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RAKEYSH OMPRAKASH MEHRA & ANR. Vs. GOVT OF NCT OF DELHI & ANR.
January, 02nd 2013
$~
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       W.P.(CRL) 1188/2009 & CRL.M.A. 9918/2009

        RAKEYSH OMPRAKASH MEHRA & ANR.             ..... Petitioners
                       Through: Ms. Indu Malhotra, Senior Advocate
                                with Mr. Madhukar Pandey,
                                Mr. Vivek Jain & Mr. Anirudh
                                Mishra, Advocates.
                versus

        GOVT OF NCT OF DELHI & ANR.                ..... Respondents
                     Through: Mr. Dayan Krishnan, ASC with
                                Ms. Manvi Priya and Ms. Tejaswi
                                Shety, Advocates and ACP Ved
                                Prakash, DSF, New Delhi for
                                R-1/State.
                                Dr. Chaudhary Shamshuddin Khan,
                                Advocate for R-2.
%                         Reserved on:      27th November, 2012
                          Date of Decision: 2nd January, 2013

        CORAM:
        HON'BLE MR. JUSTICE MANMOHAN

                          JUDGMENT

1.      Present writ petition has been filed under Article 226 of the
Constitution read with Section 482 Cr.P.C. seeking quashing of FIR
No.40/2009 dated 07th March, 2009 registered with Police Station Mandir
Marg, New Delhi under Section 3(1)(x) of The Scheduled Castes and The
Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section
7(d) of The Protection of Civil Rights Act, 1955.




W.P.(Crl.) 1188/2009                                     Page 1 of 37
2.      The relevant facts of the present case are that the petitioners produced
and directed the Hindi motion picture titled "Delhi-6" (hereinafter referred
to as "the film"). The film was viewed and cleared by the Central Board of
Film Certification (in short "CBFC"), Ministry of Information and
Broadcasting with a ,,U/A Certificate bearing CBFC No. C-II/2/17/09 dated
09th February, 2009.
3.      Upon commercial release of the film on 20 th February, 2009 the
aforesaid FIR was registered on 07th March, 2009 by respondent No.2-
complainant. It was alleged in the complaint that for the last five/six days,
the aforesaid film had been shown in Delhi cinema halls in which the
character enacting the role of a lady sweeper had been insulted and thereby
the entire Balmiki Samaj had been insulted. The FIR lodged by respondent
No.2-complainant is reproduced hereinbelow:-
        Copy of report No.17A, dated 01.03.09 P.S. Mandir Marg,
        New Delhi, Shri Jai Kishan S/o Shri Shankar Lal R/o Rajpal,
        Near Sultanpuri Age 50 years, MLA Sultanpur Mazra, time of
        information 6.25 O Clock evening, reported that at this time
        Shri Jai Kishan MLA Sultanpur Mazra along with Dr. O.P.
        Shukla S/o Lt. Shri Banwari Lal R/o AG-4, Peswa Road
        Apartment, Gole Market, New Delhi, Pandit Durga Prasad S/o
        Chaudhary Kude Pahalwan R/o 29, Bhairon Road, Minto Road,
        New Delhi and Suka Pradhan R/o 1916/11, Chuna Mandi,
        Pahar Ganj, Shri Kishan Lal Ghilode, S/o Sh. Ghasi Ram R/o
        4521, UEA Karol Bagh, New Delhi, Ram Lal, Laxman Balmiki,
        S/o Late Shri Shyam Lal R/o Gali no. 51 Sector 8, Rohini, New
        Delhi, Pradeep Bangali, S/o Kartar Singh, R/o 1887, Gurdwara
        Road, Chuna Mandi Paharganj, New Delhi, Sunil Balmiki S/o
        Late Shri Pyare Lal, R/o Balmiki Basti Mandir Marg, New
        Delhi got a complaint filed that since last 5-6 days, a film by
        the name of Delhi 6 is being shown in the Delhi Cinema Halls
        in which the character enacting role of lady sweeper is being
        insulted and Balmiki Samaj is insulted thereby. Not only this,



W.P.(Crl.) 1188/2009                                             Page 2 of 37
        the lady sweeper who is called again and again Bhangan is
        beaten by the character enacting the role of Police and she is
        referred to as Saali and she is hit on the front part with stick,
        whereas calling Bhangi is an legal offence, even two small
        children are shown saying that Jalebi (who is enacting the
        role of Bhangan) make us Mard. We have information that you
        make Mard. At one place police people tell Jalebi that our
        thanedar is calling you. When she declines then one Head
        Constable is seen hitting her with stick. In the meantime,
        character playing the role of Thanedar comes and says Saali
        Bhangan I will show you how you will not come and hits her
        on the leg with the sticks. On this the character Jalebi says that
        Saale when you open string in the night then you do not see that
        I am a Bhangan. Harami Lehange Ke Pissu, you do not feel
        shame in hitting a women and she is beaten away. In one scene
        she is stopped from entering the temple and she said by a
        character that we do not want to go to hell and she is
        stopped. In one scene it is shown that when Abhishek Bachhan
        touches that woman, then his grandmother says that you have
        become un-pious and today I will get you bathed. She washes
        Abhishek Bachhan`s hand with gobar and puts on Sandal
        (Chandan) and perform his Sudhikaran. Please take legal
        action against Director of the movie and those responsible for
        passing the film and against Vijay Ram, Pawan Malhotra,
        Devander, Prem Chopra, Wahida Rahman, Director Rakesh
        Om Prakash Mehra, UTI Company and other and against
        Censor Board Chairman Sharmila Tagore as their acts are not
        only illegal but also unconstitutional.....

4.      Upon the present writ petition being filed, this Court on 27 th August,
2009 stayed further investigation in the aforesaid FIR.

PETITIONERS' SUBMISSIONS
5.      Ms. Indu Malhotra, learned senior counsel for petitioners submitted
that CBFC was the statutory authority for the purpose of sanctioning films
for public exhibition, constituted under Section 3 of The Cinematograph



W.P.(Crl.) 1188/2009                                             Page 3 of 37
Act, 1952 (hereinafter referred to as ,,The Cinematograph Act). She stated
that The Cinematograph Act provided for a detailed examination of the
films, right to take assistance of the Advisory Board and the Guidelines for
certification of films.    According to her, Sections 5A and 5B of The
Cinematograph Act provided the guidelines for certifying the film to be fit
for being viewed by the public. She stated that after the film was duly
certified vide Certificate dated 09th February, 2009, without any objections
and cuts, by the CBFC, the film was released.
6.      She pointed out that the petitioner No.1, Rakeysh Omprakash Mehra,
had even attended a meeting on 05th March, 2009 in New Delhi with key
representatives of the National Commission for Scheduled Castes and
Scheduled Tribes, the Ministry of Information and Broadcasting and the
CBFC, in which the film was screened.           According to her, after the
screening, the representatives had appreciated the petitioners for portraying
the social evils prevalent in society, including the caste system, and also for
affirming the message that there is unity in Indian society despite diversity
in the form of caste, religion etc.
7.      Ms. Indu Malhotra contended that the film conveyed a strong message
to the public at large and was not intended to hurt the sentiments of any
section or society at large. She stated that the petitioners ensured that the
film used no derogatory language and the film portrayed the social evils that
existed in our society today especially with reference to the Scheduled
Castes and Scheduled Tribes. According to her, the film sent a powerful
message that these practices must be curbed in present times when all men
and women are equal and this message was very apparent from the ultimate
relationship that develops between Jalebi (the Scheduled Castes character in



