It is true that at the stage of issuance of process under
Section 204 of Cr.P.C., detailed enquiry regarding merit or demerit
of the cases is not required. It is also true that the proposed
accused cannot participate at this stage before the Magistrate. But
then there is a duty and responsibility of the Magistrate to find out
whether there is a legal evidence or materials to form an “opinion”
and existence of “sufficient ground” which are the key words used
in Section 204 of Cr. P. C. before making an order of issuance of
process. Summoning an accused is a serious matter with serious
consequences on the reputation and status of a person and
criminal law cannot be set in motion as a matter of course. It is
the duty of the Magistrate to examine whether the complaint is
based under any law or whether there is any settled legal position
qua the allegations in the complaint. In this case, the trial Judge
did not advert to provisions of the Cinematograph Act or decision
in the case of Raj Kapoor..vs..Laxman, AIR 1980 SC 605.In the light of the above pronouncement by the apex
Court and in the light of the fact that the trial Judge had hardly
applied its mind to the settled law and the provisions of the
Cinematograph Act interpreted by the Supreme Court before
issuing the order of process coupled with the fact that non
applicant no.2 also did not place the entire material before the
Court including the legal position as set out above and obtained
the order of issuance of process, I am satisfied that this Court
would be failing in its duty if the revisional power is not exercised
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION NO.140/2015
Mallika Sherawat alias Reema Lamba,
aged years, Occ. Film Actress,
r/o Bandra East, Mumbai.
V
State of Maharashtra,
CORAM: A. B. CHAUDHARI, J.
DATED : 29.10.2015
1. This application is ordered to be converted in Criminal
revision. Counsel for the applicant to carry out amendment
forthwith.
2. Following is the prayer in this revision application:
(i) To quash and proceeding vide Criminal
Complaint No.27/2009, as well as the order taking
cognizance dated 13.04.2009 and subsequent orders
issuing processes pending before the JMFC at
Pandharkawda (Kelapur) against the applicant/accused
under Section 292 of IPC.
3. When this application was called out for hearing on
27.10.2010, learned counsel for the applicant Mr.Chakotkar,
prayed for adjournment and counsel for non applicant no.2 was
absent. It was, therefore, adjourned for today in order to give
opportunity to both the sides. Today, again counsel for the
applicant seeks adjournment while counsel for non applicant no.2
is absent. The present revision application relates to the year 2010.
It is not possible to adjourn the proceedings in the manner sought
by counsel for the applicant, nor for the absence of the non
applicant no.2.On one hand, there is a cry about pendency of cases
and on the other hand, adjournments are sought. Be it as it may.
4. Heard learned A.P.P. for the State. Perused the record.
Non applicant no.2 filed a private Criminal Case
No.27/2009, probably pro bono publico, in the court of Judicial
Magistrate First Class, PandharkawdaKelapur on 08.04.2009 on
which the Court ordered 'to put up the case for verification'. It
appears that, thereafter, the learned trial Judge examined the
complainant and three witnesses namely; Rajendra Chavan, a
mechanic, Shankar Badhe, Vice President of Municipal Council
and Ankush Soyam, a carpenter. The Court then passed the order
issuing process on 28.04.2009 returnable on 08.06.2009. He
recorded some reasons in paragraph 2 of the impugned order.
The impugned order does not show how the trial Court was
satisfied in issuing the process against the applicant, though it
shows that he was satisfied on the basis of oral as well as
documentary evidence without mentioning which one. In my
opinion, this is no satisfaction.
5. It is true that at the stage of issuance of process under
Section 204 of Cr.P.C., detailed enquiry regarding merit or demerit
of the cases is not required. It is also true that the proposed
accused cannot participate at this stage before the Magistrate. But
then there is a duty and responsibility of the Magistrate to find out
whether there is a legal evidence or materials to form an “opinion”
and existence of “sufficient ground” which are the key words used
in Section 204 of Cr. P. C. before making an order of issuance of
process. Summoning an accused is a serious matter with serious
consequences on the reputation and status of a person and
criminal law cannot be set in motion as a matter of course. It is
the duty of the Magistrate to examine whether the complaint is
based under any law or whether there is any settled legal position
qua the allegations in the complaint. In this case, the trial Judge
did not advert to provisions of the Cinematograph Act or decision
in the case of Raj Kapoor..vs..Laxman, AIR 1980 SC 605.
