Full Judgment Text
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PETITIONER:
RAJKAPOOR S/O PRITHVIRAJ KAPOOR
Vs.
RESPONDENT:
LAXMAN S/O KISHANLAL GAVAI
DATE OF JUDGMENT14/12/1979
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION:
1980 AIR 605 1980 SCR (2) 512
1980 SCC (2) 175
CITATOR INFO :
D 1981 SC1196 (5)
RF 1988 SC 775 (17,19)
ACT:
Indian Penal Code 1860 (45 of 1860), Ss. 79 and 292
Cinematograph Act 1952-S. 5A(1A)-Cinema film granted censor
certificate for public exhibition-Complaint for posecution
of producer that film is obscene, corrupts public morals-
Such prosecution whether sustainable.
Words and phrases-’Justified’-Meaning of-Indian Penal
Code 1860, S.79
HEADNOTE:
Section 79 I.P.C. provides that nothing is an offence
which is done by any person who is justified by law in doing
it, or, who by reason of a mistake of fact in good faith,
believes himself to be justified by law, in doing it.
The respondent-complainant alleged that the film Satyam
Shivam Sundaram was by its fascinating title misleadingly
foul and beguiled the guideless into degeneracy and that
obscenity, indecency and vice were writ large on the
picture, constituting an offence under s. 292 I.P.C. The
Magistrate after examining some witnesses, took cognizance
of the offence and issued notice to the appellant-producer
of the film. Thereupon the appellant moved the High Court
under section 482 Cr. P.C. on the score that the criminal
proceeding was an abuse of the judicial process and that no
prosecution could be legally sustained as the film had been
duly certified for public show by the Central Board of Film
Censors. The High Court, however dismissed the petition.
In the appeal to this Court it was contended on behalf
of the appellant that once a certificate sanctioning public
exhibition of a film had been granted by the competent
authority under the Cinematograph Act, 1952, there was a
justification for its display thereafter, and by virtue of
the antidotal provisions in section 79 I.P.C., the public
exhibition, circulation or distribution of the film, even if
it be obscene, lascivious or tending to deprave or corrupt
public morals, could not be an offence, s. 292 I.P.C.
notwithstanding.
Allowing the appeal,
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HELD: 1. The prosecution is unsustainable because
section 79 I.P.C. is exculpatory when read with section 5-A
of the Cinematograph Act, 1952 and the certificate issued
thereunder, and is therefore quashed. [517 G]
2. It is an antinomy to say that under section 5A(1A)
of the Act, the Board certifies a film as suitable for
public exhibition and for section 292 I.P.C. to punish such
exhibition unless the ground covered by the two laws be
different. [516 B]
3. The Penal Code is general, the Cinematograph Act is
special. The scheme of the latter is deliberately drawn up
to meet the explosively expanding cinema menace if it were
not strictly policed. The cinema is a great instrument for
public good if geared to social ends and can be a public
curse if directed to
513
anti-social objectives. So the Act sets up a Board of
Censors of high calibre and expertise, provides hearings,
appeals and ultimate judicial review, the precensorship and
conditional exhibitions and other policing strategies to
protect state and society. [516D; G-H]
4. Neither the Penal Code nor the Cinematograph Act can
go beyond the restrictions sanctioned by Part III of the
Constitution and once the special law polices the area it is
pro tanto out of bounds for the general law. Section 79
I.P.C. resolves the apparent conflict between section 292
I.P.C. and part II of the Act relating to certification of
films. If the Board blunders, the Act provides remedies.
[517 B-C]
5. 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. The chapter on General Exceptions operates in this
province. Section 79 makes an offence, a non-offence, only
when the offending act is actually justified by law or is
bona fide believed by mistake of fact to be so justified.
[517 E]
6. Once the Board of Censors, acting within their
jurisdiction and on an application made and pursued in good
faith, sanctions the public exhibition of a film, the
producer and connected agencies enter the statutory harbour
and are protected because s. 79 exonerates them in view of
the bona fide belief that the certificate is justificatory.
[517 F]
7. Freedom of expression is fundamental. The Censor is
not the moral tailor setting his own fashions but a
statutory gendarme policing films under Article 19(2) from
the angle of public order, decency or morality concepts
themselves dynamic, and which cannot be whittled down to
strifle expression nor licentiously enlarged to promote a
riot of sexual display. [518 E]
K. A. Abbas v. The Union of India & Anr. [1971] 2 SCR
446; referred to
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
773 of 1979.
Appeal by Special Leave from the Judgment and Order
dated 13-8-1979 of the Madhya Pradesh High Court in Misc.
Criminal Case No. 279/79.
Mrs. K. Hingorani for the Appellant.