W.P.(Crl.) 1188/2009                                            Page 4 of 37
the movie) and Gobar (the Brahmin Character in the movie).
8.      She submitted that the impugned FIR had been lodged by Mr. Jai
Prakash, MLA Sultanpur Majra (hereinafter referred to as "the respondent
no.2-complainant") only to gain cheap popularity and thus the FIR ha d been
filed out of malice and had been instituted with an ulterior motive for
wreaking vengeance on the petitioners, who were attempting to create
awareness about the condition of the Scheduled Castes community.
9.      She submitted that there was no specific accusation against any of the
accused in the complaint and an omnibus statement that all the accused
persons uttered allegedly humiliating words was not sufficient. Section 3 of
The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities)
Act, 1989 being a penal provision had to be given a strict interpretation. She
repeatedly emphasised that there was no averment in the complaint to attract
the ingredients of Section 3 of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and Section 7(d) of the Protection of
Civil Rights Act, 1955 as against petitioners.
10.     In support of her submissions, Ms. Indu Malhotra, learned senior
counsel relied upon the following judgments of the Supreme Court and
Madras High Court:-
A.      Bobby Art International & Ors. Vs. Om Pal Singh Hoon & Ors.
(1996)4 SCC 1 wherein the Supreme Court held as under:
        20. In The State of Bihar v. Shailabala Devi Mahajan, J. said
        that a writing had to be considered as a whole and in a fair and
        free and liberal spirit, not dwelling too much upon isolated
        passages or upon a strong word here and there, and an
        endeavour had to be made to gather the general effect which
        the whole composition would have on the mind of the
        public............



W.P.(Crl.) 1188/2009                                            Page 5 of 37
                       xxx        xxx          xxx

        22. ......They require the authorities concerned with film
        certification to be responsive to the values and standards of
        society and take note of social change. They are required to
        ensure that ärtistic expression and creative freedom are not
        unduly curbed". The film must be "judged in its entirety from
        the point of view of its overall impact"..........

        23. .........Where the theme is of social relevance, it must be
        allowed to prevail. Such a theme does not offend human
        sensibilities nor extol the degradation or denigration of women.
        It is to this end that Sub-clause (ix) of Clause 2 permits scenes
        of sexual violence against women, reduced to a minimum and
        without details, if relevant to the theme. What that minimum
        and lack of details should be is left to the good sense of the
        certification authorities, to be determined in the light of the
        relevance of the social theme of the film.
                xxx                      xxx                       xxx
        29. Too much need not, we think, be made of a few swear
        words the like of which can be heard every day in every city,
        town and village street. No adult would be tempted to use them
        because they are used in this film.
        30. In sum, we should recognise the massage of a serious film
        and apply this test to the individual scenes thereof : do they
        advance the message ? If they do they should be left alone, with
        only the caution of an 'A' certificate, Adult Indian citizens as a
        whole may be relied upon to comprehend intelligently the
        message and react to it, not to the possible titillation of some
        particular scene.
        31. A film that illustrates the consequences of a social evil
        necessarily must show that social evil. The guidelines must be
        interpreted in that light. No film that extols the social evil or
        encourages it is permissible, but a film that carries the message
        that the social evil is evil cannot be made impermissible on the
        ground that it depicts the social evil. At the same time, the



W.P.(Crl.) 1188/2009                                             Page 6 of 37
        depiction must be just sufficient for the purpose of the film. The
        drawing of the line is best left to the sensibilities of the expert
        Tribunal. The Tribunal is a multi-member body. It is comprised
        of persons who gauge public reactions to films and, except in
        cases of stark breach of guidelines, should be permitted to go
        about its task.

B.      Director General, Directorate General of Doordarshan & Ors. Vs.
Anand Patwardhan & Anr., (2006) 8 SCC 433, wherein the Supreme Court
held as under:-
                             xxx         xxx          xxx

        35. This film so far as our opinion goes does not violate any
        constitutional provision nor will create any law and order
        problems as Doordarshan fears. This movie falls well within
        the limits prescribed by our Constitution and does not appeal to
        the prurient interests in an average person, applying
        contemporary community standards while taking the work as a
        whole, the work is not patently offensive and does not proceed
        to deprave and corrupt any average Indian citizen`s mind.

                       xxx               xxx          xx

        38. Hence, in our view, the correct approach to be taken
        here is to look at the documentary film as a whole and not in
        bits, as any message that is purported to be conveyed by way of
        a film cannot be conveyed just by watching certain bits of the
        film. In the present situation the documentary film is seeking to
        portray certain evils prevalent in our society and is not seeking
        to cater to the prurient interests in any person. Therefore, we
        have no hesitation in saying that this documentary film if
        judged in its entirety has a theme and message to convey and
        the view taken by the appellants that the film is not suitable for
        telecast is erroneous.

                       xxx               xxx          xx




W.P.(Crl.) 1188/2009                                              Page 7 of 37
        40. It was held in Bobby Art International v. Om Pal Singh
        Hoon and K.A. Abbas that a film was required to be viewed as
        a whole, and in the context of the message that the filmmaker
        desired to communicate.

        41.    In this film too, scenes must be seen in the context of the
        message of exploitation of women through insecurities created
        in men and the film must be evaluated in its entirety.

C.      T. Kannan Vs. Liberty Creations Ltd., rep. by its Producer cum
Director Gnanarajasekaran & Ors., W.P.(C) No.8780/2007 decided on 24th
March, 2007, wherein the Madras High Court held as under:-
        "1. The petitioner has filed this writ petition in public
        interest, for a mandamus directing the first respondent to delete
        the song, "Bhagwan Oru Naal Aagyam Padaichar featuring in
        the Tamil film "PERRIYAR" before releasing the film and for a
        further direction to the fifth respondent/Censor Board to re-
        consider the censor certificate issued to the said film.

                xxx          xxx         xxx

      3.       The petitioner takes exception to the son "Bhagwan Oru
      Naal Aagayam Padichar....."featuring in the film "PERRIYAR"
      on the ground that it contains vulgar criticism of Goddess Sita.
      The petitioner has alleged that the song comments on her
      chastity and modesty and ridicules the mythological characters
      of Lord Rama and Goddess Sita. According to him Lord Rama
      and Goddess Sita are worshipped by millions of Hindus not only
      in India, but also around the world. Further according to him
      the Hindu way of life is mainly based on the epic, "Ramayana",
      and each and every event and character of "Ramayana" is
      holistic to Hindus.

                       xxx         xxx         xxx




W.P.(Crl.) 1188/2009                                             Page 8 of 37
      13.     Applying the basic principles laid down in the cases
      referred to above, we are of the view that the Censor Board,
      which is a multi-member body and is comprised of persons who
      gauge public reactions to films and, except in cases of stark
      breach of guidelines, should be permitted to go about its task.
      The Censor Board has viewed the film in question in its true
      perspective and had, in compliance with the requirements of the
      guidelines, granted the Certificate to the film.........