6. Even otherwise, on perusal of the averments in
complaint carefully, it appears that what is alleged in the
complaint is that the present revision applicantMallika Sheravat
had performed in the movies by name; Shadi Se Pehle, Murder,
Maan Gaye Mugale Azam etc. It is further alleged that in those
movies and other movies, the present revision applicant was being
shown and she had shown herself in short clothes thereby creating
the obscene acts, which are bound to create a lascivious effect on
the minds of youths and viewers and as a result thereof crimes are
committed and the social health is also spoiled. In paragraph 2 of
the complaint, it is stated that while dancing on songs, again she
exhibits herself with short clothes and such photos are also
published in magazines, weeklies, monthlies, which are being
read by the youths and elders, as a result of which the social
health is spoiled. These are the only allegations in the complaint.
Rest of the paragraphs of the complaint show general allegations.
Now, insofar as para 3 is concerned, the allegations are again of
general nature and do not specify about what is being averred in
the complaint.
Thus, it is only paragraph 2, which is specific about the
allegations. But then perusal of the instant revision application
particularly paragraph 21 shows that all those films had passed the
test of Censor Board and accordingly certificates were issued by
the Censor Board. In case, any person is aggrieved by such
certificate, remedy lies under Section 5D of the Cinematograph
Act. But then certification by the Censor board, could not have
been ignored and in the instant case, even by Magistrate. The
Magistrate did not bother to apply his mind to the Cinematograph
Act and various judgments of the Supreme Court and the Bombay
High Court on the point before making the order of issuance of
process. An order of issuance of process must precede the
application of mind to the law. At any rate, there is no answer
from the non applicants in answer to paragraphs 21 and 22 of the
revision. Reply of non applicant no.2 dated 04.10.2010, contains
nothing but preliminary objection of maintainability of this
application on the ground that the remedy by way of revision is
before the Sessions Court. The answer is simple, namely;
concurrent revisional power of the High Court. However, there is
no reply to the specific averments in this application about
certification of the above films by the Censor Board of which there
is mention in paragraph 21. It will have to be, therefore,
presumed that non applicant no.2 has no answer to the fact about
certification by the Censor Board and non filing of any appeal
against such certification if at all non applicant no.2 is aggrieved.
In my opinion, it was the duty of the Magistrate first to verify
whether those films had certification from the Censor Board or
not. But perhaps, he did not know the decision in the case of Raj
Kapoor (supra).
7. In that view of the matter, I am satisfied that the case
at hand is squarely covered by decision of the Supreme Court in
Raj Kapoor (supra). Following are the relevant paragraphs of the
said judgment which read thus:
“7. Indeed, the Penal Code is general, the
Cinematograph Act is special. The scheme of the latter is
deliberately drawn up to meet the explosively expanding
cinema menace if it were not strictly policed. No doubt,
the cinema is a great instrument for public good if
geared to social ends and can be a public curse if
directed to antisocial 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 precensorship may well be
regarded as a valid classification, as was held in K.A.
Abbas. K.A. Abbas v. The Union of India and Anr. .
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, precensorship 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 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 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 Section 5B has to
consider, before certification, all the points Section 292
I.P.C. prescribes. Indeed, 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 of pro tanto out of bounds
for the general law. At least as a matter of
interpretation, 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. We are sure the publicspirited
citizen may draw the attention of the agencies
under the Act to protect public interest.
8. …..
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 nonoffence.
When? Only when the offending act is actually
justified by law or is bona fide believed by mistake of
fact to be so justified. If, as here, the Board of Censors,
acting within their jurisdiction and on an application
made and pursued in good faith, sanctions the public
exhibition, the producer and connected agencies do enter
the statutory harbour and are protected because S. 79
exonerates them at least in view of their bona fide belief
that the certificate is justificatory. Thus the trial court
when it hears the case may be appropriately apprised of
the certificate under the Act and, in the light of our
observations, it fills the bill under S. 79 it is right for the
court to discharge the accused as the charge is
groundless. In the present case, the prosecution is
unsustainable because S. 79 is exculpatory when read
with S.5A of the Act and the certificate issued
thereunder. We quash the prosecution.
10. 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 censorious 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."[Calder and Boyars Ltd.1969I QB
151 at p.172].
8. In the light of the above pronouncement by the apex
Court and in the light of the fact that the trial Judge had hardly
applied its mind to the settled law and the provisions of the
Cinematograph Act interpreted by the Supreme Court before
issuing the order of process coupled with the fact that non
applicant no.2 also did not place the entire material before the
Court including the legal position as set out above and obtained
the order of issuance of process, I am satisfied that this Court
would be failing in its duty if the revisional power is not exercised
since the revision is maintainable against the order of issuance of
process in view of judgment in Urmila Devi..vs..Yudhvir Singh
(2013) 15 SCC 624, para 21 to 23, which read thus:
“21. Having regard to the said categorical
position stated by this Court in innumerable decisions
resting with the decision in Rajendra Kumar Sitaram
Pande v. Uttam, as well as the decision in K. K. Patel, it
will be in order to state and declare the legal position as
under:
21.1. The order issued by the Magistrate deciding
to summon an accused in exercise of his power under
Sections 200 to 204 CrPC would be an order of
intermediatory or quasifinal in nature and not
interlocutory in nature.
