Gujarat High Court
Aamir Khan & 4 vs State Of Gujarat & on 8 May, 2015
Author: V.M.Sahai
Bench: V.M.Sahai
R/SCR.A/684/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 684 of 2008
With
CRIMINAL MISC.APPLICATION NO. 9333 of 2010
In
SPECIAL CRIMINAL APPLICATION NO. 684 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR
SAHAI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of
the judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of NO
India or any order made thereunder ?
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AAMIR KHAN & 4....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR MIHIR THAKORE, SENIOR COUNSEL assisted by MR SAMIK BHATT for
SINGHI & CO, ADVOCATE for the Applicant(s) No. 1 - 5
MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
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R/SCR.A/684/2008 JUDGMENT
VIJAY MANOHAR SAHAI
Date : 08/05/2015
ORAL JUDGMENT
1. The present Special Criminal Application is directed against the bailable warrants dated 27.3.2008 issued by the Chief Judicial Magistrate, Bhuj in Criminal Case No.763 of 2008 as well as for quashing and setting aside the complaint filed by respondent No.2 bearing Criminal Case No.763 of 2008.
2. It is the case of the complainant- Assistant Forest Conservator, Forest Protection, Kutch East Forest Department, Bhuj in the complaint that the petitioners have committed offences punishable under sections 2(16)(a)(b), 9, 27(4), 39, 48(a), 57 and 58 of the Wild Life (Protection) Act, 1972. It is alleged in the complaint that shooting of film "Lagaan" was done in the year 2000 at mouje Kunariya, Sumrasar, Bhuj by the petitioners and at that time, by letter dated 16.9.1999, petitioner No.2 demanded Chinkara from the Conservator of Forest, Kutch, Bhuj. Pursuant thereto, the Chief Conservator of Forest, Wild life, Gujarat State, Gandhinagar, by his letter dated 2.11.1999 refused to use Chinkara for filming. It is alleged that though the permission was refused for filming of Chinkara in film "Lagaan" to Aamir Khan Page 2 of 16 R/SCR.A/684/2008 JUDGMENT Productions Private Ltd., the responsible officers, i.e petitioners herein have illegally caught Chinkara from forest and kept it in their possession and made it run so as to shoot the film and at the end of shooting killed Chinkara and thereby prima-facie committed the offences punishable under sections 2(16)(a)(b), 9, 27(4), 39 and 48(a) of the Wild Life (Protection) Act, 1972. Ultimately, the complaint at Annexure-"A" to the petition is registered against the petitioners herein.
3. On receipt of the complaint, the learned Chief Judicial Magistrate, Bhuj issued bailable warrants against the petitioners by order dated 27.3.2008, i.e. the day on which the complaint at Annexure-"A" to the petition is filed. The said complaint came to be registered as Criminal Case No.763 of 2008.
4. Being aggrieved by the order dated 27.3.2008 as well as registering of Criminal Case No.763 of 2008, the petitioners have approached this Court by way of filing the present petition.
5. Initially, this Court issued notice by order dated 11.4.2008 making it returnable on 25.4.2008 and also granted ad-interim relief staying the operation and implementation of the order dated 27.3.2008 passed by the learned Chief Judicial Magistrate, Bhuj in Criminal Case No.763 Page 3 of 16 R/SCR.A/684/2008 JUDGMENT of 2008 as well as further proceedings thereof. Thereafter, this Court issued Rule and continued the interim relief till the final disposal of the petition by order dated 3.7.2008.
6. I have heard Mr.Mihir Thakore, learned senior counsel assisted by Mr.Samik Bhatt, learned advocate for Singhi & Co. for the petitioners and Mr.Mitesh Amin, learned Public Prosecutor for the respondents.
7. Mr.Mihir Thakore, learned senior counsel appearing for the petitioners has mainly contended that the complaint is based solely on the scenes in film "Lagaan" and even if the allegations made in the complaint are taken in its entirety, the same do not constitute any offences, much less the offences punishable under the charging sections of the Wild Life (Protection) Act, 1972. It is further contended by Mr.Thakore that the learned Chief Judicial Magistrate ought to have inquired into the complaint before summoning the petitioners as the entire complaint is based on assumption of imaginary facts.
