I have also considered the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950. Section 3 thereof prohibits improper use of certain emblems and names and Section 5 thereof provides punishment for the contravention thereof. The punishment prescribed is of fine which may extend to Rs.500/-. Section 2 of the said Act, makes it clear that "emblem" means any emblem, seal, flag, insignia, coat- of- arms or pictorial representation specified in the Schedule to the Act. The Schedule does not say that the seal of the Commissioner of Police would be an emblem for the purposes of the said Act. But apart from that, what the Act forbids is improper use of an actual emblem. The impression on the invitation does not appear to be of any real emblem, and therefore, it cannot be said that there was improper use of an emblem.
20 Upon reading the FIR and examining the statements recorded during investigation, it is clear that no cognizable offence has been disclosed therefrom. Investigation into the alleged offence therefore, cannot be justified. It would be in the interest of justice to quash the First Information Report and the investigation, that has been carried out on that basis.
Bombay High Court
Sanjay Gupta And Another vs State Of Maharashtra on 31 July, 2012
Bench: A.M. Thipsay
The applicant no.1 is by profession a Film Director and Producer. The applicant no.2 is a company incorporated under the Companies Act, 1956, doing the business of film production. They are named as the accused in C.R.No.47 of 2012 which is in respect of offences punishable under Sections 417, 419, 465, 468, 469, 471, 473, 474, 475 of the Indian Penal Code (IPC) read with 34 thereof, as also the offence punishable under Section 66(d) of the Information Technology Act, 2008. By this application under Section 482 of the Code of Criminal Procedure (Cr.P.C.), they are invoking the inherent powers of this court, praying that the First Information Report (FIR) and the investigation carried out on that basis, be quashed.
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2 The First Information Report (FIR) has been lodged by one Vishal Jadhav, Sub Inspector of Police attached to Versova Police Station, at the material time. The substance of the FIR is that while the first informant was on duty at Versova Police Station, he received information that "some one was using the name of the Commissioner of Police, BrihanMumbai, and the official seal, without the prior permission of the Commissioner of Police, BrihanMumbai," and was publishing the information through a website on internet. On internet surfing, he learnt that on a website called "glamsham.com" an advertisement in respect of the production of a movie "Shootout at Wadala" was being displayed. He also realized that the said advertisement was being displayed by the applicant no.2 and Balaji Motion Pictures, and that the Director of the said movie - Sanjay Gupta i.e. the applicant no.1, had given the said advertisement. That, in the said advertisement, he had appealed to the members of public, on behalf of the Commissioner of Police, BrihanMumbai, to remain present on 29.2.2012, at Mehboob Studio, Stage No.2. The advertisement mentioned that the Commissioner of Police was to give a lecture on the sudden and dangerous rise of the organized crimes and the plans of the police to tackle the same. That, at the end of the said news, the emblem, that is being used by the Police, is also shown.
3 On these facts, the FIR alleges that the applicants and the office bearers of Balaji Motion Pictures, by conspiring with one another,
"misused the position of the Commissioner of Police (ekuuh; iksyhl
vk;qDr] c`gueqacbZ] ;kaps laerh f'kok;] iksyhl vk;qDr ;k inkpk xSj okij dsyk) without the consent of the Commissioner of Police" (as if it could be
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misused with his consent ! ) It also alleges that a false official seal was got prepared and used and that the information was published on internet through a website. The FIR also alleges that the public was misled by claiming that the Commissioner of Police was to remain present for the said programme and thus the Commissioner of Police as well as the members of public were cheated by the applicants and the other accused.
4 I have heard Mr.A.H.H.Ponda, the learned counsel for the applicants. I have heard Mr.A.S.Shitole, the learned APP for the State. I have gone through the FIR and the statements recorded during investigation.
5 Mr.Ponda submitted that the applicant no.2 was in the process of co-producing a film titled as "Shoot out at Wadala." That, earlier the applicants had produced the film "Shoot out at Lokhandwala." That the film is based on the first registered encounter by Mumbai Police with one Manya Surve, alleged gangster, who was shot dead at Wadala in 1990s. That the film "Shoot out at Wadala" was thus being based on the first encounter killing in the history of Mumbai police. The applicant no.2, therefore, thought to launch the film in an innovative manner and it was for that purpose, an invitation to all the media persons in Mumbai, which was worded in an interesting manner, was sent. That, it was done with an intention to invoke interest and was not expected to be taken seriously. It was not expected that anybody would be misled by such an invitation, thinking that really the Commissioner of Police had sent such an invitation. Thus, the contention of Mr.A.H.H.Ponda is that the invitation is a gimmick and was not done with the intention to cheat or deceive anyone.