21.2. Since the said position viz such an order is
intermediatory order or quasifinal order, the
revisionary jurisdiction provided under Section 397,
either with the District Court or with th High Court can
be worked out by the aggrieved party.
21.3. Such an order of a Magistrate deciding the
issue process or summons to an accused in exercise of his
power under Sections 200 to 204 CrPC, can always be
subjectmatter of challenged under the inherent
jurisdiction of the High Court under Section 482 CrPC.
22. When we declare the above legal position
without any ambiguity, we also wish to draw support to
our above conclusion by referring to some of the
subsequent decision. In a recent decision of this Court in
Om Kumar Dhankar v. State of Haryana, the decisions
in Madhu Limaye, V.C. Shukla, K.M. Mathew, Rakesh
Kumar Mishra v. State of Bihar ending with Rajendra
Kumar Sitaram Pande, was considered and by making
specific reference to para 6 of the judgment in Rajendra
Kumar Sitaram Pande, this Court has held as under in
para 10: (Om Kumar Dhankar case, SCC p.255)
“10. In view of the above legal position,
we hold, as it must be, that revisional
jurisdiction under Section 397 CrPC was
available to Respondent 2 in challenging the
order of the Magistrate directing issuance of
summons. The first question is answered against
the appellant accordingly.”
23. Therefore, the position has now come to rest
to the effect that the revisional jurisdiction under Section
397 CrPC is available to the aggrieved party in
challenging the order of the Magistrate, directing
issuance of summons.”
9. In view of above, following order is passed.
ORDER
(i) Criminal Revision No.140/2015 is allowed.
(ii) Rule made absolute in terms of prayer clause (i).
JUDGE
Print Page
Section 204 of Cr.P.C., detailed enquiry regarding merit or demerit
of the cases is not required. It is also true that the proposed
accused cannot participate at this stage before the Magistrate. But
then there is a duty and responsibility of the Magistrate to find out
whether there is a legal evidence or materials to form an “opinion”
and existence of “sufficient ground” which are the key words used
in Section 204 of Cr. P. C. before making an order of issuance of
process. Summoning an accused is a serious matter with serious
consequences on the reputation and status of a person and
criminal law cannot be set in motion as a matter of course. It is
the duty of the Magistrate to examine whether the complaint is
based under any law or whether there is any settled legal position
qua the allegations in the complaint. In this case, the trial Judge
did not advert to provisions of the Cinematograph Act or decision
in the case of Raj Kapoor..vs..Laxman, AIR 1980 SC 605.In the light of the above pronouncement by the apex
Court and in the light of the fact that the trial Judge had hardly
applied its mind to the settled law and the provisions of the
Cinematograph Act interpreted by the Supreme Court before
issuing the order of process coupled with the fact that non
applicant no.2 also did not place the entire material before the
Court including the legal position as set out above and obtained
the order of issuance of process, I am satisfied that this Court
would be failing in its duty if the revisional power is not exercised
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION NO.140/2015
Mallika Sherawat alias Reema Lamba,
aged years, Occ. Film Actress,
r/o Bandra East, Mumbai.
V
State of Maharashtra,
CORAM: A. B. CHAUDHARI, J.
DATED : 29.10.2015
revision. Counsel for the applicant to carry out amendment
forthwith.
2. Following is the prayer in this revision application:
(i) To quash and proceeding vide Criminal
Complaint No.27/2009, as well as the order taking
cognizance dated 13.04.2009 and subsequent orders
issuing processes pending before the JMFC at
Pandharkawda (Kelapur) against the applicant/accused
under Section 292 of IPC.
3. When this application was called out for hearing on
27.10.2010, learned counsel for the applicant Mr.Chakotkar,
prayed for adjournment and counsel for non applicant no.2 was
absent. It was, therefore, adjourned for today in order to give
opportunity to both the sides. Today, again counsel for the
applicant seeks adjournment while counsel for non applicant no.2
is absent. The present revision application relates to the year 2010.
It is not possible to adjourn the proceedings in the manner sought
by counsel for the applicant, nor for the absence of the non
applicant no.2.On one hand, there is a cry about pendency of cases
and on the other hand, adjournments are sought. Be it as it may.
