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PETITIONER: RAJKAPOOR S/O PRITHVIRAJ KAPOOR

       Vs.

RESPONDENT: LAXMAN S/O KISHANLAL GAVAI

DATE OF JUDGMENT14/12/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PATHAK, R.S.

CITATION:  1980 AIR  605            1980 SCR  (2) 512  1980 SCC  (2) 175  CITATOR INFO :  D          1981 SC1196  (5)  RF         1988 SC 775  (17,19)

ACT:      Indian Penal  Code 1860  (45 of  1860), Ss.  79 and 292 Cinematograph Act  1952-S. 5A(1A)-Cinema film granted censor certificate for  public exhibition-Complaint  for posecution of producer  that film  is obscene,  corrupts public morals- Such prosecution whether sustainable.      Words and  phrases-’Justified’-Meaning of-Indian  Penal Code 1860, S.79

HEADNOTE:      Section 79  I.P.C. provides  that nothing is an offence which is done by any person who is justified by law in doing it, or,  who by  reason of  a mistake of fact in good faith, believes himself to be justified by law, in doing it.      The respondent-complainant alleged that the film Satyam Shivam Sundaram  was by  its fascinating  title misleadingly foul and  beguiled the  guideless into  degeneracy and  that obscenity,  indecency  and  vice  were  writ  large  on  the picture, constituting  an offence  under s.  292 I.P.C.  The Magistrate after  examining some  witnesses, took cognizance of the  offence and  issued notice to the appellant-producer of the  film. Thereupon  the appellant  moved the High Court under section  482 Cr.  P.C. on  the score that the criminal proceeding was  an abuse of the judicial process and that no prosecution could  be legally sustained as the film had been duly certified  for public show by the Central Board of Film Censors. The High Court, however dismissed the petition.      In the  appeal to this Court it was contended on behalf of the  appellant that once a certificate sanctioning public exhibition of  a film  had been  granted  by  the  competent authority under  the Cinematograph  Act, 1952,  there was  a justification for  its display  thereafter, and by virtue of the antidotal  provisions in  section 79  I.P.C., the public exhibition, circulation or distribution of the film, even if it be  obscene, lascivious  or tending to deprave or corrupt public morals,  could not  be  an  offence,  s.  292  I.P.C. notwithstanding.      Allowing the appeal, ^

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    HELD:  1.  The  prosecution  is  unsustainable  because section 79  I.P.C. is exculpatory when read with section 5-A of the  Cinematograph Act,  1952 and  the certificate issued thereunder, and is therefore quashed. [517 G]      2. It  is an  antinomy to say that under section 5A(1A) of the  Act, the  Board certifies  a film  as  suitable  for public exhibition  and for section 292 I.P.C. to punish such exhibition unless  the ground  covered by  the two  laws  be different. [516 B]      3. The  Penal Code is general, the Cinematograph Act is special. The  scheme of  the latter is deliberately drawn up to meet  the explosively  expanding cinema menace if it were not strictly  policed. The  cinema is a great instrument for public good  if geared  to social  ends and  can be a public curse if directed to 513 anti-social objectives.  So the  Act  sets  up  a  Board  of Censors of  high calibre  and expertise,  provides hearings, appeals and  ultimate judicial review, the precensorship and conditional exhibitions  and other  policing  strategies  to protect state and society. [516D; G-H]      4. Neither the Penal Code nor the Cinematograph Act can go beyond  the restrictions  sanctioned by  Part III  of the Constitution and once the special law polices the area it is pro tanto  out of  bounds for  the general  law. Section  79 I.P.C. resolves  the apparent  conflict between  section 292 I.P.C. and  part II  of the Act relating to certification of films. If  the Board  blunders, the  Act provides  remedies. [517 B-C]      5. Jurisprudentially  viewed, an act may be an offence, definitionally speaking;  but a  forbidden act may not spell inevitable guilt  if the law itself declares that in certain special circumstances,  it is  not  to  be  regarded  as  an offence. The  chapter on General Exceptions operates in this province. Section  79 makes  an offence, a non-offence, only when the  offending act  is actually  justified by law or is bona fide  believed by  mistake of  fact to be so justified. [517 E]      6. Once  the Board  of  Censors,  acting  within  their jurisdiction and  on an application made and pursued in good faith, sanctions  the  public  exhibition  of  a  film,  the producer and  connected agencies enter the statutory harbour and are  protected because  s. 79 exonerates them in view of the bona  fide belief that the certificate is justificatory. [517 F]      7. Freedom  of expression is fundamental. The Censor is not  the  moral  tailor  setting  his  own  fashions  but  a statutory gendarme  policing films  under Article 19(2) from the angle  of public  order, decency  or  morality  concepts themselves dynamic,  and which  cannot be  whittled down  to strifle expression  nor licentiously  enlarged to  promote a riot of sexual display. [518 E]      K. A.  Abbas v.  The Union of India & Anr. [1971] 2 SCR 446; referred to