8. Mr.Thakore further contended that on bare perusal of the complaint nowhere it had been disclosed as to in which manner the petitioners have hunted/injured Chinkara animal coupled with the fact that it does not discloses as to when Page 4 of 16 R/SCR.A/684/2008 JUDGMENT and from which place, the petitioners captured and injured or killed Chinkara animal. Mr.Thakore further contended that even the complaint does not discloses that the petitioners at any point of time have entered wild life sanctuary or after entering into sanctuary teased or molested any Chinkara and therefore it cannot be said that the petitioners have committed the offences under section 9 of the said Act. In his submissions, therefore, mentioning of sections in the complaint ipso facto does not constitute any offence as alleged in the complaint.
9. Mr.Thakore further contended that the petitioners are not residing within the territorial jurisdiction of the learned Chief Judicial Magistrate and the places of residence of the petitioners are far beyond the area in which the learned Chief Judicial Magistrate exercises his jurisdiction and in such eventuality the learned Chief Judicial Magistrate ought to have postponed or deferred the issuance of bailable process against the petitioners. Mr.Thakore further contended that the learned Chief Judicial Magistrate ought to have directed the inquiry under section 202 of the Code of Criminal Procedure before issuing the process. Mr.Thakore further urged that the complainant has not disclosed in his complaint or produced any authority letter authorising him to lodge the complaint in question. The respondent No.2 had Page 5 of 16 R/SCR.A/684/2008 JUDGMENT not made out any prima facie case against the petitioners, the complaint is false, frivolous and absurd which is required to be quashed and set aside in exercise of inherent powers under section 482 of the Code of Criminal Procedure, 1973.
10. On the other hand, Mr.Mitesh Amin, learned Public Prosecutor appearing for the respondents has opposed this petition by submitting that this is a very serious matter where the petitioners have used Chinkara who has been injured and after shooting was over, the petitioners killed it. Mr.Amin contended that though permission was refused by the Chief Conservator of Forest, Wild Life, Gujarat State, Gandhinagar, the petitioners herein have hunted/injured or killed Chinkara animal while shooting the film "Lagaan". Mr.Amin further urged that the petitioners have illegally captured Chinkara animal and kept it in their possession for shooting the film "Lagaan" and at the end of shooting killed Chinkara animal and thereby, the petitioners have committed serious offences as mentioned in the complaint. Mr.Amin urged that decision of the Apex Court Nupur Talwar Vs Central Bureau Of Investigation and another reported in (2012) 11 SCC 465 squarely applies to the facts of the case and while issuing bailable warrant on the complaint filed by the respondents, no scrutiny of the evidence has to Page 6 of 16 R/SCR.A/684/2008 JUDGMENT be adopted by learned Magistrate and mere prima facie satisfaction of him is sufficient that the case is made out against the accused. In his submission, therefore, tentative material is sufficient to issue bailable warrant against the accused which is yet to part with character of actual evidence and the defence of the accused cannot be looked into at the initial stage. Mr.Amin urged that in view of section 57 of the said Act, burden of proof is upon the petitioners to show that the petitioners have not used live animal in the film. Lastly, Mr.Amin urged that on the facts of this case, since prima case is made out against the petitioners, at this stage, this Court may not exercise its powers and requested to dismiss the present petition.
11. I have given my thoughtful consideration to the submissions made by learned counsel appearing for both the sides. I have also gone through the complaint along with other documents and material placed on record.
12. This Court proposes to first deal with Section 57 of the said Act in order to see that whether Section 57 of the said Act is applicable to the facts of the present case and the petitioners were under the legal duty to prove that they have not used live Chinkara for shooting. Section 57 of the Act reads as under.
"57. Presumption to be made in certain Page 7 of 16 R/SCR.A/684/2008 JUDGMENT cases.- Where in any prosecution for an offence against this Act, it is established that a person is in possession, custody or control of any captive animal, animal article, meat, [trophy, uncured trophy, specified plant, or part or derivative thereof] it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat [trophy, uncured trophy, specified plant, or part or derivative thereof]."