The Judgment of the Court was delivered by
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KRISHNA IYER, J.-Sublime titles of cinematograph films
may enchant or entice and only after entry into the theatre
the intrinsic worth of the picture dawns on the viewer. The
experience may transform because the picture is great or the
audience may lose lucre and culture in the bargain. Mere
titles may not, therefore, attest the noxious or noble
content of the film. Sometimes the same film may produce
contrary impacts and what one regards as lecherous, another
may consider elevating. Be that as it may a well published
film Satyam, Sivam, Sundaram became
514
the subject matter of a prosecution presumably a pro bono
publico proceeding, by the respondent against the petitioner
and others who are the producer, actor, photographer,
exhibitor and distributor of that film. The complaint
alleged that the fascinating title was misleadingly foul and
beguiled the guileless into degeneracy. If the gravamen of
this accusation were true, obscenity, indecency and vice are
writ large on the picture, constituting an offence under s.
292 I.P.C. The Magistrate, after examining some witnesses,
took cognizance of the offence and issued notice to the
accused. Thereupon, the producer, namely, the present
petitioner, moved the High Court under s. 482 Cr. P.C. on
the score that the criminal proceeding was an abuse of the
judicial process and engineered by ulterior considerations
and that no prosecution could be legally sustained in the
circumstances of the case, the film having been duly
certified for public show by the Board of Censors. The High
Court, however, dismissed the petition, ignoring the
contention that the film had been given ’A’ certificate by
the Central Board of Film Censors and finding in the
prosecution nothing frivolous or vexatious nor any material
to quash the proceedings. The aggrieved film producer has
arrived in this Court hopefully, and pressed before us one
principal objection founded on s. 79 I.P.C. to neutralise s.
292 I.P.C. We do not find this contention apparent in the
High Court’s judgment, but since the facts are admitted and
the question of law is of some moment, we have chosen to
hear the petitioner on the invalidatory plea that once a
certificate sanctioning public exhibition of a film has been
granted by the competent authority under the Cinematograph
Act, 1952 (for short, the Act), there is a justification for
its display thereafter, and by virtue of the antidotal
provisions in s. 79 of the Penal Code, the public
exhibition, circulation or distribution or the production of
the film, even if it be obscene, lascivious or tending to
deprave or corrupt public morals, cannot be an offence, s.
292 I.P.C. notwithstanding. The absolution is based upon the
combined operation of s. 5A of the Act and s. 79 of the
Penal Code.
The issue is of some importance since the cinema is one
of the major mass media with millions of viewers and many
millions in investment. The respondent-complainant, despite
notice having been served on him, did not enter appearance.
We requested the Additional Solicitor General, Shri
Banerjee, to help the court unravel the legal tangle and he
responded promptly and eruditely rendered industrious
assistance. We record our appreciation of the services of
Shri Banerjee.
The sole point for decision is the legal effect of the
combined operation of s. 5A of the Act and s. 79 I.P.C. But
we will assume for purposes of argument that the facts
stated in the complaint prima facie
515
attract the offence under s. 292 I.P.C. Supposing such film
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has been certified by the Central Board of Film Censors,
acting within their jurisdiction under the Act, thereby
sanctioning the public exhibition of the film, does it
furnish a justification in law in doing the act which, in
the absence of such certification, may constitute an offence
under s. 292 I.P.C. ?
Section 79 I.P.C. runs thus:
79. 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.
The argument is irresistible that if the performance of the
act which constitutes the offence is justified by law, i.e.
by some other provision, then s. 79 exonerates the doer
because the act ceases to be an offence. Likewise, if the
act were done by one "who by reason of a mistake of fact in
good faith believes himself to be justified by law in doing
it" then also, the exception operates and the bona fide
belief, although mistaken, eliminates the culpability. The
resolution of the problem raised in this case thus becomes
simplified. If the offender can irrefutably establish that
he is actually justified by law in doing the act or,
alternatively, that he entertained a mistake of fact and in
good faith believed that he was justified by law in
committing the act, then, the weapon of s. 79 demolishes the
prosecution.
Does a certificate issued under s. 5A(1A) of the Act
amount to justification in law for public exhibition of the
film, be it obscene or not, or, at any rate, does it
generate a belief induced by a mistake of fact, namely, the
issuance of the certificate and its effect that the
certificate-holder is justified by law in exhibiting the
film ?
We are thrown back upon a study of the anatomy of the
Cinematograph Act and the efficacy of a certificate under s.
5A as a justification within the meaning of s. 79 of I.P.C.
"Justified" according to Black’s Legal Dictionary means:
Done on adequate reasons sufficiently supported by
credible evidence, when weighed by unprejudiced mind,
guided by common sense and by correct rules of law.
The Shorter Oxford English Dictionary assigns this meaning
for "justification".
The showing in court that one had sufficient
reason for doing that which i.e. is called to answer;
the ground for such a plea.
