Delhi High Court
Mr. R. Basu vs National Capital Territory Of Delhi And ... on 4 June, 2007
Equivalent citations: 2007CRILJ4254
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. Mr. Arun Aggarwal, a practicing Advocate has filed a complaint before the learned Chief Metropolitan Magistrate, under Sections 292, 293 & 294 IPC, inter-alia, against Star TV, Star Movies and V Channels as many as 30 (thirty) persons have been arraigned as accused persons in the said complaint. Other persons, apart from aforesaid Star TV channels, are the persons who are in charge of and responsible for the day to day affairs of these channels or the various cable operators transmitting these channels. This is termed as probono public prosecution by the complainant in which he brought to the notice of the learned Chief Metropolitan Magistrate that on these channels obscene and vulgar TV films were shown and transmitted through various cable operators. According to the complainant, this amounted to obscenity and, therefore, accused persons committed offence under Sections 292/293/294 IPC and under Section 6 read with Section 7 of the Indecent Representation of Women (Prohibition) Act, 1986. On this complaint, learned CMM viewed these films. Thereafter, on 9.4.1997, he ordered police inquiry referring to the police the issue as to 'who are the persons responsible for the exhibition of the firms?. After the police report was received, the complainant was examined on 17.7.1997. Thereafter, arguments were heard and impugned order dated 24.9.97 was passed, prima facie finding that the four films shown on these TV channels as obscene and taking cognizance, accused persons No. 1, 2, 4, 5 & 7 to 30 (i.e. except accused No. 3 & 6) were summoned under Section 292 IPC, Section 4 read with Sections 6 & 7 of the Indecent Representation of Women (Prohibition) Act, 1986 and Section 5A read with Section 7 of the Cinematograph Act, 1952. Challenging this summoning order, these petitions are filed by accused No. 5, 8 & 22.
2. Before adverting to the nature of challenge on the basis of which petitioners seek quashing of the proceedings, it would be necessary to scan through the impugned order which is very detailed one running into twenty two pages. In this order after highlighting that TV as a power, which like all other power, can be used for constructive as well as destructive purposes; highlighting importance and significance of television and its impact on the life of public; explaining the concept of freedom of speech as enshrined under Article 19(1)(a) of the Constitution and the reasonable restrictions which can be imposed thereupon, the learned Judge proceeds to comment upon the tendency of showing obscene programmes on TV. There is also a discussion, in the impugned order, about the effect of movies on children. Thereafter, he has commented that it is the right of every nation to maintain a decent society and in view of Article 19(2) of the Constitution of India, various legislations have been enacted by the Parliament which are named in the impugned order including Cinematograph Act, 1952, Indecent Representation of Women (Prohibition) Act, 1986 and Cable Television Network (Regulation) Act, 1995 and Indian Penal Code. The learned Judge, thereafter, examines in detail the issue of censorship in the light of various judgments given by the Supreme Court from time to time, the guidelines issued by the Censor Board and also provisions of some statutes in this behalf. In this perspective, the learned Judge then explains the contents of four movies which were shown on Star TV and finds them as obscene and, therefore, summons the accused persons as mentioned above. Without going into the other aspects of the order, it would be, however, apposite to reproduce the discussion dealing with the law on censorship and the infringing films. These portions of the order are extracted below which are self-speaking:
CENSORSHIP Censorship is permitted mainly on the ground of social interests specified under Article 19(2) with emphasis on maintenance of values and standards of society. Censorship by prior restraint, therefore, seems justified for the protection of society from the ill effects that a motion picture may produce if unrestricted exhibition is allowed.
It is because of this 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, pre-censorship and conditional exhibitions and wealth of other policing strategies. In short a special machinery and processnal justice and a host of wholesome restrictions to protect State and society and woven into the fabric of the Article If the Board blunders, the Act provides remedies. By amending Act 49 of 1981 the Appellate Jurisdiction against the orders of the Board was transferred from Central Govt. to an independent tribunal whose Chairman is a retired Judge of a High Court or is a person who is qualified to be a Judge of a High Court.
The film Censor Board is specially entrusted to screen off the silver screen pictures which offensively invale or deprave public morals through over sex.
