonafide belief that the certificate is justificatory. Thus the trial court when it hears the case may be appropriately apprised of the

certificate under the Act, and. in the light of our observations it fills the bill under S.79 it is right for the court to discharge the accused as the charge

is groundless. In the present case the prosecution is unsustainable because S.79 is exculpatory when read with S.5A of the Act and the Certificate

issued thereunder. We quash the prosecution.

The facts of the case on hand is altogether different and distinct from the facts of the case decided by the apex court, as referred to earlier. The

materials collected during the course of investigation prima facie point out that the obscene scene is totally unconnected with the English film GIRL

and the obscene scene had been connected to the film GIRL and shown as part of the film, just prior to intermission. In such state of affairs, it

cannot at all be stated that the offending act of exhibition of the blue film containing the obscene scene, which is totally unconnected with the

censored film GIRL, is actually justified by law or is bonafide believed by mistake of fact to be so justified.

This apart, the salient provision adumbrated u/s 7(1)(i)(a) and (b) of the Act throws flood of light as to the burden of proof in case of altering

or tampering with in any way in any film after it has been certified. For understanding the efficacy and effect of such a provision, it is better to pen

down the same, which is as under:

Penalties for contravention of this pan-

If any person-

(a) exhibits or permits to be exhibited in any place-

(i) any film other than a film which has been certified by the Board as suitable for unrestricted public exhibition or for public exhibition restricted to

adults and which when exhibited, displays the prescribed mark of the Board and has not been altered or tampered with in any way since such

mark was affixed thereto;

(ii) any film, which has been certified by the Board as suitable for public exhibition restricted to adults, to any persons who is not an adult, or

(b) without lawful authority (the burden of proving which shall be on him), alters or tampers with in any filth after it has been certified.....he shall be

punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both, and in the

case of a continuing offence with a further fine which may extend to one thousand rupees for each day during which the offence continues....

A cursory reading of the provision so extracted would point out in no uncertain terms that the burden of proof in such an eventuality is on the

person responsible for the exhibition of the film. In the instant case, the material collected SO far, in the shape of the statements of witnesses

recorded u/s 161Crl.P.C. do prima facie reveal that the petitioners-accused 1, 2 and 4 and the Manager-accused 3, who is not before this Court,

are responsible for the exhibition of the film. Such being the case it is for the petitioners accused to prove, during the course of trial, that they did

not have any hand at all in altering or tampering with in any way the film GIRL, after it has been certified.

In view of what has been stated above, it goes without saying that the petition deserves to be dismissed even at the admission stage and is

accordingly dismissed.