516
Lexically, the sense is clear. An act is justified by law if
it is warranted, validated and made blameless by law. Is a
legal sanction permitting a thing a legal justification for
doing it ? Maybe, there is a fine semantic shade between
mere legal sanction, which is passive, and clear legal
justification which is active. For the work-a-day world of
meanings, between ’permissive’ and ’justificative’ ’thin
partition do their bounds divide’. It is an antinomy to say
that under s. 5A(1A) of the Act the Board certifies a film
as suitable for public exhibition and for s. 292 I.P.C. to
punish such exhibition unless the ground covered by the two
laws be different. Although it may be plausible to say that
what is merely certified as suitable for show by a law may
not go the length of holding that it is justified by law.
Such niceties need not deter us once we grasp the sweep of
the Cinematograph Act.
Indeed, the Penal Code is general, the Cinematograph
Act is special. The scheme of the latter is deliberately
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drawn up to meet the explosively expanding cinema menace if
it were not strictly policed. No doubt, the cinema is a
great instrument for public good if geared to social ends
and can be a public curse if directed to anti-social
objectives. The freedom of expression, the right to be
equally treated and the guarantee of fair hearing before
heavy investments in films are destroyed belong to Indian
citizens under the Constitution. But all freedom is a
promise, not a menace and, therefore, is subject to socially
necessary restraints permitted by the Constitution. Having
regard to the instant appeal of the motion picture, its
versatility, realism, and its coordination of the visual and
aural senses. what with the art of the cameraman with trick
photography, vistavision and three dimensional
representation, the celluloid art has greater capabilities
of stirring up emotions and making powerful mental impact so
much so 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. Maybe, art
cannot be imprisoned by the bureaucrat and aesthetics can be
robbed of the glory and grace and free expression of the
human spirit if governmental palate is to prescribe the
permit for exhibition of artistic production in any
department, more so in cinema pictures. 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, pre-censorship 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
517
having elaborately enacted such a legislation can it be that
a certificate granted under it by expert authority can be
stultified by a simple prosecution of a shower of
prosecutions for an offence under s. 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 ? The Board under s. 5B has to consider, before
certification, all the points s. 292 I.P.C. prescribes.
Indeed, neither the Penal Code nor the Cinematograph Act can
go beyonds the restrictions sanctioned by Part III of the
Constitution and once the special law polices the area it is
pro tanto out of bounds for the general law. At least as a
matter of interpretation, s. 79 I.P.C. resolves the apparent
conflict between s. 292 I.P.C. and Part II of the Act
relating to certification of films. If the Board blunders,
the Act provides remedies. We are sure the public-spirited
citizen may draw the attention of the agencies under the Act
to protect public interest.
The general issues of art and the role of the State
have already been referred to by us in an earlier appeal
from the Delhi High Court relating to the same film. There
s. 79 I.P.C. was not considered by us because the contention
was not urged before us. The present decision will bind the
court that hears that case.
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. The chapter on General
Exceptions operates in this province. Section 79 makes an
offence a non-offence. When ? Only when the offending act is
actually justified by law or is bona fide believed by
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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 s. 79
exonerates them at least in view of their bona fide belief
that the certificate is justificatory. Thus the trial court
when it hears the case may be appropriately apprised of the
certificate under the Act and, in the light of our
observations, it fills the bill under s. 79 it is right for
the court to discharge the accused as the charge is
groundless. In the present case, the prosecution is
unsustainable because s. 79 is exculpatory when read with s.
5A of the Act and the certificate issued thereunder. We
quash the prosecution.
Two things deserve mention before we close.
Prosecutions like this one may well be symptomatic of public
dissatisfaction with the Board of Censors not screening
vicious films. The ultimate censo-
518
rious power over the censors belongs to the people and by
indifference, laxity or abetment, pictures which pollute
public morals are liberally certificated, the legislation,
meant by Parliament to protect people’s good morals, may be
sabotaged by statutory enemies within. Corruption at that
level must be stamped out. And the Board, alive to its
public duty, shall not play to the gallery; nor shall it
restrain aesthetic expression and progressive art through
obsolete norms and grandma inhibitions when the world is
wheeling forward to glimpse the beauty of Creation in its
myriad manifestations and liberal horizons. A happy balance
is to
"....consider, on the one hand, the number of readers
they believe would tend to be depraved and corrupted by
the book, the strength of the tendency to deprave and
corrupt, and the nature of the depravity or corruption;
on the other hand, they should assess the strength of
the literary, sociological and ethical merit which they
consider the book to possess. They should then weigh up
all these factors and decide whether on balance the
publication is proved to be justified as being for the
public good."
Going to the basics, freedom of expression is
fundamental. The censor is not the moral tailor setting his
own fashions but a statutory gendarme policing films under
Art. 19(2) from the angle of public order, decency or
morality. These concepts are themselves dynamic and cannot
be whittled down to stifle expression nor licentiously
enlarged to promote a riot of sensual display.
Anyway, the appeal must succeed and we extinguish the
prosecution by the order.
N.V.K. Appeal allowed.
519