In the case of Raj Kapoor v. Laxman the Supreme Court held that all freedom is a promise, not a menace and therefore, is subject to specially necessary restraints permitted by the Constitution. Having regard to the instant appeal of the motion picture, its versatility, realism and its co-ordination of the Visual and aural senses, what with the art of the cameraman with trick photography, vistovision and these dimensional representation, the celluloid art has greater capabilities of stirring up emotions and making powerful mental impact so much so that the treatment of this form of art on a different footing with pre-censorship may well be regarded as a valid classification as was held in K.A. Abbas .
In S. Rangarajan's case (Supra) the Apex Court observed:
The Censors Board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of the country. The Moral values in particular should act be allowed to be sacrificed in the guise of social change or cultural assimilation. Our country has had the distinction of giving birth to a galaxy of great sages and thinkers. The great thinkers and sages through their life and conduct provided principles for people to follow the path of right conduct. There have been continuous efforts rediscovery and reiteration of those principles. Adi-guru Shankaracharya, Ramanujacharya, Madhwacharya Chaitanya Maha Prabhu, Swami Ram Krishan Paramhansa, Guru Nanak, Santikabir and Mahatma Gandhi have all enlightened our path. If one prefers to go yet ethical code from Tiruvalluver teaching which is a general human morality and Isdom'. Besides, we have the concept of 'Dharam' (righteousness in every respect) a unique contribution of Indian Civilization to humanity of the world. These are the bed rock of our civilization and should not be allowed to be shaken by unethical standards. We do not however mean that the Censors should have an orthodox or censervative outlook. Far from it, they must be responsive to social change and they must go with the current climate. All we wish to state is that the Censors may display more sensitivity to movies which will have a markedly deleterious effect to lower the moral standards of these who see it.
In Raj Kapoor's case Justice Iyer expressed in words meaningful a similar thought that the ultimate censorship over the Censors belongs to the people and by indifference, laxity or abetment, pictures which pollute public morals are liberally certified the legislation, meant by Parliament to protect people's good morals, may be sabotaged by statutory enemies within.
Section 54 states that if after examining a film or having its examined in the prescribed manner, the Board considers that the film is suitable for un-restricted public exhibition, such a certificate is given which is called 'U' certificate.
Section 58 provides principles for guidance in certifying films. It is significant to note that Article 19(2) has been practically read into Section 5(B)(1). Section 5(c) confers right of appeal to tribunal against refusal of certificate. Under Section 6 of the Act, the Central Government has revisional power to call for the record of any proceedings in relation to any film at any stage, which it is not made the subject matter of appeal to the Appellate Tribunal.
Under Section 8 of the Act, the Rules called the Cinematograph (Certification) Rules 1983 have been framed. Under Section 58(2) the Central Government has prescribed certain guidelines for the Censors Board.
Guideline (1) relates to the objectives of film censorship. The Board shall ensure that : (a) the medium of film remains responsible and sensitive to the values and standards of society, (b) artistic expression and creative freedom are not unduly curbed and (c) censorship is responsive to social change.
Guideline (2) requires the Board to ensure that
(i) antisocial activities such as violence is not glorified or justified;
(ii) two modus operandi of criminal or other visuals or words likely to incite the commission of any offence are not deposited.
(iii) pointless or avoidable scenes of violence, cruelty and horror are not shown;
(iv) the sovereignty and integrity of India is not called in question;
(v) the security of the State is not jeopardised or endangered;
(vi) friendly relations with foreign states are not strained and
(vii) public order is not endangered.
Guideline (3) also requires the Board to ensure that the film; (i) is judged in its entirety from the point of view of its overall impact and (ii) is examined in the light of contemporary standards of the country and the people to whom the film relates.
The most important guidelines which are heard of the matter in so far as television viewing is concerned are guidelines 4 to 6 which are as under:
(4) Films that meet the above mentioned criteria but are considered suitable for exhibition to non adults shall be certified for exhibition to adult audience only.
(5)(1) while certifying films for unrestricted public exhibition, the Board shall ensure that the film is suitable for family viewing, that is to say the film should be such that all the members of the family including children can view it together.
(2) If the Board having regard to the nature, content and theme of the film, is of the opinion that it is necessary to caution the parents/guardian to consider as to whether any child below the age of twelve years may be allowed to see such a film, the film shall be certified for un-restricted public exhibition with an endorsement to that effect.
