Delhi District Court
Cross Word Entertainment Pvt. Ltd vs Gulshan Kumar on 23 October, 2015
In the Court of Ms. Shivali Sharma : Additional Senior Civil Judge
of Central District at Tis Hazari Courts, Delhi
MCA No.27/15
Unique ID no.02401C0471182015
In the matter of:
Cross word Entertainment Pvt. Ltd.
Through its Director
318, Sahara Shopping Center,
Faizabad Road, Lucknow226016,
Uttar Pradesh, India. ......Appellant
V E R S U S
1. Gulshan Kumar
13/83, Subhash Nagar,
New Delhi.
2. Central Board of Film Certification (CBFC)
Through Sh. Raj Kumar
Regional Officer, CBFC,
New Delhi.
......Respondent
Date of Institution : 07.09.2015
Reserved for Judgment : 12.10.2015
Date of Decision : 23.10.2015
JUDGMENT
1. Vide this order I shall dispose of an appeal against an ex parte adinterim injunction order dated 30.6.2015 passed by Ld. Trial Court. The appellant before this court is defendant No. 2 MCA No.27/15 Crossword Entertainment Pvt. Ltd. Vs Gulshan Kumar & anr. Page No. 1/10 before Ld. trial Court. Respondent No. 1 herein is the plaintiff before Ld. Trial Court and the respondent No. 2 herein is defendant No. 1 before the Ld. Trial Court. For the sake of convenience, parties shall be referred to by their nomenclature before Ld. Trial Court.
2. Plaintiff had filed a suit for permanent injunction against three defendants. Defendant No. 1 is the Central Board of Film Certification (CBFC), which is a statutory body under Ministry of Information and Broadcasting responsible for regulating the public exhibition of films under the provisions of Cinematograph Act, 1952. Defendant No. 2 is Crossword Entertainment Private Ltd., the production company of the Movie "Mohalla Assi" (hereinafter referred to as "the movie in question"). Defendant No. 3 is Sh. Chander Prakash Diwivedi., Director of the movie in question.
3. As per the case of the plaintiff, he had seen the trailor of the movie on his phone circulated through whatsapp at Rajinder Nagar, New Delhi on 25.6.2015. On 12.6.2015, the trailor of the movies was released and gone viral over the social media. In the said trailor, a character in the guise of Bhagwan Shiva is shown as a common street hustler and is seen using foul and abusive language. The trailor also shows women using abusive language. The trailor clearly shows that the said movie is hurting the religious sentiments of Hindu religion. The proposed date of release of the movie in question is 3.7.2015. Hence, the present suit has been filed seeking a restraint against the defendants, restraining them from releasing MCA No.27/15 Crossword Entertainment Pvt. Ltd. Vs Gulshan Kumar & anr. Page No. 2/10 the movie in question all over India with ban on its publicity and advertisement of the same until such time as the objectionable scenes are not removed from the movie.
4. On the very first date, when the suit was filed, Ld. counsel for the plaintiff insisted for grant of adinterim exparte injunction order restraining athe defendant from releasing the movie in question scheduled to be released on 3.7.2015. The Ld. trial court after hearing the submissions made on behalf of the plaintiff and seeing the CD of the trailor attached with the plaint, opined that the release of the movie may hurt the religious sentiments of the people. Accordingly, it was held that a prima facie case was made out in favour of the plaintiff. Vide order dt. 30.6.2015, an exparte adinterim injunction order was passed against the defendants restraining them from releasing the movie "Mohalla Assi" all over India scheduled to be released on 3.7.2015, till further orders.
5. The said impugned order has been challenged before this court.
6. In their written statement filed by CBFC/defendant No. 1 before Ld. Trial Court, it has been submitted that the certification of films in India is governed by Cinematograph Act, 1952 and the guidelines framed thereunder. All films in India are examined and given or refused certificate by CBFC under the procedure and parameters laid down under the Cinematograph Act, prior to their MCA No.27/15 Crossword Entertainment Pvt. Ltd. Vs Gulshan Kumar & anr. Page No. 3/10 release.