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 773 of 1979.      Appeal by  Special Leave  from the  Judgment and  Order dated 13-8-1979  of the  Madhya Pradesh  High Court in Misc. Criminal Case No. 279/79.      Mrs. K. Hingorani for the Appellant.      The Judgment of the Court was delivered by

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    KRISHNA IYER,  J.-Sublime titles of cinematograph films may enchant  or entice and only after entry into the theatre the intrinsic  worth of the picture dawns on the viewer. The experience may transform because the picture is great or the audience may  lose lucre  and culture  in the  bargain. Mere titles may  not, therefore,  attest  the  noxious  or  noble content of  the film.  Sometimes the  same film  may produce contrary impacts  and what one regards as lecherous, another may consider  elevating. Be  that as it may a well published film Satyam, Sivam, Sundaram became 514 the subject  matter of  a prosecution  presumably a pro bono publico proceeding, by the respondent against the petitioner and  others  who  are  the  producer,  actor,  photographer, exhibitor  and  distributor  of  that  film.  The  complaint alleged that the fascinating title was misleadingly foul and beguiled the  guileless into  degeneracy. If the gravamen of this accusation were true, obscenity, indecency and vice are writ large  on the picture, constituting an offence under s. 292 I.P.C.  The Magistrate,  after examining some witnesses, took cognizance  of the  offence and  issued notice  to  the accused.  Thereupon,   the  producer,  namely,  the  present petitioner, moved  the High  Court under  s. 482 Cr. P.C. on the score  that the  criminal proceeding was an abuse of the judicial process  and engineered  by ulterior considerations and that  no prosecution  could be  legally sustained in the circumstances  of  the  case,  the  film  having  been  duly certified for  public show by the Board of Censors. The High Court,  however,   dismissed  the   petition,  ignoring  the contention that  the film  had been given ’A’ certificate by the Central  Board  of  Film  Censors  and  finding  in  the prosecution nothing  frivolous or vexatious nor any material to quash  the proceedings.  The aggrieved  film producer has arrived in  this Court  hopefully, and pressed before us one principal objection founded on s. 79 I.P.C. to neutralise s. 292 I.P.C.  We do  not find  this contention apparent in the High Court’s  judgment, but since the facts are admitted and the question  of law  is of  some moment,  we have chosen to hear the  petitioner on  the invalidatory  plea that  once a certificate sanctioning public exhibition of a film has been granted by  the competent  authority under the Cinematograph Act, 1952 (for short, the Act), there is a justification for its display  thereafter, and  by  virtue  of  the  antidotal provisions  in   s.  79   of  the  Penal  Code,  the  public exhibition, circulation or distribution or the production of the film,  even if  it be  obscene, lascivious or tending to deprave or  corrupt public  morals, cannot be an offence, s. 292 I.P.C. notwithstanding. The absolution is based upon the combined operation  of s.  5A of  the Act  and s.  79 of the Penal Code.      The issue is of some importance since the cinema is one of the  major mass  media with  millions of viewers and many millions in  investment. The respondent-complainant, despite notice having  been served on him, did not enter appearance. We  requested   the  Additional   Solicitor  General,   Shri Banerjee, to  help the court unravel the legal tangle and he responded  promptly   and  eruditely   rendered  industrious assistance. We  record our  appreciation of  the services of Shri Banerjee.      The sole  point for decision is the legal effect of the combined operation  of s. 5A of the Act and s. 79 I.P.C. But we will  assume for  purposes of  argument  that  the  facts stated in the complaint prima facie 515 attract the  offence under s. 292 I.P.C. Supposing such film