RESPONDENT NO. 2-COMPLAINANT'S SUBMISSIONS
11.     On the other hand, Dr. Chaudhary Shamshuddin Khan, learned
counsel for respondent No.2-complainant submitted that the present petition
was liable to be dismissed at this stage on the sole ground that an FIR under
investigation could not be quashed. In support of his submissions, he relied
upon the following judgments:
A.       James Sebastian & Anr. vs. State of Assam & Anr., 2008 Crl.L.J.
3634, wherein the Gauhati High Court held as under:-

        48. ......Whether the allegations made in the complaint`, in
        question, which has already been registered as FIR are true or
        not are questions, which can be determined only by way of
        investigation and not otherwise. In such circumstances, the
        complaint` in question, cannot be quashed. See State of
        Haryana and others v. Bhajanlal and others, reported in 1992
        Supp (1) SCC 335: (1992 Crl.LJ 527) and R.P. Kapoor v. State
        of Punjab, AIR 1960 SC 866 : (1960 Crl LJ 1239). Quashing
        of a complaint` or FIR is possible only in rarest of rare cases
        and the present one is not one of such cases. (See State of
        Bihar and another v. Mohd. Khalique and another, reported in
        (2002) (1) SCC 652 : 2002 Crl LJ 553.




W.P.(Crl.) 1188/2009                                           Page 9 of 37
B.       Rajiv Kumar Sadh & Ors. vs. Govt. of NCT Delhi & Anr., 89 (2001)
DLT 419, wherein this Court held as under:-

        5. .......After the accused summoned, he is entitled to place
        before the Court relevant material and pray that the process
        ought not to have been issued; the Court is entitled to drop the
        proceedings if on re-consideration of the complaint and the
        material he finds that no case is made out for which the
        accused is to be tried. The order of issuing process is interim
        order and is not a judgment. It can be varied and recalled at
        any stage. Reference in this regard can be made to the law laid
        down by the Supreme Court in K.M. Mathew v. State of Kerala,
        AIR 1992 SC 2207=I(1992) CCR 316 SC wherein it was held:
            "It is open to the accused be plead before the Magistrate
            that the process against him ought not to have been
            issued. The Magistrate may drop the proceedings if he is
            satisfied on reconsideration of the complaint that there is
            no offence for which the accused could be tried. It is his
            judicial discretion. No specific provision is required for
            the Magistrate to drop the proceedings or rescind the
            process. The order issuing the process is an interim order
            and not a judgment. It can be varied or recalled. The fact
            that the process has already been issued is no bar to drop
            the proceedings if the complaint or the very fact of it does
            not disclose any offence against the accused."
        6.     The apprehension of the petitioner is misplaced; firstly,
        there is nothing on the record to presume that the investigating
        officer, who is public servant acting in discharge of duties
        would not act fairly or would not take into consideration earlier
        settlement between the parties, or the earlier report of Crime
        Branch on the complaint of the respondent No. 2 particularly
        after the orders of the Court in Cr. Misc. (M) No. 106/97.
        Secondly, the trial court is not bound to accept the report and is
        required under the law to find out independently whether there
        is sufficient material to proceed in the matter or not. Lastly if
        the petitioners are summoned and they are not satisfied they




W.P.(Crl.) 1188/2009                                              Page 10 of 37
        would be well within their right to approach the trial court for
        recalling the order; they have already been granted
        anticipatory bail, therefore, is no question of harassment. The
        petition at this stage is not maintainable.

12.     According to Dr. Chaudhary, the scenes and expressions mentioned in
the FIR clearly showed that the film depicted social evils like 'sudhikaran'.
Consequently, according to him, the ingredients of offences under Section
3(1)(x) of The Scheduled Castes and The Scheduled Tribes (Prevention of
Atrocities) Act, 1989 read with Section 7(d) of the Prevention of Civil
Rights Act, 1955 stood satisfied. He also stated that as the lady sweeper was
referred to as 'Bhangan', it amounted to preaching and practicing
untouchability within the meaning of Section 7 of Prevention of Civil Rights
Act, 1955.
13.     Since Dr. Chaudhary, learned counsel for respondent No.2-
complainant laid considerable emphasis on the aforesaid Sections, the same
are reproduced hereinbelow:-

A)      Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes
        (Prevention of Atrocities) Act, 1989

        3. Punishments for offences of atrocities.--(1)Whoever, not being a
        member of a Scheduled Caste or a Scheduled Tribe,--

                       xxx       xxx          xxx

        (x) Intentionally insults or intimidates with intent to humiliate a
        member of a Schedule Caste or Scheduled Tribe in any place within
        public view.




W.P.(Crl.) 1188/2009                                            Page 11 of 37
B)      Section 7(d) of the Protection of Civil Rights Act, 1955

        7. Punishment for other offences              arising   out    of
        untouchability"--(1) Whoever--

                     xxx         xxx         xxx
        (d) insults or attempts to insult, on the ground of
        untouchability, a member of a Scheduled Caste.
        [shall be punishable with imprisonment for a term of not less
        than one month and not more than six months, and also with
        fine which shall be not less than one hundred rupees and not
        more than five hundred rupees]

14.     Mr. Chaudhary, learned counsel for respondent No.2-complainant
reiterated that the petitioners by depicting social evils like the caste system
had subjected the members of the Scheduled Castes and Scheduled Tribes to
indignity, humiliation and harassment all over Delhi and had acted against
the objects and reasons of The Scheduled Castes and The Scheduled Tribes
(Prevention of Atrocities) Act, 1989 whose purpose was to improve the
socio-economic conditions of Scheduled Castes and Scheduled Tribes
community. According to him, the acts of the petitioners had intentionally
hurt the self respect and honour of women belonging to Scheduled Castes
and Scheduled Tribes which was in violation of the Statement of Objects
and Reasons of The Scheduled Castes and The Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
15.     Accordingly, he submitted that in the present case the impugned FIR
could not be quashed. In this connection, he also relied upon the following
judgments:-




W.P.(Crl.) 1188/2009                                            Page 12 of 37
A.      Bidyut Saha v. State of W.B., 2003 Crl.L.J. 2678, wherein the
Calcutta High Court held as under:-
        7. ......I find some materials are there against the present
        petitioner to justify further proceeding in the matter against
        him. The prosecution should be given an opportunity to prove
        its case by adducing evidence during trial. In my considered
        view it will not be proper for this Court to quash the proceeding
        against the petitioner of this initial stage only on the grounds as
        agitated by the petitioner in the present application.