13. A bare perusal of Section 57 makes it clear that presumption under section 57 is only available when it is established that a person is in possession, custody or control of any captive animal or animal article, then in law, it will be presumed that burden lies on the said person to establish. In this case, there is no material on record which establishes that Chinkara was in custody or control of any captive animal or animal article of the petitioners. Therefore, there was no presumption against the petitioners as provided under section 57 of the Act.
14. At this stage, it would be fruitful to examine the decision of the Apex Court wherein the guidelines have been laid as to in which matters, the Court would be justified in quashing the FIR and resultant criminal proceedings. The Apex Court in Preeti Gupta and another Vs State Page 8 of 16 R/SCR.A/684/2008 JUDGMENT of Jharkhand and another, reported in (2010) 7 SCC 667 after following the decisions of the Court in R.P.Kapur Vs State of Punjab, reported in AIR 1960 SC 866 and in State of Haryana and others Vs Bhajanlal and others, reported in 1992 Supp (1) SCC 335 has laid down the following three principles on which criminal proceedings can be quashed which are reproduced as under:-
(i) where it manifestly appears that there is a legal bar against institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute
an offence, but there is no legal
evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
15. It is by now well settled that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may Page 9 of 16 R/SCR.A/684/2008 JUDGMENT while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
16. It is also well established by catena of judgments that inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of process of any court or otherwise to secure the ends of justice as well as where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
17. In the backdrop of the aforesaid factual position as well as settled legal position, this Court would like to examine the complaint as well as the order passed by learned Chief Judicial Magistrate, Bhuj. It is not in dispute that shooting of film "Lagaan" was done in the year 2000 at mouje Kunariya, Sumrasar, Bhuj by the petitioners and at that time, petitioner No.2 demanded Chinkara from the Conservator of Forest, Kutch, Bhuj by letter dated 16.9.1999 and in response thereto, the Chief Conservator of Forest, Wild life, Gujarat State, Gandhinagar, by his letter dated 2.11.1999 refused permission to use Chinkara for filming. At the time of hearing, Mr.Mihir Thakore, learned senior counsel Page 10 of 16 R/SCR.A/684/2008 JUDGMENT appearing for the petitioners has vehemently contended that the complaint is based solely on the scenes in film "Lagaan" which was digitally scanned from few films in London and after editing, colour correction inserted into scene of the film at studio in Mumbai and a copy of the above demonstration was also handed over to the authorities in Bhuj. Before filing the complaint, the Assistant Conservator of Forests, Kutch (East) Division on 24.10.2007 issued final notices to the petitioners that despite denial of permission for filming Chinkara, the petitioners had captured the filming for the film. On 15.11.2007, the petitioners informed through their advocate that they will contact Shri Pankaj Khandpur and will send him for giving the reply on 19.11.2007 at Bhuj and pursuant thereto, on 19.11.2007, the petitioners sent a signed statement of Pankaj Khandpur, Ex-Creative Director, Western Outdoor, Mumbai which is extracted below.
"Statement of Pankaj Khandpur, ex- Creative Director, Western Outdoor, Mumbai.
My name is Pankaj Khandpur, and I was the Visual Effects Supervisor, on behalf of Western Outdoor, on the feature film Lagaan, produced by Aamir Khan Productions in 2000-01. Our function was to provide visual effects and post- production inputs to the film (computer generated clouds, moon, stars, period restoration, credit titles etc.) Page 11 of 16 R/SCR.A/684/2008 JUDGMENT For the deed shots in the film, we selected existing 'stock' footage of deer from a few film libraries in UK, via the Laboratory in London used by us for the film. These shots were scanned digitally in London, and were then color-corrected and edited, or inserted, into the shots of the actors from the film. This was done by us in our Studio in Bombay, and re-output as a complete sequence on film negative in London. This new negative was delivered by us to the Producer of Laggan.