7. As regards the film in question, it is stated that an application for certification of the said film was submitted in the office of CBFC, Mumbai on 10.4.2014. The film was scheduled for screening on 22.4.2014, however, the producer did not appear for personal appearance. Thus, the examination process was not completed. Thereafter, the producer has not turned up till date and has also not paid the cancellation charges. Till date, CBFC, Mumbai had neither examined nor issued any certificate to the film in question. Thus, the question of release of the film does not arise.
8. Defendant No. 2 has filed a separate written statement wherein it has been alleged that no official trailor of the film in question was released on June 12, 2015 as alleged by the plaintiff. In fact no official trailor has been released till date. The trailor shown to the court by the plaintiff is an illegally downloaded unofficial trailor of the movie which has been reported in Times of India dt. 22.8.2015. There is no material on record to show that the proposed date of release of the movie in question is 3.7.2015. Also in the facts and circumstances of the case, no reasonable person can form an opinion that the exhibition of the film is likely to cause breach of peace and hurt religious sentiments before the Film Censor Board forms an opinion.
9. It is alleged that the suit is premature as till the movie in MCA No.27/15 Crossword Entertainment Pvt. Ltd. Vs Gulshan Kumar & anr. Page No. 4/10 question has not been examined or given any certificate by CBFC, the exparte adinterim injunction shall prejudice defendant No. 2 as the Film Censor Board while examining the film shall be affected by the said order. Even otherwise the court is not a competent forum to examine whether a movie can be released for public exhibition or not and court cannot interfere with or step into shoes of statutory authority set up for the said purpose.
10. Defendant No. 3 has also filed his separate written statement, wherein the suit has been objected to on similar grounds as raised by defendant no.2. It is alleged that unofficial video footage of the film has been circulated around showcasing the film in bad light with intent to pollute the mind of the masses so as to sabotage the film.
11. Defendant No. 2 has also placed on record before Ld. Trial Court as well as before this court a copy of order dated 2.9.2015 passed by Hon'ble High court of Madras in OA Nos. 960 and 961 of 2015 in CS No. 725/2015. The said application was filed before Hon'ble High Court of Madras seeking restraint against 37 defendants from facilitating access to web pages/web links thereby blocking all or any of the contents that relate to defendant No. 2's Copyrighted Film "Mohalla Assi". The interim application of defendant No. 2, wherein online piracy has been alleged and allegations have been made that the unofficial trailor of the movie in question has been released by some unscrupulous persons over MCA No.27/15 Crossword Entertainment Pvt. Ltd. Vs Gulshan Kumar & anr. Page No. 5/10 social media, has been allowed and the exhibition of the unofficial trailor/scenes of the movie in questions has been restrained for a period of four weeks vide order dated 2.9.2015.
12. In the present appeal, the impugned order has been challenged on the ground that the same is against the law laid down by superior courts, perverse, arbitrary, capricious and against the record. The impugned order is not supported by material on record and has caused undue hardship to defendant No. 2. The said order shall adversely prejudice the mind of Film Censor Board when the movie is sent to the Board for examination and for grant of certificate. The impugned order is contrary to the provisions of law as no reasonable person can form an opinion that the exhibition of the movie is likely to cause breach of peace and hurt religious sentiments. This opinion can also not be made by an court prior to examination of the film by CBFC. Ld. Trial Court has failed to appreciate the existence and role of film Censor Board which is a statutory body formed under Cinematography Act for the purpose of regulating the release of movies. The impugned order also suffers from infirmity as no opinion can be formed on the movie by seeing merely a two minutes trailor and without viewing the movie in its entirety.
13. Defendant No. 2 has relied upon various decisions of Supreme Court to stress upon the point that courts are not competent to whether a film can be released for public exhibition or not in the MCA No.27/15 Crossword Entertainment Pvt. Ltd. Vs Gulshan Kumar & anr. Page No. 6/10 absence of any order passed by the concerned authority, or otherwise interfere with step into the shoes of statutory authority. Stress has also been made on the judgments holding that the effect of words, titles and scenes in the film has to be judged from the standards of a reasonable, strong minded, firm and courageous man and not from that of weak and vacillating mind.
14. Per contra, it argued by Ld. counsel appearing for the plaintiff that impugned order is a reasoned order passed on the basis of the material on record and it deserves no interference from this court.
