Rajkapoor Vs. Laxman [1979] INSC 264
(14 December 1979)
KRISHNAIYER, V.R.
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 prosecution 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,
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
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
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 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 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 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
there under. 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.
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