B.      Rosamma Thomas & Anr. v. Circle Inspector of Police,
Tripunithura & Ors., 1999 Crl.L.J. 1666, wherein the Kerala High Court
held as under:-

        10. ..........Likewise in the north eastern States people
        professing Christianity in certain regions are included in the
        list of scheduled tribes in the list published under Article 342 of
        the Constitution with respect to those States. These facts clearly
        establish that the status of scheduled tribes is conferred upon
        the people not on the basis of the religion they profess but on
        the basis of the community to which they belong and the region
        they are inhabiting.
        11. The Government of India has recognised the fact that
        scheduled tribes are not scheduled on the basis of the religion
        they profess and when a person belonging to a tribe, notified as
        scheduled tribe changes his religion will not deprive the
        previleges and facilities extended to him as a member of the
        scheduled tribe and G.O.Ms. 624/ Revenue dated 19-7-1962 is
        issued to that effect. Accordingly, the Government of Kerala by
        notification has ordered that the members of scheduled tribes
        even after conversion to some other religion will continue to
        enjoy the benefits admissible to scheduled tribes. These facts
        clearly go to show that the status of scheduled tribe is not
        conferred on the basis of the religion they profess and change
        of religion by members of scheduled tribes unlike in the case of




W.P.(Crl.) 1188/2009                                              Page 13 of 37
        the members of a scheduled caste will not deprive their status
        as the members of a scheduled tribe. It also follows that the
        descendants of a scheduled tribe converted to some other
        religion also will be entitled to the status of scheduled tribe.
        Therefore, the fact that the third respondent is a Christian and
        a descendant of a member of a scheduled tribe, Mala Araya
        who had converted to Christianity will not deprive his status as
        a member of scheduled tribe, Mala Araya in this case. Hence,
        the contention of the petitioners that the third respondent, being
        a convert to Christianity which does not recognise the caste
        system, is not a member of scheduled tribe and as such the
        provisions of Scheduled Castes & Scheduled Tribes (Prevention
        of Atrocities) Act are not applicable to him, is not sustainable.
        12. The petitioners have contended that the allegation made by
        the third respondent in the F.I. statement copy of which is
        marked as Annexure C to this petition that no ingredients of the
        offence punishable under S. 3(1)(x) of the Scheduled Castes &
        Scheduled Tribes (Prevention of Atrocities) Act disclosed is not
        sustainable. Under S. 3(1)(x) of the Act if a person not being a
        member of a scheduled caste or a scheduled tribe intentionally
        insults or intimidates with intent to humiliate a member of a
        scheduled caste or a scheduled tribe in any place within public
        view is liable for punishment provided under that clause. It is
        clear from Annexure C, F.I. statement that the third respondent
        has alleged that the petitioners used to abuse him and call his
        tribe name Mala Arayan audible to others and on 11-3-1995 by
        about 6 p.m. while he was returning from his work the first
        petitioner called (Vernacular matter omitted ....Ed.) which is
        heard by the neighbours mentioned in the F.I. statement.
        Therefore, the allegations made in Annexure C, F.I. statement
        are sufficient, prima facie to constitute an offence punishable
        under S. 3(1)(x) of the Act. The question whether the petitioners
        are guilty of the offence is a matter to be decided by the trial
        Court after adducing evidence and that fact cannot be
        considered by this Court in the above petition filed under
        Section 482 of the Code of Criminal Procedure.




W.P.(Crl.) 1188/2009                                             Page 14 of 37
PETITIONERS' REJOINDER
16.     In rejoinder, Ms. Indu Malhotra, learned senior counsel pointed out
that the film had been awarded The Nargis Dutt Award for best feature film
on national integration at the 57th National Film Awards held in the year
2009. She pointed out that though the jury for the award was appointed by
the Directorate of Film Festivals in India, yet neither the Government nor
the Directorate had influence over which films were selected for
consideration and which films ultimately won the awards.

ARTICLE 19(1)(A) OF THE CONSTITUTION GUARANTEES NOT ONLY
FREEDOM OF SPEECH BUT ALSO FREEDOM AFTER SPEECH

17.     Having heard the learned counsel for parties, this Court would like to
emphasise that the Constitution of India guarantees every citizen the right to
freedom of speech and expression. In fact, a film is an expression of an idea
which is protected by Article 19(1)(a) of the Constitution of India. Article
19(2) sets out the heads under which restrictions can be imposed under this
right. Articles 19(1)(a) and 19(2) of the Constitution of India read as under:-
        19. Protection of certain rights regarding freedom of speech,
        etc.--(1) All citizens shall have the right--

        (a) to freedom of speech and expression;

                xxx        xxx          xxx

        (2) Nothing in sub-clause (a) of clause (1) shall affect the
        operation of any existing law, or prevent the State from making
        any law, in so far as such law imposes reasonable restrictions
        on the exercise of the right conferred by the said sub-clause in
        the interests of [the sovereignty and integrity of India,] the
        security of the State, friendly relations with Foreign States,




W.P.(Crl.) 1188/2009                                            Page 15 of 37
        public order, decency or morality or in relation to contempt of
        court, defamation or incitement to an offence.]

18.     India is also a party to the International Covenant on Civil and
Political Rights and, therefore, bound to respect the right to freedom of
expression. The relevant portion of the International Covenant on Civil and
Political Rights is reproduced hereinbelow:-
         Article 19
        1.     Everyone shall have the right to hold opinions without
        interference.

        2.     Everyone shall have the right to freedom of expression;
        this right shall include freedom to seek, receive and impart
        information and ideas of all kinds regardless of frontiers, either
        orally, in writing or in print, in the form of art, or through any
        other media of his choice...........

19.     Even Article 10 of the European Convention of Human Rights and
Fundamental Freedom states as under:-
                            "ARTICLE 10
                       Freedom of Expression
        1.     Everyone has the right to freedom of expression. This
        right shall include freedom to hold opinions and to receive and
        impart information and ideas without interference by public
        authority and regardless of frontiers. This Article shall not
        prevent States from requiring the licensing of broadcasting,
        television or cinema enterprises..

        2.     The exercise of these freedoms, since it carries with it
        duties and responsibilities, may be subject to such formalities,
        conditions, restrictions or penalties as are prescribed by law
        and are necessary in a democratic society in the interests of
        national security, territorial integrity or public safety, for the




W.P.(Crl.) 1188/2009                                             Page 16 of 37
        prevention of disorder or crime, for the protection of health or
        morals, for the protection of the reputation or rights of others,
        for preventing the disclosure of information received in
        confidence, or for maintaining the authority and impartiality of
        the judiciary."

20.     At first blush, it may appear that Article 19(2) and second paragraph
of Article 10 virtually take away the right guaranteed by Article 19(1)(a) and
the first paragraph of Article 10.       However, the Supreme Court in S.
Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574 quoted with
approval the following passage from the judgment of the European Court in
Handyside v. United Kingdom, 1976 EHRR 737 wherein it was held as
under:-
               The court`s supervisory functions oblige it to pay the
        utmost attention to the principles characterizing a democratic
        society`. Freedom of expression constitutes one of the essential
        foundations of such a society, one of the basic conditions for its
        progress and for the development of every man. Subject to
        Article 10(2), it is applicable not only to information` or
        ideas` that are favourably received or regarded as inoffensive
        or as a matter of indifference, but also to those that offend
        shock or disturb the State or any sector of the population. Such
        are the demands of pluralism, tolerance and broadmindedness
        without which there is no democratic society`. This means,
        amongst other things that every formality, condition`,
        restriction` or penalty` imposed in this sphere must be
        proportionate to the legitimate aim pursued.