15. I have heard the submissions made and have carefully perused the record. I have also perused the CD placed on record by the plaintiff.
16. It is a settled law that before granting interim injunction in favour of the plaintiff, the court has to form an opinion that a prima facie case exist in his favour, balance of convenience lies in his favour and he is likely to suffer irreparable loss which cannot be compensated in term of money, in case the injunction is not granted.
17. In the present case, the plaintiff has filed the suit on the ground of release of official trailor of the film in question by the defendants and the expected release of the film on 3.7.2015. However, after considering the written statement filed by the MCA No.27/15 Crossword Entertainment Pvt. Ltd. Vs Gulshan Kumar & anr. Page No. 7/10 defendant as well as the documents filed on record, it has amply come on record that the trailor of the movie in question which was shown on social media was an unofficial trailor leaked without the knowledge of the defendant No. 2. Defendant NO. 2 has already initiated action against the said unofficial release by lodging complaint with Cyber Cell as well as obtaining injunction order from Hon'ble High Court of Madras.
18. From the material on record it is also amply clear that the movie in question is yet to be examined by CBFC under the provisions of Cinematography Act. CBFC is a statutory body formed under the said Act to regulate the certification of the films and its public exhibition. The Act provides detailed procedure, rules and regulations which have to be followed before a film can be certified for public exhibition. The film in question is yet to be examined by CBFC.
19. In these circumstances, without the examination of the film by CBFC, no injunction can be granted against release of the film in question till the objectionable scenes (as per plaintiff ) are not removed therefrom. Passing such an injunction order would amount to replacing the judgment of CBFC/Censor Board by that of the plaintiff herein, which is obviously an incorrect procedure. CBFC, which is a statutory authority formed for the said purpose, has to be given a fair opportunity to examine the film in question. Defendant No. 2 & 3 should also be given a fair opportunity to MCA No.27/15 Crossword Entertainment Pvt. Ltd. Vs Gulshan Kumar & anr. Page No. 8/10 represent their film before the Censor Board so that they can obtain a property certification for the same.
20. In case the injunction order as passed is not setaside, it would prejudice the decision of the censor Board which will be prejudicial to the interest of defendant No. 2.
21. As regards the interest of the plaintiff, the same is already protected as the film in question is yet to be examined by CBFC. It is not the case of the plaintiff that the CBFC is likely to unfairly examine the movie for any extraneous reasons.
22. In these circumstances, I am of the view that no prima face case is made out in favour of the plaintiff. Rather balance of convenience lies in favour of the defendant No. 2, who is being prejudiced doubly, firstly because of unauthorized release of trailor of his film and secondly by restricting his fair opportunity to represent his movie before CBFC for examination prior to its release. The defendant No. 2 & 3 are also likely to suffer irreparable loss in case the injunction as granted is not setaside as it would prejudice the CBFC and interfere with fair examination of the movie in question by the Censor Board.
23. In view of the reasons given above, the present appeal is allowed and impugned order dated 30.6.2015 is setaside.
MCA No.27/15 Crossword Entertainment Pvt. Ltd. Vs Gulshan Kumar & anr. Page No. 9/1024. The appeal file after due compliance be consigned to the Record Room. Trial Court Record be sent back along with a copy of the judgment. The parties are directed to appear before the learned Trial Court on date already fixed by Ld. Trial Court.
Announced in the Open Court on 23.10.2015 (Shivali Sharma) Additional Senior Civil Judge Central District: Tis Hazweari Courts: Delhi MCA No.27/15 Crossword Entertainment Pvt. Ltd. Vs Gulshan Kumar & anr. Page No. 10/10 MCA No.27/15 23.10.2015 Present: None.
Vide my separate judgment announced and dictated in the open Court, the appeal is allowed and impugned order dated 30.6.2015 is setaside.
The appeal file after due compliance be consigned to the Record Room. Trial Court Record be sent back along with a copy of the judgment. The parties are directed to appear before the learned Trial Court on date already fixed by Ld. Trial Court.
(Shivali Sharma) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi MCA No.27/15 Crossword Entertainment Pvt. Ltd. Vs Gulshan Kumar & anr. Page No. 11/10