Bombay High Court
Mahesh Waman Manjrekar vs The State Of Maharashtra And Anr on 1 March, 2022
Author: Surendra P. Tavade
Bench: Prasanna B. Varale, Surendra P. Tavade
Digitally
signed by
RUSHIKESH
RUSHIKESH V PATIL
V PATIL
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Date:
2022.03.01 13 WP.596.2022.doc
19:16:27
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 596 OF 2022
Mahesh Waman Manjrekar ...Petitioner
Versus
The State of Maharashtra & Anr. ...Respondents
WITH
WRIT PETITION NO. 604 OF 2022
Narendra Hirawat & Anr. ...Petitioners.
Versus
The State of Maharashtra & Anr. ...Respondents
****
Mr. Shirish Gupte, Sr. Advocate, a/w Mr. Harshad Bhadbhade a/w
Ms. Yashasvita Apte i/b Harshad Bhadbhade for the Petitioner in WP/
596/2022.
Mr. Aabad Ponda, Sr. Advocate a/w Mr. Swapnil Ambure, Mr.
Ravindra Suryawanshi, Mr. Arpit Choudhary and Mr. Archis Bhatt i/b
Bar and Brief Attorneys for Petitioner Nos. 1 and 2 in WP/604/2022.
Mr. Ashish Chavan a/w Mr. Jayesh Bhosle, Mr. Advait Helekar, Mr.
Prathamesh Gaikwad i/b Mr. Prakash Salsingkar for Respondent No.
2.
Ms. M. H. Mhatre, APP for Respondent No. 1-State in WP/596/2022.
Ms. S. D. Shinde, APP for Respondent No. 1-State in WP/604/2022.
Mr. Anil Phole, P.I. Mahim Police Station present.
****
CORAM : PRASANNA B. VARALE AND
SURENDRA P. TAVADE, JJ.
DATE : 01st MARCH, 2022.
P.C. :
R.V.Patil
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. Heard learned Senior Counsel appearing for Petitioners in both
petitions, learned Counsel for Respondent No. 2 and the learned APP for Respondent No.1-State.
2. These are two petitions at the instance of Director and Producer of the movie title as "Nay Varan Bhaat Loncha Kon Nay Konacha". Respondent No. 2 had approached the learned Special Court by submitting an application bearing Misc. Application No. 99 of 2022 raising the grievance in respect of trailer of the said movie displayed on the social media platform and particularly on "YouTube".
3. The submission of Respondent No. 2 before the learned Special Court was that the trailer contains sexually explicit contents involving minors. It also displayed use of obscene abuses, violence, indecent acts by minors and indecent representation of women. Now in the very application Respondent No. 2 herself submits that the said trailer is removed from YouTube, but is still available on the other online platforms and is being circulated. The trailer is downloaded and a CD containing the same, is fled along with complaint.
4. The learned Special Court by referring to the statement made in the application allowed the application and directed Senior Police Inspector of Mahim Police Station to investigate the case as per Section 156(3) of the Code of Criminal Procedure and to take appropriate action as per law.
5. Mr. Shirish Gupte, learned Senior Counsel for the Petitioner R.V.Patil 3 of 6 13 WP.596.2022.doc (Writ Petition No. 596 of 2022) vehemently submitted that the order passed by the Special Court is nothing but the result of non- application of the mind. Learned Counsel then invited our attention to the statements made in the petition. It is stated in the grounds that the trailer based on which the complaint is lodged is already withdrawn and further the movie is already released. Petitioner further states in the grounds that with an intention to show respect to the views expressed by complainant's association, the Petitioner herein immediately withdrew the said trailer though at the cost of repetition the Petitioner wishes to place it on record that the contents of the same were from the movie duly censored by the Censor Board. There is another specifc statement made in the grounds and clause 'G' which reads as " The Petitioner state that the movie does not contain any porn or involves or depicts a child having any act which will fall within the purview of POCSO Act."
6. The learned Counsel then submitted that apart from all the acts, which have been undertaken by the Petitioner bonafdely, namely removing of the trailer from the social media platform, categorical statement before this Court is that the movie does not contain any porn or involves or depicts a child having any act, which will fall within the purview of POCSO Act. The ofence alleged against the Petitioner provides the maximum punishment of seven years considering the instances where the police authorities in an undue haste were taking resort to an extreme action of efecting arrest. The Apex Court in the R.V.Patil 4 of 6 13 WP.596.2022.doc judgment of Arnesh Kumar V/s. State of Bihar and Another {(2014) 8 SCC 273} recorded important observations, our attention is invited to Paragraph Nos. 9 and 10 of the said judgment, read as under:
"9. Another provision i.e. Section 41-A Cr.P.C. aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalised. Section 41-A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), which is relevant in the context reads as follows:
"41-A. Notice of appearance before police officer.- (1) The police ofcer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable ofence, to appear before him or at such other place as may be specifed in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the ofence referred to in the notice unless, for reasons to be recorded, the police ofcer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police ofcer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the ofence mentioned in the notice.À The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41 (1) Cr.P.C., the police ofcer is required to issue notice directing the accused to appear before him at a specifed place and time. Law obliges such an accused to appear before the R.V.Patil
5 of 6 13 WP.596.2022.doc police ofcer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police ofcer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.P.C has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
10. We are of the opinion that if the provisions of Section 41 Cr.P.C which authorises the police ofcer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police ofcers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasis that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.P.C. for efecting arrest be discouraged and discontinued.À
7. Learned Senior Counsel Mr. Shirish Gupte as well as learned Senior Counsel Mr. Aabad Ponda appearing for the another Petitioners i.e. Narendra Hirawat and Shreyans Hirawant (Writ Petition No. 604 of 2022) submitted before this Court that Petitioners are ready and willing to extend all the necessary cooperation to the authorities of State of Maharashtra being law abiding citizens and the only expectation of the Petitioners is that the authority would follow the directions of the Apex Court in the judgment in letter and spirit. It is submitted before this Court that the police authority of Mahim Police Station, Mumbai, issued notice to one of the Petitioners i.e. Shreyans Hirawant, but the said notice was not taking recourse inconsonance with the observations in the judgment of Arnesh Kumar V/s. State of Bihar & Another.
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8. Mr. Gupte and Mr. Ponda learned Senior Counsel submitted that in view of the notice issued by Mahim Police Station, Petitioners are carrying apprehension that the police authority may take certain steps prejudicial to the interest of the Petitioners, hence, prayed for an interim protection. It is further submitted that if the police authorities of the State without following case of Arnesh Kumar, proceed against the Petitioners and take some action in an undue haste, the entire attempt of Petitioners approaching in this Court would be frustrated. Both the learned Counsel submitted that the Respondent No. 2 herself submits that the movie is now released in theaters after having the necessary censor board certifcate.
9. On perusal of the material placed on record and on hearing the learned Counsel appearing for the Petitioners, we deem it appropriate to issue notice to the Respondents making the same returnable on 22nd March, 2022. The learned APP waives notice for the Respondent No.1 -State in both the petitions.
10. Considering the facts, we are of the opinion that learned Counsel for the Petitioners made out the case for an interim order. Accordingly by way of the interim order, Respondent No. 1- State is directed not to take any coercive step / action till next date.
11. The parties to act upon an authenticated copy of this order. (SURENDRA P. TAVADE, J.) (PRASANNA B. VARALE, J.) R.V.Patil