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has been  certified by  the Central  Board of  Film Censors, acting within  their jurisdiction  under  the  Act,  thereby sanctioning the  public exhibition  of  the  film,  does  it furnish a  justification in  law in  doing the act which, in the absence of such certification, may constitute an offence under s. 292 I.P.C. ?      Section 79 I.P.C. runs thus:           79. Nothing  is an  offence which  is done  by any      person who  is justified  by law, or who by reason of a      mistake of  fact and  not by reason of a mistake of law      in good faith, believes himself to be justified by law,      in doing it. The argument  is irresistible that if the performance of the act which  constitutes the offence is justified by law, i.e. by some  other provision,  then s.  79 exonerates  the  doer because the  act ceases  to be  an offence. Likewise, if the act were  done by one "who by reason of a mistake of fact in good faith  believes himself to be justified by law in doing it" then  also, the  exception operates  and the  bona  fide belief, although  mistaken, eliminates  the culpability. The resolution of  the problem  raised in this case thus becomes simplified. If  the offender  can irrefutably establish that he is  actually justified  by  law  in  doing  the  act  or, alternatively, that  he entertained a mistake of fact and in good  faith  believed  that  he  was  justified  by  law  in committing the act, then, the weapon of s. 79 demolishes the prosecution.      Does a  certificate issued  under s.  5A(1A) of the Act amount to  justification in law for public exhibition of the film, be  it obscene  or not,  or,  at  any  rate,  does  it generate a  belief induced by a mistake of fact, namely, the issuance  of   the  certificate  and  its  effect  that  the certificate-holder is  justified by  law in  exhibiting  the film ?      We are  thrown back  upon a study of the anatomy of the Cinematograph Act and the efficacy of a certificate under s. 5A as  a justification within the meaning of s. 79 of I.P.C. "Justified" according to Black’s Legal Dictionary means:           Done on adequate reasons sufficiently supported by      credible evidence,  when weighed  by unprejudiced mind,      guided by common sense and by correct rules of law. The Shorter  Oxford English  Dictionary assigns this meaning for "justification".           The showing  in  court  that  one  had  sufficient      reason for  doing that  which i.e. is called to answer;      the ground for such a plea. 516 Lexically, the sense is clear. An act is justified by law if it is  warranted, validated  and made blameless by law. Is a legal sanction  permitting a thing a legal justification for doing it  ? Maybe,  there is  a fine  semantic shade between mere legal  sanction, which  is  passive,  and  clear  legal justification which  is active.  For the work-a-day world of meanings, between  ’permissive’  and  ’justificative’  ’thin partition do  their bounds divide’. It is an antinomy to say that under  s. 5A(1A)  of the Act the Board certifies a film as suitable  for public  exhibition and for s. 292 I.P.C. to punish such  exhibition unless the ground covered by the two laws be  different. Although it may be plausible to say that what is  merely certified  as suitable for show by a law may not go  the length  of holding  that it is justified by law. Such niceties  need not  deter us once we grasp the sweep of the Cinematograph Act.      Indeed, the  Penal Code  is general,  the Cinematograph Act is  special. The  scheme of  the latter  is deliberately