(3) If the Board having regard to the nature, content and theme of the film, is of the opinion that the exhibition of the film should be restricted to members of any professional or any class of persons, the film shall be certified for public exhibition restricted to the specialised audience to the specified by the Board in this behalf.
(6) The Board shall scrutinise the titles of the films carefully and ensure that they are not provocative, vulgar, offensive or violative of any of the above mentioned guidelines.
T.V. FOR FAMILY VIEWING The Upshot of the entire discussion is that the programmes, serials, films on TV have to be such that are suitable for family viewing that is to say that all the members of the family including children can view it together. In other words only such programmes can be filmed which are fit for a 'U' Certificate.
THE REGULAtorY SYSTEM The television today is a big commercial industry. There has been a haphazard mushrooming of cable television networks all over the country during the last few years as a result of all the availability of signals of foreign television network via satellites. The programmes available on these satellite channels are predominantly western and totally alien to our culture and way of life. Such programmes play havoc with the moral fabric of the society and need to be regulated. In the 46th year of the Republic of India, the Parliament came out with law to regulate the operation of the cable television networks in the country. The cable operators have certain obligations towards the society in seeing that do not display programme of foreign channels which certain anti national broadcast, Obscene, indecent and vulgar programmes and operate within the framework of the laws of the land. For example the Cinematograph Act 1952, the Copy Right Act, 1952 and the Indecent Representation of the Women (Prohibition) Act, 1986.
Section 5 of the Cable Television Network (Regulation) Act, 1995 provides that no person shall transmit or retransmit through a cable service any programme unless such programme is in conformity with the prescribed Programme Code. The central Govt. has made rules known as the Cable Television Network Rules, 1994 which have prescribed a Programme Code under Rule 6. No programme should be carried in the Cable Service which inter-alia offends good taste or decency, contain anything obscene; Denigrates women through the depiction in any manner of the figure of a women, her form or body or any part thereof in such a way as to have the effect of being indecent or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals; denigrates children; Contravenes the provisions of the Cinematograph Act.
Mention may also be made of Rule 6(3) which permits programmes for adults after 11 p.m. and before 6 a.m. and Rule 6(5) that programmes unsuitable for children must not be carried in the cable service at times when the largest number of children are viewing. These sub rules cannot overweigh the sweep of the Rule 6(1) or negate the standards laid therein. In fact besides the Rule 6(1)(9n), language of Section 21 of the Cable Television Network (Regulation) Act 1995 specifically provides that, the provisions of the Act shall be in addition to, and not in derogation of interalia the Cinematograph Act, 1952. As already stated in detail herein before, the cinematograph film when exhibited on television can be meant for family viewing for which 'U' certificate is granted by the Board of Censors under Section 5A of the said Act.
As regards the Indecent Representation of Women (Prohibition) Act, 1986, the act was enacted because inspite of the law relating to obscenity in this country codified in Section 292 to 294 of the IPC, there is a growing body of indecent representation of women or references to women in publications, particularly advertisement etc. which have the effect of denigrating women and are derogatory to women. According to Section 2(c) of the Act the Indecent Representation of Women means the depiction in any manner of the figure of a women, her form or body or any indecent or derogatory to, to denigrating women or is likely to deprave corrupt or injure the public morality or morals.
Section 4 of the act provides that no person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form. Thus indecent representation of women even in film is prohibited. Section 6 of the act provides penalty for contravention of Section 4 which extends to two years and with fine. Section 7 of the act provides that where an offence under this Act has been committed by a company, every part on, who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The offences under the act are cognizable and believable in view of the Section 8 of the Act.
MOVIES ON STAR TV Coming now to the complaint of the activist advocate regarding movies that have been displayed by the Channel 'Star Movie' through Cable Operators arrayed at serial No. 7 to 30 of the complaint. The complainant has placed on record video cassettes Ex. CW1/1 to Ex. CW1/4. These are the video-cassettes of movies titled "Dance of the Damned", "Stripped to Kill", "Big Bad Mama" and "The Jigsaw Murders". These cassettes were displayed to the court.
The movie "Stripped to Kill" is a murder mystery. A night club topless dancer is killed. A lady copy also becomes a topless dancer and mixes with the topless night dancers. Another murder takes place by a masked man. Ultimately she is able to solve the murder mystery and kills the murderer by pouring petrol on him.