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6 I have therefore examined what was the invitation and how it reads. It would be appropriate to reproduce the same here :
THE POLICE COMMISSIONER'S OFFCE
BANDRA POLICE STATION, KRISHNA CHANDRA MARG
BANDRA (W), BOMBAY 400050
NOTICE
To,
Subject : Briefing on the current crime scenario in Bombay
This is to inform you that the Commissioner of Police requests your presence on the 29th of February at 3.15 p.m. on Stage No.2. Of Mehboob Studio to address the sudden and dangerous rise of organized crime in the city.
The Commissioner would like to issue a statement
regarding how the Police Force plans to respond. Experts from White Feather Films and Balaji Motion Pictures will present their statements on the Shootout at Wadala.
Your presence is a must.
Signed under my hand and seal on this 27th day of February 1981.
Parull Gossain
Commissioner's Office
Bandra Police Station,
Krishna Chandra Marg,
Bandra(W), Bombay 400 050
7 It can at once be noticed that the date put on the invitation th
is 27 day of February, 1981 On the reverse of this invitation card, .
there is an endorsement as follows :
This is purely for promotional & publicity
purposes only and does not bear any resemblance
to any legal or official Government document.
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It is on this aspect that much emphasis has been led by Mr.A.H.H.Ponda, who submitted that a mere look at the said invitation card indicates that it could not have been intended to deceive anyone and no person would have thought, that this could indeed be construed as an official invitation issued by the Commissioner of Police. There is substance in what Mr.A.H.H.Ponda says.
8 Mr.A.H.H.Ponda, on instructions, stated that such invitation cards were sent only to the people in the close circle of the film fraternity. The learned APP and / or the Investigating Officer are not in a position to dispute this.
9 The FIR contains a statement that by sending such invitation, the members of public and Police Commissioner were
deceived and cheated (tursph o ekuuh; iksyhl vk;qDr ;kaph Qlo.kwd dsyh). It is difficult to understand as to how the Police Commissioner could be deceived by such an invitation. Does the first informant suggest that he - i.e. the Commissioner himself thought that indeed it was an invitation given by him? If that is the suggestion, it is ridiculous; and if that is not the suggestion, then the claim that the Police Commissioner was deceived, is bogus.
10 The question is whether the FIR, which has been lodged by a member of the police force, on a fair and plain reading, discloses commission of the offences, as mentioned therein, or any cognizable offence, for that matter, so as to justify undertaking of an investigation.
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11 To constitute the offence of cheating or forgery, dishonest intention is a must. Section 24 of the IPC defines the term "dishonestly" as anything done with the intention of causing wrongful gain to one person and wrongful loss to another person. The terms "wrongful gain" and "wrongful loss" are defined in Section 23 as follows : "Wrongful gain" :- "Wrongful gain" is gain by
unlawful means of property to which the
person gaining is not legally entitled.
"Wrongful loss" :- "Wrongful loss" is the loss
by unlawful means of property to which the
person losing it is legally entitled.
It is not even remotely suggested in the FIR as to what wrongful gain was intended to be made by sending such an invitation, and who was or were to make any such gain, and to whom wrongful loss was intended to be caused, by sending such an invitation. Nothing in that regard, could be suggested even during the oral arguments either by the Investigating Officer or the learned APP Accepting the case put .
forth in the FIR and accepted by the investigating agency, at best, all that can be said is that some members of public might have attended the place i.e. Stage No.2 of Mehboob Studio with the expectation to hear the Commissioner of Police on the "current crime scenario" in Mumbai, and they would have been disappointed to see that actually the Commissioner of Police would not be issuing any such statement, as has been mentioned in the invitation card. It cannot be helped observing that no man of ordinary prudence would have thought that the Commissioner of Police was indeed going to do such a thing and ordinarily every person would have realized that it was only a method of promoting the film "Shoot out at Wadala." This is clear from the fact
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that no attempt to record statements of any persons showing that they were misled by such an invitation and that they went to the Stage No.2 of Mehboob Studio, in order to hear the Commissioner of Police, but were disappointed and were thus deceived has been made. As already th
observed, the invitation is supposed to have been signed on 27 day of February, 1981, and therefore, it would be obvious to anyone that this is not a real invitation or notice from the Commissioner of Police, even if the specific endorsement on the reverse of the invitation card, reproduced earlier is overlooked.
12 The FIR as also the panchnama dated 29.2.2012 show that on browsing the relevant site, it was clear that the whole thing was a promotional program for the film "Shoot out at Wadala." Therefore, it would be unreasonable to think that anybody would be misled into believing that a meeting of citizens had been called by the Commissioner of Police, at Stage No.2 of Mehboob Studio.
