Kerala High Court
Ramakrishnan vs State Of Kerala on 25 June, 2002
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
ORDER M.R. Hariharan Nair, J.
1. The subject matter of the revision is obscenity on the silver screen and the interesting question that arises for decision is whether the prosecution, in order to establish the offence under Section 292(2)(a) of the Indian Penal Code should produce the entire film exhibited during the particular show in a theatre or is it sufficient if the objectionable/obscene parts of the film alone is produced and marked as material object after detaching the same from the censored print of the film which was to be exhibited to the public in the theatre on the particular day?
2. The prosecution case is that as per the instructions from the Superintendent of Police, Kannur, PW 3, who is the Deputy Superintendent of Police, Crime Records Bureau, Kannur, went over to the 'Prakash Theatre', Valapattanam, Kannur, on 13.12.1999. Petitioners 1 to 3 are the Manager, Projector Operator and Assistant Projector Operator respectively of the said theatre. A Tamil film by name 'Inaye Thedava' was supposed to be exhibited there on that day. Just before 1 p.m. when the interval in respect of the noon show of the said film was to take place, suddenly obscene scenes appeared in the screen. As soon as the screening of the objectionable part was over, the Deputy Superintendent of Police, accompanied by other members of his party, who were inside the theatre in mufti, went over to the projection room and seized the portions of the films which related to the obscene parts.
3. Offence under Section 7(1)(b) of the Cinematograph Act, 1952 was also alleged in the charge sheet presented by the police as also in the charge framed by the Court.
However, after trial and based on the evidence of PWs. 1 to 12 and Exts. P1 to P8, the accused were acquitted of that offence on the ground that there was dearth of evidence to show that the seized parts viz., M.O.1 was not part of the censored version. To come to the said conclusion, the Court took into account the reply of the Censor Board to the effect that it would be able to give a certificate on the aspect whether M.O. 1 was part of the censored version only if the entire print relating to 'Inaye Thedava' was made available for comparison. For convicting the accused under Section 292(2)(a) of the IPC, the Court, however, relied on Ext. C1 minutes recorded by itself after viewing the exhibition of the objectionable part in another theatre.
4. Mr. M. Ramesh Chander, who appeared for the revision petitioners, submitted that for the very same reasons which prompted the trial court to acquit the accused in respect of the offence under Section 7(1)(b) of the Cinematograph Act, the Court should have acquitted the accused in respect of the offence under Section 292(2)(a) of the IPC also. In this regard he highlighted the fact that immunity from prosecution is available to the exhibitor of the film under the proviso to Section 5-A of the Cinematograph Act and that in view of this position the prosecution can succeed in bringing home guilt for the offence contemplated in Section 292(2)(a) of the IPC only if it is established through authentic evidence that M.O. 1 did not form part of the censored version. PW3, having failed to seize the entire print used for exhibiting the film 'Inaye Thedava' for eventual transmission to the Censor Board for getting the certificate that it was not part of the film that was approved by the Board, there was no question of convicting the accused for the said offence. The counsel further submitted that this aspect of the matter could not be highlighted before the trial court or before the Court of Sessions, Thalassery, which heard Criminal Appeal No. 314/93; but, nevertheless, the question has to be decided by this Court considering the fact that it is a question of law.
5. According to the learned Public Prosecutor, the offence under Section 292(2)(a) of the IPC is independent of the provisions in the Cinematograph Act and once the Court was convinced, as it did, on finding objectionable materials as noted in Ext. C1, there was nothing which prevented the Court from convicting the accused for the offence under Section 292(2)(a) of the IPC.
6. Decisions in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) as also the decision in Raj Kapoor v. State (Delhi Administration) & Ors. (AIR 1980 SC 258) were cited at the Bar during arguments.
7. In the former case decided by a Constitution Bench of the Apex Court what came up for consideration was not obscenity in any film; but obscenity contained in a book. The Court found that whether a book is obscene or not does not depend on oral evidence of a writer or the opinion of an Acritic and that the question of obscenity is to be decided by the Court itself. It is to be mentioned here that the facts of the said case did not in any way touch upon the provisions of the Cinematograph Act and the plea of the accused in the present case is based on the proviso to Section 5A of the Cinematograph Act providing immunity to the exhibitor of film subject to certain conditions. As far as that aspect is concerned, the opinion of the Censor Board as to whether the particular objectionable portion viz., M.O.I was part of the censored version or not has certainly much weight. To this extent the said decision is inapplicable to the facts of the present case.