There is no story worth the name. The movie is full of nude, obscene and topless dancers. In a dance in progress, dancer shouts at Bob. You Bastard, you killed, you son of a bitch. The dancer dances stripping her clothes. These are scenes of love making. The language is filthy, vulgar and indecent. For example, a lady to the Manager of the Dance Group says; "Angel's Fucking Dead". During the dance, the dancer shouts at Bob "You bastard, you killed, you son of a bitch". The dance contains expression like : "O Fuck Roxy; says : "I want you to see me naked". The topless dancing to shown number of times. The scenes in the move are repulsive, filthy, indecent, obscene and show indecent representation of women.
The other film "Dance of the Damned" is also about a dancer. Her husband is a richman. She gives birth to a son after divorce. A vampire chosed to kill her. However, he starts liking her and changes his plan to kill her and released her. The film contains topless dances various times and also contains love making scene.
"The Jigsaw murder" is a movie in which a female model was killed and her body was cut into pieces and each piece was placed at different locations. The detective tried to find the killer. The daughter of detective aspires to become a model. The detective finds her photograph in Mosley's Studio. He wants her daughter to keep away from him. She refuses. One day Musley abducts her and takes her to a lonely place. There he makes her wear swimsuit and takes her photographs. He asks her to be topless. She refuses. She remains in the captivity of Mosley. The detective finds her. There is fight. Finally the daughter shoots down Mosley.
The film contains topless dancing and uses filthy language and shows women in an indecent form.
"Big Bad Mama" is another movie which was shown on the channel. In this movie also there is no proper story. The rick over night and enjoy life. They do what they see their mother doing. They are caught by the police. The police is bribed. The girls go to a place where men are having party time, drinking, playing cards and watching a women dancing almost naked. They also join the dance on stage and imitate her strip dancing. The mother reaches there and feels upset. She takes out her revolver and runs with them after collecting all the cash on board. They are chased by notice. They check into a hotel. The next day the mother visits bank where armed robbers storm in. She takes the opportunity and collects the cash from the counter and runs away. One robber manages to jump on the car. They become partners. The next day they are at race course. There she falls for another man and he also joins their gang. All of them commit crime together. They abduct daughter of a rich man who pays them ransom but the police follows. Her partners are killed in the firing. She is badly injured and ultimately dies.
The film contains various topless dance sequences. A topless lady is also shown pulling down her skirt. They lady is standing nude showing her back. There are totally nude love making sequence. A couple is shown nude in bed. A girl is trying to seduce a man, topless and then nude.
There is no theme in these films. These films offensively invade and deprave public moral through over sex.
The film directors practise what Oscar Wilde observed - "moderation is a fatal thing. Nothing succeeds like success". These films are not conducive to the values and standards of our society. The over all impact of these films, judged in their entirety, is that these tend to deprave the morality of the audience. These movies are not meant to e watched by public at large including young and adolescents. These are indecent to women and obscene having regard to the existing standards of decency and morality of our society. An average moral citizen, watching these movies would feel embarrassed or disgusted at a naked portrayed of life without the redeeming touch of art or genius or social value. These movies are exploiting sex commercially.
Applying the test of obscenity as laid down by the Apex Court in K.A. Abbas (Supra), Raj Kapoor and Ors. (Supra) Bobby Art International etc. v. Om Pal Singh and Ors. 1996 IV A.D. SC 231 it is clear that these movies prima facie contravene the provisions of Section 292 IPC. besides Section 4 read with Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986. Moreover these movies cannot be exhibited without the necessary certificate from the Censor Board Certificate or films is necessary under Section 5A of the Cinematograph Act, 1952. Section 7 provides the penalty for exhibition or permitting the exhibition in any place by any person of any film other than the film which has been certified by the Board as suitable for un-restricted public exhibition or for public exhibition restricted to adults. The movie channel with the help of cable operators by use of decoder cards have displayed these movies through cable network from their respective places. Every ordinary antenna cannot receive the signal of the Star movie channel displaying these movies. It is with the help of decoder that accused No. 7 to 30 have been receiving scrambled signal and descramble them to the ultimate viewers. An application was even filed before this Court by the President All India Aavishkar Dish Antenna Sangh that he has collected near about 100 decoders and also intends to produce the decoder cards of Star Movies. Viewing of these by movies by the public at large, from the Star Movie Channel would not have been possible without the display by these Cable operators.