21.     Our written Constitution guarantees not only freedom of speech but
also freedom after speech. Mario Cuomo, former Governor of New York
while speaking about press freedom in conjunction with the First
Amendment stated that Founding Fathers despite knowing the dangers of a




W.P.(Crl.) 1188/2009                                             Page 17 of 37
free press, had chosen to gamble on liberty. According to Mario, the said
gamble had in the long run made the society "rich and happy". [See Article
titled 'Media under siege: Do journalists need regulators?' published in The
Indian Advocate, Volume XXXVII, 2010-2011]
22.     The Supreme Court in S. Rangarajan (supra) also laid emphasis on a
purposive, wide and expansive interpretation to be placed on Article
19(1)(a) of the Constitution. In the said judgment, it observed as under:-
        53. We end here as we began on this topic. Freedom of
        expression which is legitimate and constitutionally protected,
        cannot be held to ransom by an intolerant group of people. The
        fundamental freedom under Article 19(1)(a) can be reasonably
        restricted only for the purposes mentioned in Article 19(2) and
        the restriction must be justified on the anvil of necessity and not
        the quicksand of convenience or expediency. Open criticism of
        government policies and operations is not a ground for
        restricting expression. We must practice tolerance to the views
        of others. Intolerance is as much dangerous to democracy as to
        the person himself. 

23.     Recently, the Supreme Court in S. Khushboo vs. Kanniammal &
Anr. (2010) 5 SCC 600 highlighted the approach to be adopted by courts
while interpreting Article 19(1)(a) vis a vis Article 19(2) of the Constitution
of India. The Supreme Court in S. Khushboo (supra) observed as under:-
        " 44. .....The threshold for placing reasonable restrictions on the
        freedom of speech and expression" is indeed a very high one and
        there should be a presumption in favour of the accused in such
        cases.......

        45. Even though the constitutional freedom of speech and
        expression is not absolute and can be subjected to reasonable
        restrictions on grounds such as "decency and morality" among
        others, we must lay stress on the need to tolerate unpopular







W.P.(Crl.) 1188/2009                                              Page 18 of 37
        views in the sociocultural space. The Framers of our
        Constitution recognized the importance of safeguarding this
        right since the free flow of opinions and ideas is essential to
        sustain the collective life of the citizenry. While an informed
        citizenry is a precondition for meaningful governance in the
        political sense, we must also promote a culture of open
        dialogue when it comes to societal attitudes.

24.     In the opinion of this Court, freedom of expression is of inestimable
value in a democratic society based on the rule of law. While it is true that
many competing values like right to reputation, national integrity,
sovereignty, decency and morality are equally important but as Charles
Bradlaugh, famously observed: Better a thousandfold abuse of free speech
than denial of free speech. The abuse dies in a day, but the denial slays the
life of the people and entombs the hopes of the race. [See Article titled
'Freedom of Expression and the Indian Constitution' published in
Constitutional Perspectives - Essays in Honour and Memory of H.M.
Seervai'.]

THOUGH CENSORSHIP OF FILMS CONSTITUTING PRIOR RESTRAINT
IS JUSTIFIED UNDER THE INDIAN CONSTITUTION, YET THE
CENSORS HAVE TO MAKE A SUBSTANTIAL ALLOWANCE IN FAVOUR
OF FREEDOM, THEREBY LEAVING A VAST AREA FOR CREATIVE ART
TO INTERPRET LIFE
25.     In K.A. Abbas Vs. The Union of India & Anr., 1970 (2) SCC 780 ,
the Supreme Court after holding that the censorship of films constituting
prior restraint was justified under the Indian Constitution held that the
censors have to make a substantial allowance in favour of freedom, thereby
leaving a vast area for creative art.     The relevant observations of the
Supreme Court in the aforesaid judgment are as under:-




W.P.(Crl.) 1188/2009                                           Page 19 of 37
        49.We may now illustrate our meaning how even the items
        mentioned in the directions may figure in films subject either to
        their artistic merit or their social value over-weighing their
        offending character. The task of the censor is extremely delicate
        and his duties cannot be the subject of an exhaustive set of
        commands established by prior ratiocination. But direction is
        necessary to him so that he does not sweep within the terms of
        the directions vast areas of thought, speech and expression of
        artistic quality and social purpose and interest. Our standards
        must be so framed that we are not reduced to a level where the
        protection of the least capable and the most depraved amongst
        us determines what the morally healthy cannot view or read.
        The standards that we set for our censors must make a
        substantial allowance in favour of freedom thus leaving a vast
        area for creative art to interpret life and society with some of
        its foibles along with what is good, We must not look upon such
        human relationships as banned in toto and forever from human
        thought and must give scope for talent to put them before
        society. The requirements of art and literature include within
        themselves a comprehensive view of social life and not only in
        its ideal form and the line is to be drawn where the average
        moral man begins to feel embarrassed or disgusted at a naked
        portrayal of life without the redeeming touch of art or genius or
        social value. If the depraved begins to see in these things more
        than what an average person would, in much the same way, as
        it is wrongly said, a Frenchman sees a woman's legs in
        everything, it cannot be helped. In our scheme of things ideas
        having redeeming social or artistic value must also have
        importance and protection for their growth. Sex and obscenity
        are not always synonymous and it is wrong to classify sex as
        essentially obscene or even indecent or immoral. It should be
        our concern, however, to prevent the use of sex designed to play
        a commercial role by making its own appeal. This draws in the
        censors scissors. Thus audiences in India can be expected to
        view with equanimity the story of Oedipus son of Latius who
        committed patricide and incest with his mother. When the seer
        Tiresias exposed him, his sister Jocasta committed suicide by
        hanging herself and Oedipus put out his own eyes. No one after




W.P.(Crl.) 1188/2009                                            Page 20 of 37
        viewing these episodes would think that patricide or incest with
        one's own mother is permissible or suicide in such
        circumstances or tearing out one's own eyes is a natural
        consequence. And yet if one goes by the letter of the directions
        the film cannot be shown. Similarly, scenes depicting leprosy as
        a theme in a story or in a documentary are not necessarily
        outside the protection. If that were so Verrier Elwyn's Phulmat
        of the Hills or the same episode in Henryson's Testament of
        Cresseid (from where Verrier Elwyn borrowed the idea) would
        never see the light of the day. Again carnage and bloodshed
        may have historical value and the depiction of such scenes as
        the sack of Delhi by Nadirshah may be permissible, if handled
        delicately and as part of an artistic portrayal of the
        confrontation with Mohammad Shah Rangila. If Nadir Shah
        made golgothas of skulls, must we leave them out of the story
        because people must be made to view a historical theme
        without true history? Rape in all its nakedness may be
        objectionable but Voltaire's Candide would be meaningless
        without Cunegonde's episode with the soldier and the story of
        Lucrece could never be depicted on the screen.
        50. Therefore it is not the elements of rape, leprosy, sexual
        immorality which should attract the censor's scissors but how
        the theme is handled by the producer. It must, however, be
        remembered that the cinematograph is a powerful medium and
        its appeal is different. The horrors of war as depicted in the
        famous etchings of Goya do not horrify one so much as the
        same scenes rendered in colour and with sound and movement,
        would do. We may view a documentary on the erotic tableaux
        from our ancient temples with equanimity or read the
        Kamasutra but a documentary from them as a practical sexual
        guide would be abhorrent.