I have made a demonstration to the authorities today on this procedure.
a) How to select required existing stock footage from various (thousands) of digital catalogs available on the internet
b) How to insert (edit) these shots with existing actors to tell the story of the deer being hunted.
c) I have played a completely new sequence with these new library shots of deer mixed with existing shots of Laggan, to tell the same story of the deer being hunted.
d) As an alternative, I have also shown the same sequence, but this time, instead of deer, I have shown (existing stock footage again) a tiger being hunted.
I have handed over a copy of the above demonstration to the authorities in Page 12 of 16 R/SCR.A/684/2008 JUDGMENT Bhuj.
I certify that the above statement is true to the best of my knowledge and belief."
18. Upon careful examination, it is noticed that nowhere in the compliant, the complainant had mentioned the place, location from where and as to how, the injured Chinkara animal has been captured or hunted/injured or killed by the petitioners nor any carcass of Chinkara animal was found and only on the basis of scenes in the film "Lagaan", the complainant has based the present complaint. It is the contention of Mr.Amin, learned Public Prosecutor that at the initial stage when bailable warrant has been issued, this Court cannot scrutinize the evidence and the matter can be finally decided after leading the evidence by the parties before the trial Court. This Court does not find any force in the contention raised by Mr.Amin for the simple reason that the complainant has failed to mention as to in which manner, the petitioners have injured or killed Chinkara animal, but it is his own imagination in order to implicate the petitioners in the alleged offence. In absence of any factual evidence on record, it is very hard to establish or believe any case against the petitioners.
19. Considering the factual matrix as Page 13 of 16 R/SCR.A/684/2008 JUDGMENT emerges in the case on hand, no prudent person can ever reach a just conclusion that there is any legal evidence for proceeding against the petitioners-original accused. Admittedly, in the present case, there is no evidence worth the name to implicate the petitioners in the alleged offences.
20. The allegations made in the complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. It may be akin to a complaint where a person after seeing a movie files a complaint on the basis of some scenes shown in the film alleging that the scenes constitute a cognizable criminal offence punishable under the Indian Penal Code for which criminal proceedings is liable to initiated. In the present era of high-tech technology, citizens are everyday viewing cinema, videos and reading fictions demonstrating several acts of violation over human being as well as animals which are normally being created by using high technology in imaginary way in order to maintain interest of viewers at large for entertainment purpose only. On such imaginary scenes, if criminal machinery is set into motion, then it will be very hazardous for the society at large including it will be challenge to even investigating agency which will definitely create hindrance to the Page 14 of 16 R/SCR.A/684/2008 JUDGMENT investigation of genuine cases also. Criminal machinery can never be set into motion in absence of any physical evidence as regards to the commission of offence. In the instant case, admittedly, no physical evidence as regards to any violence upon Chinkara animal is available on record that too in the cinema itself, the Producer of the film "Lagaan" has made it clear that scenes in film are imaginary and fictional and no animal much less Chinkara is harmed. This Court is conscious of the fact that at this stage, defence of the petitioners cannot be looked into, but it is not defence, it is correspondence between the petitioners and respondents prior to filing of the complaint. Therefore, this Court would be justified to look into the correspondence which took place between the parties which is on record.
21. This court is conscious of the fact that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. In this view of the matter, I am of the considered opinion that this case falls in the category of rarest of rare cases as it leads to insurmountable harassment, agony and pain to the petitioners as well as to their reputation only on the imagination of the complainant of unknown facts. There is no evidence, the complaint is false, frivolous, imaginary and absurd which is required to be quashed and set aside in exercise Page 15 of 16 R/SCR.A/684/2008 JUDGMENT of inherent powers under section 482 of the Code of Criminal Procedure, 1973.
22. In the result, this petition succeeds and is allowed. The complaint bearing Criminal Case No.763 of 2008 pending in the court of learned Chief Judicial Magistrate, Bhuj as well as the bailable warrants issued by learned Chief Judicial Magistrate, Bhuj by order dated 27.3.2008 are quashed and set aside. Rule is made absolute. No order as to costs.
Since this Court has finally decided Special Criminal Application No.684 of 2008, Misc.Criminal Application No.9333 of 2010 needs no decision and stands disposed.
(V.M.SAHAI, ACJ.) pathan Page 16 of 16