The report on the Video cassettes of these English films was called from the Crime Branch in which it is mentioned that Sh. Ruper Murdoch is the Proprietor of the Star TV Network for the entire World while Sh. R.K. Basu is the official who works for Sh. Ruper Murdoch and is in charge of entire transmission for our country. It is also mentioned in the report that in addition to these persons the cable operators with their details given in the report are responsible for exhibition of the programmes of Star Movies to the public at large. It is also clear from the testimony of the complainant.
3. May be, detailed discussion on various aspects, including lecture on morality, was not needed. We are concerned with the contents of the movies shown on T.V. Prima facie view of the learned CMM that the movies are obscene in nature is not questioned before me. That is a matter of evidence, in any case. It seems that petitioners are conscious of this fact. Therefore, they have not challenged the impugned order on this aspect. Obviously, in a case like this, argument had to be of technical nature and that is precisely the course of action adopted by the counsel for the petitioners.
4. As far as the four movies are concerned, what is stated is that they all had been aired after dark time slots after 11.30 PM by the broadcaster keeping in view the various restrictions imposed under various statutory provisions. It is also mentioned that two movies namely "Dance of Damned" and "Stripped to Kill" have certificates issued from the Central Board of Film Censors with following particulars:
1) Stripped to Kill- Certificate No. - 2309-A
Date of Issue - 7.1.1994
2) Dance of Damned - Certificate No. - 1364-A
Date of Issue - 22.3.1990.
5. With regard to other two movies it is admitted that they have no censor certificates. However, it is stated in respect of the movie "Big Bad Mama", the application for certification had been made to the CBFC. It is further stated that these movies are telecast from other countries via satellite and the broadcasters in their channels comply with various strict internal codes as also statutory codes prescribed by the Broadcasting Authority of the place of uplink. In respect of some of individual accused persons, it is also contended that they are not responsible for telecast of these movies.
6. Apart from above, the grounds which are common to all the petitions on the basis of which it is argued that the summoning orders as well as proceedings are without jurisdiction are the following:
I. The entire procedure followed before the issue of process was totally illegal in as much as:
(a) Section 200 of Cr.P.C. mandatorily requires the examination of complainant before any further step is taken: AIR 1035 Allahabad 745; AIR 1942 Peshawar page 61; AIR 1949 Calcutta page 58; AIR 1950 Calcutta page 99; AIR 1956 Madras 129.
(b) He ordered a police enquiry in which the major issue to be investigated should have been whether the four films had been certified under Section 5-A of the Cinematograph Act, 1952. The police never investigated this. The learned Magistrate did not apply his mind to this. Two of the four films were proved to be certified and the remaining two were not proved to be uncertified.
II. The Indecent Representation of Women (Prohibition) Act, 1986 does not at all apply to films which are governed by Cinematograph Act as provided in Section 4 Proviso (c) of the Act.
III. He acted without jurisdiction in issuing the process under Section 292 of the Indian Penal Code because he did not notice Section 5-A of the 1952 Act.
IV. The police had asked the accused's explanation about the company's involvement. The accused had supplied the full explanation by their reply dated 19th December, 1998. The police report on which the learned Magistrate acted said that Rupert Murdock is the proprietor of Star T.V. Network and Basu is his official In-charge of entire transmission for India. There is no such entity much less a proprietory entity. Star T.V. is only a short form of Satellite Television Asian Region Limited - a company registered in Hong Kong.
V. Accused 7 to 30 are cable operators in India and the signals are supplied by the Hong Kong company with which accused No. 1 to 6 have nothing to do. In any event he has issued no process against accused No. 3 & 6.
7. I take up all these arguments for consideration seriatim.
8. Re : - Procedure under Section 200 Cr.P.C.: As per the procedure laid down in the aforesaid section a Magistrate is to examine the complainant and the witness present, if any. It is on this basis, the submission is that the learned MM was under obligation to examine the complainant and his witnesses, if any, in the first instance before proceeding further. However, instead of doing so, he ordered a police inquiry which course of action was not permissible and, therefore, mandatory procedure as laid down in Section 200 Cr.P.C. is not followed and summoning orders be quashed on this ground itself.