8. In Raj Kapoor v. State (Delhi Administration) & Ors. (AIR 1980 SC 258), the Apex Court found that the certificate granted under Section 6 of the Cinematograph Act by the Board of Censors does not provide an irrebuttable defence to the accused who was granted a certificate; though that is certainly a relevant fact of some weight to be taken into consideration by the criminal court in deciding whether the offence charged is established. The Court should have due regard to the fact that the certificate represents the judgment of a body of persons particularly selected under the statute for the specific purpose of adjudging the suitability of films for public exhibition, and such judgment extends to a consideration of the principal ingredients which go to constitute the offences under Sections 292 and 293 of the IPC as well. At the same time, the Court must remind itself that the function of deciding whether the ingredients are established is primarily and essentially its own function and it cannot abdicate that function in favour of another, no matter how august and qualified be the statutory authority be.
9. In Raj Kapoor (AIR 1980 SC 605) decided less than 2 months later, the very same learned Judges of the Apex Court, had a fresh look into the question with reference to the provision in Section 79 of the IPC as also the proviso to Section 5A of the Cinematograph Act. The subject matter of that case was screening of the very same film as involved in the earlier decision (AIR 1980 SC 258) about which mention was already made in the previous para. The Court considered the question whether a certificate issued under Section 5A(1)(a) of the Cinematograph Act amounts to justification in law for public exhibition of the film, be it obscene or not, or, at any rate, whether it generated a belief, be it induced by a mistake of fact, namely, the issuance of the certificate providing immunity to the certificate-holder and justifying him under law to exhibit the film. It was ultimately found that a certificate granted under the Cinematograph Act by the expert authority (Censor Board) cannot be stultified by a simple prosecution or a shower of prosecution for an offence under Section 292 of the IPC driving the exhibitor to satisfy the criminal court that the certificate of the Board of Censors notwithstanding, the film was not offensive. It was also held that once a special law polices the area it is pro tanto out of bounds for the general law.
10. Section 79 of the IPC, it was found, resolves the apparent conflict between Section 292 of the IPC and Part II of the Act relating to certification of films. Though an act may be an offence, definitionally speaking, 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. The Chapter on General Exceptions in the IPC operates in this province. Section 79 makes even a certain offence a non-offence when the offending act is actually justified by law or is done bona fide believing by mistake of fact to be so justified. If, as here, the Board of Censors, acting within their jurisdiction and on an application made and pursued in good faith, sanctions the public exhibition, the producer and connected agencies do enter the statutory harbour and are protected because Section 79 exonerates them at least in view of their bona fide belief that the certificate is justificatory.
11. Based on the aforesaid findings, the Apex Court ultimately quashed the charge brought against the producer of the film for the offence under Section 292(2) of the IPC because as long as the exhibitor is entitled to contend that he was acting bona fide in the screening of the film based on the certificate issued by the Board, there was no question of punishing him especially in view of the proviso to Section 5A of the Cinematograph Act.
12. No decision of the Apex Court taking a contrary view has been placed before me. In view of the said position of law, an offence under Section 292(2) of the IPC alleging that the objectionable part is an interpolation to a censored film can be established only if it is shown through authentic evidence that the objectionable material was not part of the censored version. In view of the proviso to Section 5A the burden in the matter lies on the prosecution.
13. During hearing the learned counsel for the petitioners placed reliance on the correspondence between the Court and Censor Boards with regard to the question whether M.O.1 formed part of the censored version of the film 'Inaye Thedava'. These are not seen to have been marked though reference was made thereto in the impugned judgment. For the sake of convenience, I deem it necessary to mark them. Accordingly they are marked as Exts. C2 to C5. Exts. C2 to C5 will clearly show that the prosecution had taken up the burden in the matter on itself and gave up the effort when confronted with the demand in Ext. C5 letter of the Censor Board that in order to issue a certificate as required in the letter of the learned Magistrate, it was necessary that the entire print relating to the film 'Inaye Thedava' was seized and sent over. The consequence of not pursuing the matter, according to the counsel for the petitioners, is that there is no certification by the Board that M.O.1 was not part of the censored version of the film 'Inaye Thedava.' and it would follow that for the reasons which prompted the trial Magistrate to acquit the accused of the offence under Section 7(1)(b) of the Cinematograph Act, the accused would also be entitled to similar treatment with regard to the offence under Section 292(2)(a) of the IPC as well.