RESPONDENT NO. 2-COMPLAINANT'S SUBMISSION THAT AN FIR
UNDER INVESTIGATION CANNOT BE QUASHED IS UNTENABLE IN
LAW
26. The respondent no. 2-complainant's submission that an FIR under
investigation cannot be quashed is untenable in law. In State of Haryana &



W.P.(Crl.) 1188/2009                                            Page 21 of 37
Ors. vs. Bhajan Lal & Ors., AIR 1992 SC 604, the Supreme Court has held
as under:-
        108. In the backdrop of the interpretation of the various
        relevant provisions off the Code under Chapter XIV and of the
        principles of law enunciated by this Court in a series of
        decisions relating to the exercise of the extraordinary power
        under Article 226 or the inherent powers under Section 482 of
        the Code which we have extracted and reproduced above, we
        give the following categories of cases by way of illustration
        wherein such power could be exercised either to prevent abuse
        of the process of any Court or otherwise to secure the ends of
        justice, though it may not be possible to lay down any precise,
        clearly defined and sufficiently channelised and inflexible
        guidelines or rigid formulae and to give an exhaustive list of
        myriad kinds of cases wherein such power should be exercised:

        1. Where the allegations made in the First Information Report
           or the complaint, even if they are taken at their face value
           and accepted in their entirety do not prima facie constitute
           any offence or make out a case against the accused.
        2. Where the allegations in the First Information Report and
           other materials, if any, accompanying the F.I.R. do not
           disclose a cognizable offence, justifying an investigation by
           police officers under Section 156(1) of the Code except
           under an order of a Magistrate within the purview of Section
           155(2) of the Code.
        3. Where the uncontroverted allegations made in the FIR or
           complaint and the evidence collected in support of the same
           do not disclose the commission of any offence and make out
           a case against the accused.
        4. Where, the allegations in the F.I.R. do not constitute a
           cognizable offence but constitute only a non-cognizable
           offence, no investigation is permitted by a police officer
           without an order of a Magistrate as contemplated under
           Section 155(2) of the Code.
        5. Where the allegations made in the FIR or complaint are so
           absurd and inherently improbable on the basis of which no




W.P.(Crl.) 1188/2009                                            Page 22 of 37
           prudent person can ever reach a just conclusion that there is
           sufficient ground for proceeding against the accused.
        6. Where there is an express legal bar engrafted in any of the
           provisions of the Code or the concerned Act (under which a
           criminal proceeding is instituted) to the institution and
           continuance of the proceedings and/or where there is a
           specific provision in the Code or the concerned Act,
           providing efficacious redress for the grievance of the
           aggrieved party.
        7. Where a criminal proceeding is manifestly attended with
           mala fide and/or where the proceeding is maliciously
           instituted with an ulterior motive for wreaking vengeance on
           the accused and with a view to spite him due to private and
           personal grudge."

27.     Undoubtedly, the power vested in this Court to quash FIRs under
Articles 226 and 227 of the Constitution of India and Section 482 Cr.P.C. is
to be used sparingly and for rare and compelling circumstances as
mentioned in Bhajan Lal & Ors. (supra), but it does not mean that if an FIR
falls within one of the 'pigeonholes' mentioned in the said judgment, it shall
not be quashed.
28.     The judgments relied upon by the learned counsel for respondent no.
2-complainant being of the different High Courts cannot and do not depart
from the principle laid down by the Supreme Court in Bhajan Lal &
Ors.(supra). In fact, the judgment of this Court in Rajiv Kumar Sadh vs.
Govt. of NCT Delhi (supra) is based upon the judgment of the Supreme
Court in K.M. Mathew v. State of Kerala, AIR 1992 SC 2207 which itself
has been over-ruled in Adalat Prasad vs. Rooplal Jindal & Ors., (2004) 7
SCC 338.
29.     The Supreme Court while quashing an FIR in State of U.P. v. R.K.
Srivastava, (1989) 4 SCC 59 has held as under:-



W.P.(Crl.) 1188/2009                                            Page 23 of 37
        "4. It is now a well-settled principle of law that if the
        allegations made in the FIR are taken at their face value and
        accepted in their entirety do not constitute an offence, the
        criminal proceedings instituted on the basis of such FIR should
        be quashed. In the instant case, on the basis of the said FIR the
        respondent and the said P.C. Saxena and Shri Sarwant Singh
        were charged under Sections 120-B, 420, 468 and 471 IPC and
        Section 5(2) read with Section 5(1)(d) of the Prevention of
        Corruption Act, 1947. According to the appellant, as no prima
        facie case was made out against Smt Rajwant Kaur, wife of Shri
        Sarwant Singh, she has been dropped from the array of the
        accused persons.

        5. The question is whether the facts disclosed in the FIR
        constitute the offences with which the accused have been
        charged. It is manifestly clear from the allegations in the FIR
        that the respondent or the other accused had no intention
        whatsoever to make any wrongful gain or to make any wrongful
        loss to the Bank. They had accepted the said three cheques
        amounting to Rs 54,600 and sent the same for clearance after
        debiting the LOC account. The said cheques have been
        encashed and the money was received by State Bank of India. It
        may be that there was some delay in crediting the LOC account
        or that the money against the three cheques were credited in the
        accounts of the said Shri Sarwant Singh and his wife, but the
        allegations made either in the FIR or in the charge-sheet do not
        show that the respondent and the said P.C. Saxena had acted
        dishonestly, that is to say, acted with a deliberate intention to
        cause wrongful gain or wrongful loss. In our opinion, the High
        Court has rightly held that the allegations made in the FIR do
        not constitute any offence of cheating, nor do they constitute
        any offence of forgery. It is true that it has been alleged that the
        said sum of Rs 54,600 was withdrawn on the basis of false
        credit entries made in the books of accounts of the Bank and
        connected credit and debit vouchers were also prepared and
        passed by the respondent and the other accused. When the said
        sum of Rs 54,600 had been allowed to be withdrawn by the said
        Shri Sarwant Singh and his wife, necessary entries had to be




W.P.(Crl.) 1188/2009                                               Page 24 of 37
        made in the books of accounts, but it is not understandable how
        these entries can be characterised as false entries. No document
        has been referred to in the FIR as the outcome of forgery.

        6. The High Court has rightly held that as the criminal
        proceedings have been started against the respondent on the
        basis of an FIR which does not contain any definite accusation,
        it amounts to an abuse of process of the court and, as such, is
        liable to be quashed. We entirely agree with the view expressed
        by the High Court."

30.     Consequently, this Court has the power to quash an FIR under
investigation at the initial stage itself.

THE TEST TO DETERMINE WHETHER A MOVIE FALLS FOUL OF
FREEDOM OF EXPRESSION

31.     In the present case, this Court finds that the impugned FIR is based on
a few expressions and scenes in the film taken in isolation. But the test to
determine whether a movie falls foul of freedom of expression guaranteed
by the Constitution is to view the film in its entirety and examine its overall
impact. In fact, this Court is of the view that it has to take into consideration
what effect the movie is likely to produce on the minds of its viewers for
whom the movie was intended.
32.     Also, the effect of the words and scenes have to be judged from the
standards of a reasonable, strong minded, firm and courageous man and not
from that of a weak and vacillating mind. [See Bhagwati Charan Shukla
Vs. Provincial Government, AIR 1947 Nagpur 1.]