9. This contention may appear to be attractive in first blush but is not tenable in the facts and circumstances of this case. No doubt, on receipt of the complaint, the learned CMM passed the order dated 9.4.1997. However scope of the police inquiry was specific to the issue as to 'who are the the persons responsible for exhibition of the films'? It was apparently done as in the complaint filed by the complainant, he had brought to the notice of the learned CMM that on Star TV, Star Movies, V. Channel, the aforesaid movies were shown which were obscene and vulgar. The complainant had arraigned as many as thirty persons as accused persons. The learned CMM wanted to first know as to who are the persons responsible. Therefore, limited inquiry by the police on the aforesaid aspect was ordered. After the police report was received, the learned CMM ritually followed the procedure laid down in Section 200 of the Code. The complainant was examined on 17.7.1997 and arguments were also heard. Only thereafter the summoning orders were passed. Section 200 of the Code mandates that examination of the complainant is necessary before taking cognizance that procedure was followed by the learned trial court. It would be of interest to note that even where complainant is not examined and cognizance is taken on the basis of the allegations and stating that those allegations in the complaint clearly make out the offence, non examination of the complainant would not vitiate the order of cognizance. Such a defect is held to be curable under Section 464 of the Code in Dipak Ghosh dustydar v. Sant Kumar Mukherjee 2003 (1) Crimes 297 (Cal). What is to be seen is as to whether accused were prejudiced in any manner. When the learned trial court followed the aforesaid procedure. Obviously, there is no prejudice nor was even there attempt made to show this prejudice. Section 461 of the Code lays down list of irregularities which would initiate the proceedings. The alleged irregularity is not the one which is stipulated therein. In Sourindra Lal v. Latika Das - 1977 CrLJ 405, Division Bench of Calcutta High Court held that non compliance with the provisions relating to recording of statement and substance of examination does not vitiate the proceedings. As pointed out above, here it is not even the case where the complainant was not examined before taking cognizance.
In so far as the other submission that police inquiry had been ordered to find out as to whether four films had been certified under Section 35A of the Cinematograph Act or not would be dealt with while considering the submission No. 3 below.
10. Re : - Indecent Representation of Women (Prohibition) Act : The submission was that provisions of this Act do not apply to films which are governed by the Cinematograph Act. Section 4 is in Part II of the Act which deals with "Certification of films for public exhibition". This part provides under Section 3 of the Act that there shall be Board of Film Certification. It is this Board which is to certify the films for public exhibitions. Under Section 4 any person desiring to exhibit any film has to apply to the Board for certificate in respect thereof. After examining or having the film examined, the Board may given the certificate in prescribed form. It may sanction the film for unrestricted public exhibition or sanction the film for public exhibition restricted to adults or sanction the film for public exhibition restricted to members of any profession or any class of pesons, having regard to the nature, content and theme of the film or may direct removal of certain scenes or modifications in the film before sanctioning the film for public exhibition under the aforesaid two categories or refuse to sanction the film for public exhibition.
No doubt, once the film is certified for public exhibition either for unrestricted public exhibition or public exhibition restricted to adults, the said film is shown to the particular category, the producer or any other person cannot be charged for offence under the Indecent Representation of Women (Prohibition) Act, 1986. However, the pre condition is that there is certification given by the Board of Film Censors. In the present case, it is admitted by the petitioners themselves that at least in respect of two films there is no such certificate. Thus, in respect of those films the petitioners cannot claim such an immunity.
11. Argument that petitioners could not be charged under Section 292 of the IPC is based on Section 5A of the Cinematograph Act, 1952 which deals with certification of films. If the film is sanctioned for unrestricted public exhibition, Board is to grant 'U Certificate'. If there is an endorsement that such a movie shall not be shown to any child below the age of 12 years, such move shall be given 'U-A Certificate'. On the other hand, if the film is sanctioned for restricted viewing by adults only, the film would be given 'A Certificate'. If the viewing of the film is restricted to members of any profession or any class of persons, the certificate to be given is termed as "S Certificate". Once the film is given a particular certification, no doubt the case of obscenity under Section 292 of the IPC cannot be made out when the said film is shown to the particular category for which the certificate is granted. Again the pre condition is that there has to be a certification by the Board of Film Censors. In the absence of any such certificate the petitioners cannot claim immunity from prosecution under Section 292 of the IPC.