14. According to the learned Government Pleader, the impact of accepting the said contention would be that in cases where prosecution is laid against the exhibitor of the film with regard the offence under Section 292(2)(a), the prosecution would be duty bound to produce before Court not only the objectionable portion of the film; but the entire film exhibited during that show in order to enable the Censor Board to certify eventually whether the alleged objectionable material was really a part of the certified version or not, and that will cause inconvenience and difficulties especially when the film print as such does not belong to the offending exhibitor; but to the producer/ distributor.
15. I find considerable merit in the submissions of the learned counsel for the revision petitioners. Before giving reasons for this conclusion it is necessary to refer to Exts. C2 to C5. Through Ext. C2 letter dated 15.1.90, the learned trial Magistrate addressed the Censor Board at Thiruvananthapuram, requesting for examination of M.O.1 print as desired by the prosecution in its requisition and for grant of a certificate based thereon as to whether the contents were part of the censored version. In Ext. C3 reply dated 18.1.1990 the said Censor Board replied that 'Inaye Thedava' is not a film that was censored at Thiruvananthapuram, and that M.O. I might therefore be sent over to the Censor Board at Madras which certified the film for necessary verification.
16. As per Ext. C4, the prosecution agency moved the trial Magistrate to send over M.O. 1 for examination at Madras as suggested in Ext. C3. The reply in Ext. C5 received from Madras was as follows:
"xxxxx I am directed to state that unless the entire print as exhibited for public is seized and sent, the Board will not be in a position to furnish the report to the effect whether it contained interpolation or not because the Board examines and certifies the film in its final form as required under Rule 22(3) of the Cinematograph (Certification) Rules, 1983 xxxx".
Rule 22(3) aforementioned reads as follows:
"The film to be examined by the Examining Committee shall be in its final form with the background music and all sound effects duly recorded on the film itself.
The Board therefore requested the Court to seize the print in complete form to enable the Board to give the report whether M.O. 1 was an interpolation made into the censored version. The said requirement could not be met in so far as the print had not been seized and was unavailable.
17. The question, in the circumstances, is whether even in the absence of a certificate from the Censor Board that M.O. 1 is an interpolation, the Court on viewing M.O. 1 portion alone could come to a conclusion that the offence under Section 292(2)(a) of the IPC has been established. The said Section reads as follows:
"292(2)(a) Whoever-sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction, with imprisonment of either description for aterm which may extend to five years and also with fine which may extend to five thousand rupees".
It is Section 5-A of the Cinematograph Act, 1952 that enables the Censor Board to issue the appropriate censor certificate classifying it as 'IT, 'UA', 'A, or 'S' as the case may be. The said section is subject to a proviso which reads as follows:
"Provided that the applicant for the certificate, any distributor or exhibitor or any other person to whom the rights in the film have passed shall not be liable for punishment under any law relating to obscenity in respect of any matter contained in the film for which certificate has been granted under Clause (a) or Clause (b)."
The impact of Section 5-A is that an immunity is given to the exhibitor of the film from punishment under any law relating to obscenity (IPC included) in respect of any matter contained in the film for which certificate has been granted by the Board. In view of the said embargo created by the proviso, the prosecution can sustain the offence under Section 292(2)(a) of the IPC only if it is established that M.O. 1 was not part of the censored version of the film 'Inaye Thedava'. No doubt, the Court would be able to form its own opinion based on Ext. C1 as to whether what is contained in M.O. 1 is objectionable material vis-a-vis the ingredients of Section 292(2)(a) of the IPC; but even after forming an opinion in favour of the prosecution, the Court would be helpless in the matter of conviction for that offence in view of the prohibition contained in the proviso aforementioned. It follows that as long as it is not established through convincing evidence whether based on report/certificate of the Censor Board or other material, that M.O.1 was not part of the censored version of the film 'Inaye Thedava', there is no question of convicting the accused for the offence under Section 292(2)(a) of the IPC. It is more so because the exhibitor would be entitled to contend that he was under the bona fide impression that the alleged objectionable part was part of the censored version and that in view of the immunity contemplated in the proviso to Section 5A of the Cinematagraph Act violation, if any, would come within the ambit of Section 79 of the IPC which reads as follows:
"79. Act done by a person justified, or by mistake of fact believing himself justified, by law. Nothing is an offence which is done by any person who is justified by law, or who, by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it".
18. To sum up, the absence of evidence from the prosecution to show that M.O. 1 was not part of the censored version of 'Inaye Thedava' entitles the petitioner to get an acquittal.
In view of my findings as above, the revision is allowed and the accused are acquitted of the offence under Section 292(2)(a) of the IPC. The bail bonds executed by the accused are cancelled and they will be set at liberty forthwith.