13 It is true that whether infact anybody was indeed likely to be deceived or misled, is not the test of the intention of the offender. Thus, the intention to deceive or to defraud could be very well present in the mind of an offender, though his attempt to do so, would be so crude, so as to not yield the desired result. However, the intention has to be gathered from the acts of the alleged offender; and in judging so, the quality of the alleged attempted deception or fraud, needs to be seen. In the present case therefore, the possibility that needs to be considered is, whether a person, who wanted to deceive the members of public by representing to them that the Commissioner of Police was
avk 7/11 APL-304-2012
going to address the citizens on the sudden and dangerous rise of organized crimes, at Mehboob Studio, Stage No.2, could have issued the type of invitation, that has been reproduced earlier. This does not seem to be likely, for a number of reasons. First of all, the address of the office of the Commissioner of Police, is given as Bandra Police Station. Secondly, as aforesaid, the date of the invitation is put as 27 th February, 1981. Further, as aforesaid, on the reverse of the invitation card, there is an endorsement making it clear that it was a promotional and publicity activity. A person, who would entertain an intention to deceive someone or to commit fraud, would not leave so many lacunae in the invitation card. A person drafting or preparing the invitation card in such a manner cannot be believed to be having an intention to deceive any one or to commit fraud.
14 It is not possible to say that the applicants had made any false document or false electronic record with intention to cause damage or injury to public or to any person or to support any claim or title or to cause any one to part with property or with intention to commit fraud or that fraud be committed. The invitation was written in a novel form apparently to attract the persons connected with film industry and it does not appear that there was any fraudulent or dishonest intention behind preparing such a document. It would be too trivial a matter, to take a note of the same and commence investigation, and that too, when the FIR is not lodged by a person, to whom such alleged harm had been caused. Apparently, it is for this inability to make out any such case that a rather absurd statement such as misuse of the position of Commissioner of Police without his consent, etc. has been made.
avk 8/11 APL-304-2012
15 Thus, the FIR and the statements recorded during investigation themselves indicate that there was no dishonest or fraudulent intention in preparing the document in question. Further, as discussed earlier, there was hardly any possibility of anybody being misled by any such invitation and certainly that was not the object at all behind preparing the document in question.
16 Thus, it can be said that the FIR does not disclose the commission of the alleged offences.
17 It has already been observed that it does not appear that any harm was indeed caused to any one, but, even if it is assumed that somebody had gone to hear the Commissioner of Police, on the basis of the invitation and was disappointed and was thus harmed, the matter has to be treated as so trivial, so as not to amount to any offence. In this context, Mr.A.H.H.Ponda relied on the provisions of Section 95 of the IPC which embody the principle "de minimis non curat lex" (the law takes no account of trifles). Section 95 reads as follows :
Section 95. Act causing slight harm
Nothing is an offence by reason that it
causes, or that it is intended to cause, or
that it is known to be likely to cause, any
harm, if that harm is so slight that no person
of ordinary sense and temper would complain
of such harm.
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18 At the cost of repetition, it may be observed that it is nobody's case that anybody was actually misled by such invitation. It is only the police who are taking a serious view of the matter and certainly they were not misled by such an invitation. There is no question of deceiving or cheating the Commissioner of Police or police, as they would obviously know that this is not an invitation sent by the Commissioner of Police.
19 I have also considered the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950. Section 3 thereof prohibits improper use of certain emblems and names and Section 5 thereof provides punishment for the contravention thereof. The punishment prescribed is of fine which may extend to Rs.500/-. Section 2 of the said Act, makes it clear that "emblem" means any emblem, seal, flag, insignia, coat- of- arms or pictorial representation specified in the Schedule to the Act. The Schedule does not say that the seal of the Commissioner of Police would be an emblem for the purposes of the said Act. But apart from that, what the Act forbids is improper use of an actual emblem. The impression on the invitation does not appear to be of any real emblem, and therefore, it cannot be said that there was improper use of an emblem.
20 Upon reading the FIR and examining the statements recorded during investigation, it is clear that no cognizable offence has been disclosed therefrom. Investigation into the alleged offence therefore, cannot be justified. It would be in the interest of justice to quash the First Information Report and the investigation, that has been carried out on that basis.
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21 The Application is allowed.
The FIR lodged in C.R.No.47 of 2012 registered by Versova Police Station as also the investigation carried out pursuant thereto, is quashed.
The Application is disposed of accordingly.
(A.M.THIPSAY, J.)
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