12. In the present case, even as per the petitioners, they have certification from the Censor Board only in respect of to films namely "Stripped to Kill and Dance of the Damned". The learned Counsel for the respondent has, however, pointed out that no such certificates in respect of even those two movies are produced by the petitioners. He also submitted that the necessary averments were made in the complaint that these movies did not have clearance from the Censor Board and even in the movies no particulars of any such certificate were depicted. In respect of other two movies, the petitioners concede that there is no such certification. In the absence of certification from the Censor Board under Section 5A of the Cinematograph Act, the petitioners cannot claim that provisions of Section 292 of the Indian Penal Code or that of Indecent Representation of Women (Prohibition) Act, 1986, would not apply at all. In respect of those movies, where there is no such certification, matter can be examined as to whether such movies are indecent and obscene and violate the provisions of the aforesaid two Acts and it is not open for the person responsible for making or screening those movies to claim immunity from such a prosecution. Of course, it would be judged on its merits as to whether movie in question is obscene or indecent representation of women.
13. To sum up, the complaint cannot be quashed on the basis of the aforesaid submissions. Whether the films in question which were allegedly shown by the petitioners on their network are obscene and indecent and, therefore punishable under the provisions of Section 292 of the IPC or Indecent Representation of Women (Prohibition) Act, is a matter of trial. I have already reproduced above the operative portion of the impugned order as per which, the learned trial court after watching those movies have prima facie found the same to be lacking in decency and many objectionable scenes therein which amount to obscenity. As pointed out above, it was not argued by the learned Counsel for the petitioners before me that this prima facie view was not correct inasmuch as that is a matter of trial and thus not commented upon in judgment either. Likewise, who were responsible for screening is also a matter of evidence.
14. Before parting, I may note that to tackle this problem, legislature has enacted Cable Television Network (Regulation Act) and the Programme Code has also been introduced. Various statutory safeguards for regulating the transmission on the Cable Television Networks in India have been provided therein. The petitioners have to abide by these guidelines and laws relating to the Electronic Media keeping in mind the sentiments and social value of the Indian society, while relaying its programmes. In view of this development, in these circumstances, a joint application was moved by the petitioners and the complainant i.e. Crl. M.A. No. 5795/2005. In this application, the complainant agreed that he would not press his complaint in view of the aforesaid statutory provisions and other provisions now in place. When these petitions were argued before me initially on 11.7.2006 and my attention was drawn to the aforesaid application by the learned Counsel for the petitioners, I enquired from the learned Counsel for the complainant about his stand on the said application. He stated that the complainant was still agreeable to the aforesaid course of action. However, he pointed out that the application was supported by an affidavit of Mr. R. Basu who was CEO of Star TV and it is he only who had undertaken on behalf of Star TV to abide by the aforesaid guidelines and the laws. What he wanted was that either there should be a Resolution of the Board of Directors of the Company to this effect and affidavit of accused Nos. 4 and 5 in the complaint should also be filed on the lines as that of Mr. R. Basu. He also mentioned that in case the Resolution of company is brought on record, he would not insist for affidavits of accused Nos. 4 and 5. In view of this statement, the petitioners were given time to file the Resolution of the company. The petitioners filed Resolution passed by the Board of Directors of Star India Limited. This was not acceptable to learned Counsel for the respondent who stated that Star India Limited had nothing to do with the Broadcaster. In these circumstances, the matter was adjourned for further arguments and ultimately arguments heard and orders reserved. The purpose of pointing out these facts is that the parties may still agree, if they want, on a mutually accepted course of action in so far as completion of formalities about the passing of Resolution is concerned. Fact is that when the aforesaid movies were shown, the law regulating the cable network and also standard code of programmes was not in place. One purpose which the complaint in question has achieved is the enactment of necessary law and also formulation of standard code of programmes and in that sense the complainant stands vindicated. Therefore, whether he would like to continue with the complaint in respect of alleged offence relating to a period more than a decade ago is for him to decide. If there is a meeting ground between the parties, they are permitted to approach again.
15. With these observations, the petitions are otherwise dismissed.