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drawn up  to meet the explosively expanding cinema menace if it were  not strictly  policed. No  doubt, the  cinema is  a great instrument  for public  good if  geared to social ends and can  be  a  public  curse  if  directed  to  anti-social objectives. The  freedom of  expression,  the  right  to  be equally treated  and the  guarantee of  fair hearing  before heavy investments  in films  are destroyed  belong to Indian citizens under  the  Constitution.  But  all  freedom  is  a promise, not a menace and, therefore, is subject to socially necessary restraints  permitted by  the Constitution. Having regard to  the instant  appeal of  the motion  picture,  its versatility, realism, and its coordination of the visual and aural senses.  what with the art of the cameraman with trick photography,    vistavision     and    three     dimensional representation, the  celluloid art  has greater capabilities of stirring up emotions and making powerful mental impact so much so  the treatment  of this  form of  art on a different footing with  pre-censorship may well be regarded as a valid classification, as  was held  in K.  A.  Abbas.  Maybe,  art cannot be imprisoned by the bureaucrat and aesthetics can be robbed of  the glory  and grace  and free  expression of the human spirit  if governmental  palate is  to  prescribe  the permit  for   exhibition  of   artistic  production  in  any department, more  so in  cinema pictures.  So it  is that  a special legislation viz. the Act of 1952, sets up a Board of Censors of  high calibre  and expertise,  provides hearings, appeals and  ultimate judicial  review,  pre-censorship  and conditional  exhibitions   and  wealth   of  other  policing strategies. In  short, a  special machinery  and  processual justice and  a host  of wholesome  restrictions  to  protect State and  society are  woven into  the fabric  of the  Act. After 517 having elaborately enacted such a legislation can it be that a certificate  granted under  it by  expert authority can be stultified  by   a  simple   prosecution  of   a  shower  of prosecutions for an offence under s. 292 I.P.C., driving the producer to  satisfy a ’lay’ magistrate that the certificate of the  Board  of  Censors  notwithstanding,  the  film  was offensive ?  The Board  under s.  5B has to consider, before certification, all  the points  s.  292  I.P.C.  prescribes. Indeed, neither the Penal Code nor the Cinematograph Act can go beyonds  the restrictions  sanctioned by  Part III of the Constitution and once the special law polices the area it is pro tanto  out of  bounds for the general law. At least as a matter of interpretation, s. 79 I.P.C. resolves the apparent conflict between  s. 292  I.P.C. and  Part  II  of  the  Act relating to  certification of  films. If the Board blunders, the Act  provides remedies.  We are sure the public-spirited citizen may draw the attention of the agencies under the Act to protect public interest.      The general  issues of  art and  the role  of the State have already  been referred  to by  us in  an earlier appeal from the  Delhi High  Court relating to the same film. There s. 79 I.P.C. was not considered by us because the contention was not  urged before us. The present decision will bind the court that hears that case.      The position  that emerges  is this.  Jurisprudentially viewed, an  act may  be an  offence, definitionally speaking but; a  forbidden act  may not spell inevitable guilt if the law itself declares that in certain special circumstances it is not  to be regarded as an offence. The chapter on General Exceptions operates  in this  province. Section  79 makes an offence a non-offence. When ? Only when the offending act is actually justified  by law  or  is  bona  fide  believed  by

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mistake of  fact to  be so justified. If, as here, the Board of Censors,  acting within  their  jurisdiction  and  on  an application made  and pursued  in good  faith, sanctions the public exhibition,  the producer  and connected  agencies do enter the  statutory harbour and are protected because s. 79 exonerates them  at least  in view of their bona fide belief that the  certificate is justificatory. Thus the trial court when it  hears the case may be appropriately apprised of the certificate  under   the  Act  and,  in  the  light  of  our observations, it  fills the bill under s. 79 it is right for the  court  to  discharge  the  accused  as  the  charge  is groundless.  In   the  present   case,  the  prosecution  is unsustainable because s. 79 is exculpatory when read with s. 5A of  the Act  and the  certificate issued  thereunder.  We quash the prosecution.      Two   things   deserve   mention   before   we   close. Prosecutions like this one may well be symptomatic of public dissatisfaction with  the Board  of  Censors  not  screening vicious films. The ultimate censo- 518 rious power  over the  censors belongs  to the people and by indifference, laxity  or abetment,  pictures  which  pollute public morals  are liberally  certificated, the legislation, meant by  Parliament to protect people’s good morals, may be sabotaged by  statutory enemies  within. Corruption  at that level must  be stamped  out. And  the Board,  alive  to  its public duty,  shall not  play to  the gallery;  nor shall it restrain aesthetic  expression and  progressive art  through obsolete norms  and grandma  inhibitions when  the world  is wheeling forward  to glimpse  the beauty  of Creation in its myriad manifestations  and liberal horizons. A happy balance is to      "....consider, on  the one  hand, the number of readers      they believe would tend to be depraved and corrupted by      the book,  the strength  of the tendency to deprave and      corrupt, and the nature of the depravity or corruption;      on the  other hand,  they should assess the strength of      the literary, sociological and ethical merit which they      consider the book to possess. They should then weigh up      all these  factors and  decide whether  on balance  the      publication is  proved to be justified as being for the      public good."      Going  to   the  basics,   freedom  of   expression  is fundamental. The  censor is not the moral tailor setting his own fashions  but a  statutory gendarme policing films under Art. 19(2)  from the  angle  of  public  order,  decency  or morality. These  concepts are  themselves dynamic and cannot be whittled  down  to  stifle  expression  nor  licentiously enlarged to promote a riot of sensual display.      Anyway, the  appeal must  succeed and we extinguish the prosecution by the order. N.V.K.                                       Appeal allowed. 519