Kerala High Court
Poovalappil David And Anr. vs State Of Kerala And Anr. on 26 July, 1989
Equivalent citations: 1989CRILJ2452
ORDER K. Sreedharan, J.
1. Petitioners are Manager and Managing Partner respectively of "Blue Diamond" theatre at Calicut. Sub-Inspector, Nadakavu Police Station and Probationary Sub-Inspector attached to that Station found the airconditioning unit attached to the theatre switched off while film was being exhibited in the theatre. Thereupon they registered a case for offence Under Section 420, r/w Section 34, I.P.C. After proper investigation they laid charge before Court for the said offence. Petitioners have approached this Court for quashing the charge Under Section 482 of the Cr. P.C.
2. A copy of the charge filed before Court is produced along with this petition as Annexure C. The averments made therein clearly bring out the ingredients of cheating as envisaged by Section 420, I.P.C.
3. Learned Counsel representing the petitioners submits that the averments made in the charge will not in any circumstance spell out the ingredients of Section 420, I.P.C. Learned Counsel proceeds to state that petitioners had never dishonestly induced any person to deliver any property to them. Nor have they deceived customers who have purchased tickets for viewing film. I find it difficult to agree with these submissions.
4. Blue Diamond Cinema Theatre is admittedly an airconditioned theatre. Licence obtained by 2nd petitioner, viz., F5-5843/87 is for running the theatre as an airconditioned theatre. Petitioners have held it out to be an airconditioned theatre as well. That representation made by the petitioners has the effect of making customers believe that in case they secure admission on purchasing tickets they will get comforts of airconditioning while viewing film. On account of that representation and on the belief that they will get comforts of air conditioning, they parted with money for purchasing tickets. After customers entered the theatre under the above belief, petitioners switched off airconditioning unit from 8.05 PM to 8.45 PM. By switching off the airconditioning unit petitioners saved electrical energy and thereby illegally enriched themselves. But for the petitioners' representation that the theatre has got air conditioning facilities customers would not have parted with their money to purchase tickets for entry into the theatre. After such entry, when airconditioning unit is switched off, the action of the petitioners will amount to cheating and they are liable for punishmen Under Section 420, I.P.C. Learned Counsel would contend that petitioners had not by any overs act disnonestly induced customers to purchase tickets by giving higher fare to have entry into the theatre. Hence, it is submitted that petitioners cannot be proceeded against for cheating. It is trite law that inducement need not be by express words. It is not necessary that the false pretence should be made in express words. It can be inferred from circumstances including conduct of the parties. Blue Diamond theatre run by petitioners held out to public as an airconditioned theatre. Advertisements of that cinema theatre is as an airconditioned theatre That advertisement is a representation to the public in general that customers will be provided with the facilities of airconditioning during film show. It is on that representation customers purchase tickets and seek entry into it. Viewed in this manner, I have no hesitation in holding that petitioners induced customers to purchase tickets for entry into the theatre on representation that they will be provided with facilities of airconditioning throughout the show. After admitting customers on this representation, they are alleged to have switched off airconditioning unit for illegally enriching themselves.
5. Sri P. V. Ayyappan, learned Counsel representing petitioners brought to my notice Clauses (8) and (9) of Rule 112 of the Kerala Cinemas (Regulation) Rules, 1986, hereinafter referred to as 'the Rules'. As per that Rule, a cinema theatre licensed as airconditioned theatre should have standby power supply to ensure adequate circulation of cooled fresh air. Such theatres should provide separate meters to measure energy consumed by airconditioning system. The energy meter should be read every hour during show. It further provides that airconditioning system should be commissioned before show begins and shall continue to function till the show ends including the period of interval. This provision of the Rule, if violated, is made punishable Under Section 10 of the Kerala Cinemas (Regulation) Act, 1958, hereinafter referred to as the Act'. In view of this specific provision in the Act, learned Counsel submits that the action of petitioners in switching off the airconditioning unit can at best subject them to penalties under the Act and not for offence under the Penal Code. In support of this argument, learned Counsel brought to my notice the decision in Raj Kapoor v. Laxman . The facts in the case are as follows : The film, 'Satyam, Sivam, Sundaram' produced by Raj Kapoor was granted "A" certificate by the Central Board of Film Censors under the Cinematograph Act, 1952, for its display in theatres. Respondent Laxman sought to prosecute Raj Kapoor contending that exhibition of the film will amount to offence Under Section 292, I.P.C. The Supreme Court considered the effect of "A" certificate granted by the Central Board of Film Censors assuming for the purpose of argument that the facts stated in the complaint, prima facie, attracted offence Under Section 292, I.P.C. Their Lordships observed (Para 7):
So it is that a special legislation viz. the Act of 1952, sets up a Board of Censors of high calibre and expertise, provides hearings, appeals and ultimate judicial review, precensorship and conditional exhibitions and wealth of other policing strategies. In short, a special machinery and processual justice and a host of wholesome restrictions to protect State and Society are woven into the fabric of the Act. After having elaborately enacted such a legislation can it be that a certificate granted under it by expert authority can be stulltified by a simple prosecution or a shower of prosecutions for an offence under Section 292, I.P.C. driving the producer to satisfy a 'lay' magistrate that the certificate of the Board of Censors notwithstanding, the film was offensive?
Their Lordships went on to state (Para 9):
The position that emerges is this. 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.
Thus, in view of the certificate issued by the Central Board of Film Censors, the exhibition of the film was held to be one not falling within the purview of Section 292, I.P.C. I fail to understand how this decision will help the petitioners. The Act and the Rules enjoin them to commission the airconditioning system through out the show including the period of interval. The violation of that provision subjects them to penalties. If those provisions allow them to switch off the airconditioning unit during show, they can successfully contend that their action would not amount to offence under the Penal Code. Further, offence now charged against the petitioners is for cheating the public which is an offence under the Penal Code. Proceeding against petitioners for violation of the provisions of the Act and the Rules can only be for violation of the provisions contained in them and not for offence committed against the public. So viewed, I do not find any ground to accept the petitioners' contention that petitioners can be proceeded against only for violation of the provisions of the Act and the Rules and not for offence under the Penal Code. The two provisions take in different situations. They do not overlap.
6. Learned Counsel appearing for the petitioner raised yet another contention. From Annexure A remand report it would appear that offence was detected by a probationary Sub-Inspector of Police. As per the provisions of the Act and the Rules, only a police officer not below the rank of a Sub-Inspector can enter a theatre for the purpose of seeing that the provisions of the Act and the Rules are being carried out. The Probationary Sub-Inspector who detected the offence is below the rank of Sub-Inspector and hence the action is unauthorised. I do not find any merit in this contention either. The action initiated against the petitioners is for offence Under Section 420, I.P.C, That offence is a cognisable offence. Any police officer who has information regarding the commission of a cognisable offence can initiate action. Viewed in this manner, I find no vice in the action taken by the police officer. Further the charge, Annexure C, makes it clear, that the offence was detected by the Sub-Inspector of Police and the Probationary Sub-Inspector of Police. Therefore, I overrule-this contention as well.
The result, therefore is, Criminal M.C. tails. It is accordingly dismissed.