W.P.(Crl.) 1188/2009                                              Page 25 of 37
A FILM THAT CARRIES A MESSAGE THAT THE SOCIAL EVIL IS EVIL
CANNOT BE MADE IMPERMISSIBLE ON THE GROUND THAT IT
DEPICTS THE SOCIAL EVIL

33.     Certainly, no film that extols the social evil or encourages it is
permissible, but a film that carries a message that the social evil is evil
cannot be made impermissible on the ground that it depicts the social evil.
[See Bobby Art International & Ors. Vs. Om Pal Singh Hoon & Ors.
(supra)].
34.     This Court is of the opinion that the respondent no.2-complainant has
committed a fundamental error in not appreciating that a film that carries a
message that a social evil is evil, cannot be banned on the ground that it
depicts the social evil. It has to be borne in mind that a film that illustrate
consequences of social evil, must necessarily show that evil. It is in this
context that the expressions 'Bhangan', Saali' and 'Sudhikaran' have been
referred to in the film.

EFFECT OF CERTIFICATE ISSUED BY CBFC : SECTION 5-A OF THE
CINEMATOGRAPH ACT AND SECTION 79 IPC CONSTITUTE AN
EXPRESS LEGAL BAR TO THE INSTITUTION AND CONTINUANCE OF
CRIMINAL PROCEEDINGS

35.     The present film was released in theatres after it was issued a valid
certificate by CBFC. Sections 5-A and 5-B(2) of The Cinematograph Act
and the Guidelines framed thereunder read as under:-
a)      Section 5-A
      "5-A. Certification of films. ­ (1) If, after examining a film or
      having it examined in the prescribed manner, the Board
      considers that ­




W.P.(Crl.) 1188/2009                                            Page 26 of 37
      (a) The film is suitable for unrestricted public exhibition, or, as
      the case may be, for unrestricted public exhibition with an
      endorsement of the nature mentioned in the proviso to clause (i)
      of sub-section (1) of Section 4, it shall grant to the person
      applying for a certificate in respect of the film a "U" certificate
      or, as the case may be, a "UA" certificate ; or ............"

b)      Section 5-B
      "5-B. Principles for guidance in certifying films. ­
                 xxxx          xxxx         xxxx          xxxx
      (2) Subject to the provisions contained in sub-section (1) the
      Central Government may issue such directions as it may think fit
      setting out the principles which shall guide the authority
      competent to grant certificates under this Act in sanctioning films
      for public exhibition.

c)      Guidelines
      "Under section 5B(2) the Central Government has issued the
      following guidelines.

      A film is judged in its entirety from the point of view of its overall
      impact and is examined in the light of the period depicted in the
      film and the contemporary standards of the country and the
      people to whom the film relates, provided that the film does not
      deprave the morality of the audience. Guidelines are applied to
      the titles of the films also.

      1. Objectives of Film Certification

      i) the medium of film remains responsible and sensitive to the
      values and standards of society;

      ii) artistic expression and creative freedom are not unduly
      curbed;

      iii) certification is responsible to social changes;




W.P.(Crl.) 1188/2009                                               Page 27 of 37
      iv) the medium of film provides clean and healthy entertainment;
      and

      v) as far as possible, the film is of aesthetic value and
      cinematically of a good standard.

      2. In pursuance of the above objectives, the CBFC shall ensure
      that

      i) anti social activities such as violence are not glorified or
      justified

      ii) the modus operandi of criminals, other visuals or words likely
      to incite the commission of any offence are not depicted;

      iii) scenes -
      a. showing involvement of children in violence as victims or
      perpetrators or as forced witnesses to violence, or showing
      children as being subjected to any form of child abuse.

      b. showing abuse or ridicule of physically and mentally
      handicapped persons; and

      c. showing cruelty to, or abuse of animals, are not presented
      needlessly

      iv) pointless or avoidable scenes of violence, cruelty and horror,
      scenes of violence primarily intended to provide entertainment
      and such scenes as may have the effect of de-sensitising or de-
      humanising people are not shown;

      v) scenes which have the effect of justifying or glorifying drinking
      are not shown;

      vi) scenes tending to encourage, justify or glamorise drug
      addiction are not shown;
      a. scenes tending to encourage, justify or glamorise consumption
      of tobacco or smoking are not shown;




W.P.(Crl.) 1188/2009                                             Page 28 of 37
      vii) human sensibilities are not offended by vulgarity, obscenity
      or depravity;

      viii) such dual meaning words as obviously cater to baser
      instincts are not allowed;

      ix) scenes degrading or denigrating women in any manner are
      not presented;

      x) scenes involving sexual violence against women like attempt to
      rape, rape or any form of molestation or scenes of a similar
      nature are avoided, and if any such incidence is germane to the
      theme, they shall be reduced to the minimum and no details are
      shown
      xi) scenes showing sexual perversions shall be avoided and if
      such matters are germane to the theme they shall be reduced to
      the minimum and no details are shown

      xii) visuals or words contemptuous of racial, religious or other
      groups are not presented

      xiii) visuals or words which promote communal, obscurantist,
      anti-scientific and anti-national attitude are not presented

      xiv) the sovereignty and integrity of India is not called in
      question;

      xv) the security of the State is not jeopardized or endangered

      xvi) friendly relations with foreign States are not strained;

      xvii) public order is not endangered
      xviii) visuals or words involving defamation of an individual or a
      body of individuals, or contempt of court are not presented




W.P.(Crl.) 1188/2009                                              Page 29 of 37
      EXPLANATION: Scenes that tend to create scorn, disgrace or
      disregard of rules or undermine the dignity of court will come
      under the term ''Contempt of Court'' : and

      xix) national symbols and emblems are not shown except in
      accordance with the provisions of the Emblems and Names
      (Prevention of Improper Use) Act, 1950 (12 of 1950)

  3. The Board of Film Certification shall also 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 the period depicted in the films and the
      contemporary standards of the country and the people to which
      the film relates provided that the film does not deprave the
      morality of the audience.

  4. Films that meet the above ­ mentioned criteria but are considered
     unsuitable for exhibition to non-adults shall be certified for
     exhibition to adult audiences only.

  5.
  i) 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 shall be such that all the members of the
     family including children can view it together.

  ii) 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 maybe allowed to see such a film, the film
      shall be certified for unrestricted public exhibition with an
      endorsement to that effect.

  iii) 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 profession or any class of persons,




W.P.(Crl.) 1188/2009                                              Page 30 of 37
      the film shall be certified for public exhibition restricted to the
      specialized audiences to be specified by the Board in this behalf.

  6. The Board shall scrutinize the titles of the films carefully and
     ensure that they are not provocative, vulgar, offensive or
     violative of any of the above-mentioned guidelines."


36.     The Certificate issued by CBFC to the petitioners states "After
examination of the film by the members of the Examining Committee
mentioned below and on the recommendations of the said Examining
Committee, the Board hereby certifies that the film is fit for public exhibition
with an endorsement of caution that the question as to whether any child
below the age of 12 years may be allowed to see the film should be
considered by the parents or guardian of such child....." This Court is of the
view that the decision whether a film violates the restrictions embodied in
Article 19(2) of the Constitution of India, is best left to the sensibility of a
multi-member expert tribunal - the CBFC.          In T. Kannan Vs. Liberty
Creations Ltd. (supra), the Madras High Court held that the Censor Board
which is a multi member body constituted to gauge public reactions to films
should be permitted to go about their task except in cases of stark breach of
guidelines. Consequently, this Court is of the view that once a film has
obtained a clearance from CBFC, there is no reason why the Film should be
considered as hurting any community or caste's sentiments.
37.     In Raj Kapoor v. Laxman, (1980) 2 SCC 175 the Supreme Court held
that Section 5-A of The Cinematograph Act and Section 79 IPC constitute
an express legal bar to the institution and continuance of criminal
proceedings. The relevant extract of the aforesaid judgment is as under:-




W.P.(Crl.) 1188/2009                                             Page 31 of 37
        "3. The sole point for decision is the legal effect of the combined
        operation of Section 5-A of the Act and Section 79 IPC. But we
        will assume for purposes of argument that the facts stated in the
        complaint prima facie attract the offence under Section 292
        IPC. Supposing such a 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 Section 292 IPC?

        4. Section 79, IPC 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 Section 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 Section 79 demolishes
        the prosecution.

        5. Does a certificate issued under Section 5-A (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




W.P.(Crl.) 1188/2009                                              Page 32 of 37
        certificate and its effect that the certificate-holder is justified by
        law in exhibiting the film?
                    xxxx          xxxx          xxxx         xxxx

        7. ...........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 having elaborately enacted such a legislation can it be
        said that a certificate granted under it by expert authority can
        be stultified by a simple prosecution or a shower of
        prosecutions for an offence under Section 292 IPC, driving the
        producer to satisfy a lay Magistrate that the certificate of the
        Board of Censors notwithstanding, the film was offensive? The
        Board under Section 5-B has to consider, before certification,
        all the points Section 292 IPC prescribes..............
                       xxxx          xxxx         xxxx           xxxx

        9. 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 Section 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 Section 79 it is right for the




W.P.(Crl.) 1188/2009                                                  Page 33 of 37
        court to discharge the accused as the charge is groundless. In
        the present case, the prosecution is unsustainable because
        Section 79 is exculpatory when read with Section 5-A of the Act
        and the certificate issued thereunder. We quash the
        prosecution."

THE PRESENT FILM SEEN IN ITS ENTIRETY, GENERATES EMPATHY
FOR SCHEDULED CASTES AND SCHEDULED TRIBES. PRESENT
FILM IN NO MANNER SUPPORTS THE PRACTICE OF
UNTOUCHABILITY

38.     Upon the insistence of both the counsel, this Court has also viewed
the entire film. In fact, the film starts with a disclaimer that All names,
characters and incidents portrayed in this film are fictitious. Any
resemblance to any person living or dead, is purely coincidental.
39.     This Court further finds that the essence of the present movie is in the
initial verse that it quotes, namely, Zarre zarre mein usi ka noor
hai...jhaank khud mein woh na tujhse door hai..... ishq hai usase to sab se
ishq kar..... iss ibaadat ka yehi dustoor hai. The message of the film is
unambiguous as it clearly shows the main protagonist strongly opposes any
discrimination on the basis of caste, creed, race, religion etc.
40.     The film seeks to portray certain evils prevalent in our society, but it
does not cater to the prurient interest in any person. The film sends out an
unequivocal message that discriminatory practices must be curbed in the
present times, when all men and women are equal, regardless of their caste,
creed etc. The film further sends out a message that all these prejudices
referred to as ,,the Kala Bandar (Black Monkey) are all in our mind and
they must be eliminated.




W.P.(Crl.) 1188/2009                                               Page 34 of 37
41.     In order to create social consciousness about the issues plaguing the
Scheduled Caste community, the film maker by illustration has shown
atrocities that are committed against the said community. The film attempts
to expose the motives of persons who operate behind the scene to foment
conflicts and emphasizes the need for the society to rise above religious
barriers and treat one another with kindness, sympathy and affection. The
picture viewed in its entirety, is capable of creating a lasting impression of
message of peace and co-existence. In the opinion of this Court, the viewers
are not likely to be overwhelmed or carried away by the few stray scenes
referred to by the respondent no. 2-complainant in the FIR. In fact, the film
seen in its entirety, generates empathy for Scheduled Castes and Scheduled
Tribes.
42.       Section 3 of The Scheduled Castes and The Scheduled Tribes
(Prevention of Atrocities) Act, 1989 is applicable when a person
intentionally insults or intimidates with an intent to humiliate a member of
Scheduled Castes or Scheduled Tribes. There is no intention to insult the
members of Scheduled Castes/Scheduled Tribes community in any manner
in the present case.
43.     The film by no stretch of imagination preaches or approves the
practice of untouchability in any manner. The film in no manner supports
the practice of untouchability in any manner. The acts attributed to the
petitioners do not amount to preaching and practicing untouchability, within
the meaning of Section 7 of the Protection of Civil Rights Act, 1955.




W.P.(Crl.) 1188/2009                                           Page 35 of 37
CONCLUSION
44.     In view of the aforesaid discussion, this Court concludes as under:-
i)      Freedom of expression is of inestimable value in a democratic society
based on the rule of law. Our written Constitution guarantees not only
freedom of speech but also freedom after speech.
ii)     Though censorship of films constituting prior restraint is justified
under the Indian Constitution, yet the censors have to make a substantial
allowance in favour of freedom, thereby leaving a vast area for creative art
to interpret life and society with some of its foibles along with what is good.
Consequently, the film Delhi-6 being a piece of art, is entitled to protection
of Article 19(1)(a) of the Constitution of India.
iii)    The test to determine whether a movie falls foul of freedom of
expression guaranteed by the Constitution is to view the film in its entirety
and not to examine a few expressions and scenes of the film in isolation - as
sought to be done by the petitioners in the present FIR. The court will have
to take into consideration what effect the film will produce on the mind of
the viewer for whom the film is intended. The effect of the words and scenes
will have to be judged from the standards of a reasonable, strong minded,
firm and courageous man and not from that of a weak and vacillating mind.
iv)     A film that carries a message that the social evil is evil cannot be
made impermissible on the ground that it depicts the social evil. It has to be
borne in mind that a film that illustrate consequences of social evil, must
necessarily show that evil.
v)      The present film seen in its entirety, generates empathy for Scheduled
Castes and Scheduled Tribes. No intention to insult the members of
Scheduled Castes/Scheduled Tribes community can be attributed to the



W.P.(Crl.) 1188/2009                                             Page 36 of 37
petitioners in the present case. The present film in no manner supports the
practice of untouchability in any manner.        The acts attributed to the
petitioners do not amount to preaching and practicing untouchability, within
the meaning of Section 7 of the Protection of Civil Rights Act, 1955.
vi)     Section 5-A of The Cinematograph Act and Section 79 IPC constitute
an express legal bar to the institution and continuance of the proceedings
initiated by the respondent no. 2-complainant. In fact, the certificate issued
by CBFC furnishes a complete legal justification to the petitioner for public
exhibition of the film and exonerates them from offences under IPC, The
Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act,
1989 as well as The Protection of Civil Rights Act, 1955.
vii)    This Court has the power to quash an FIR under investigation at the
initial stage itself.

45.     Consequently, the present petition is allowed and FIR No.40/2009
dated 07th March, 2009 registered with Police Station Mandir Marg, New
Delhi under Section 3(1)(x) of The Scheduled Castes and The Scheduled
Tribes (Prevention of Atrocities) Act, 1989 read with Section 7(d) of the
Protection of Civil Rights Act, 1955 is quashed, but without any order as to
costs. With the aforesaid observations, the present petition and application
stand disposed of.


                                                       MANMOHAN, J
JANUARY 02, 2013
js/rn




W.P.(Crl.) 1188/2009                                           Page 37 of 37
 
 
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