4. Heard learned A.P.P. for the State. Perused the record.
Non applicant no.2 filed a private Criminal Case
No.27/2009, probably pro bono publico, in the court of Judicial
Magistrate First Class, PandharkawdaKelapur on 08.04.2009 on
which the Court ordered 'to put up the case for verification'. It
appears that, thereafter, the learned trial Judge examined the
complainant and three witnesses namely; Rajendra Chavan, a
mechanic, Shankar Badhe, Vice President of Municipal Council
and Ankush Soyam, a carpenter. The Court then passed the order
issuing process on 28.04.2009 returnable on 08.06.2009. He
recorded some reasons in paragraph 2 of the impugned order.
The impugned order does not show how the trial Court was
satisfied in issuing the process against the applicant, though it
shows that he was satisfied on the basis of oral as well as
documentary evidence without mentioning which one. In my
opinion, this is no satisfaction.
5. It is true that at the stage of issuance of process under
Section 204 of Cr.P.C., detailed enquiry regarding merit or demerit
of the cases is not required. It is also true that the proposed
accused cannot participate at this stage before the Magistrate. But
then there is a duty and responsibility of the Magistrate to find out
whether there is a legal evidence or materials to form an “opinion”
and existence of “sufficient ground” which are the key words used
in Section 204 of Cr. P. C. before making an order of issuance of
process. Summoning an accused is a serious matter with serious
consequences on the reputation and status of a person and
criminal law cannot be set in motion as a matter of course. It is
the duty of the Magistrate to examine whether the complaint is
based under any law or whether there is any settled legal position
qua the allegations in the complaint. In this case, the trial Judge
did not advert to provisions of the Cinematograph Act or decision
in the case of Raj Kapoor..vs..Laxman, AIR 1980 SC 605.
6. Even otherwise, on perusal of the averments in
complaint carefully, it appears that what is alleged in the
complaint is that the present revision applicantMallika Sheravat
had performed in the movies by name; Shadi Se Pehle, Murder,
Maan Gaye Mugale Azam etc. It is further alleged that in those
movies and other movies, the present revision applicant was being
shown and she had shown herself in short clothes thereby creating
the obscene acts, which are bound to create a lascivious effect on
the minds of youths and viewers and as a result thereof crimes are
committed and the social health is also spoiled. In paragraph 2 of
the complaint, it is stated that while dancing on songs, again she
exhibits herself with short clothes and such photos are also
published in magazines, weeklies, monthlies, which are being
read by the youths and elders, as a result of which the social
health is spoiled. These are the only allegations in the complaint.
Rest of the paragraphs of the complaint show general allegations.
Now, insofar as para 3 is concerned, the allegations are again of
general nature and do not specify about what is being averred in
the complaint.
Thus, it is only paragraph 2, which is specific about the
allegations. But then perusal of the instant revision application
particularly paragraph 21 shows that all those films had passed the
test of Censor Board and accordingly certificates were issued by
the Censor Board. In case, any person is aggrieved by such
certificate, remedy lies under Section 5D of the Cinematograph
Act. But then certification by the Censor board, could not have
been ignored and in the instant case, even by Magistrate. The
Magistrate did not bother to apply his mind to the Cinematograph
Act and various judgments of the Supreme Court and the Bombay
High Court on the point before making the order of issuance of
process. An order of issuance of process must precede the
application of mind to the law. At any rate, there is no answer
from the non applicants in answer to paragraphs 21 and 22 of the
revision. Reply of non applicant no.2 dated 04.10.2010, contains
nothing but preliminary objection of maintainability of this
application on the ground that the remedy by way of revision is
before the Sessions Court. The answer is simple, namely;
concurrent revisional power of the High Court. However, there is
no reply to the specific averments in this application about
certification of the above films by the Censor Board of which there
is mention in paragraph 21. It will have to be, therefore,
presumed that non applicant no.2 has no answer to the fact about
certification by the Censor Board and non filing of any appeal
against such certification if at all non applicant no.2 is aggrieved.
In my opinion, it was the duty of the Magistrate first to verify
whether those films had certification from the Censor Board or
not. But perhaps, he did not know the decision in the case of Raj
Kapoor (supra).
7. In that view of the matter, I am satisfied that the case
at hand is squarely covered by decision of the Supreme Court in
Raj Kapoor (supra). Following are the relevant paragraphs of the
said judgment which read thus:
“7. Indeed, the Penal Code is general, the
Cinematograph Act is special. The scheme of the latter is
deliberately drawn up to meet the explosively expanding
cinema menace if it were not strictly policed. No doubt,
the cinema is a great instrument for public good if
geared to social ends and can be a public curse if
directed to antisocial 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 precensorship may well be
regarded as a valid classification, as was held in K.A.
Abbas. K.A. Abbas v. The Union of India and Anr. .
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, precensorship 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 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 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 Section 5B has to
consider, before certification, all the points Section 292
I.P.C. prescribes. Indeed, 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 of pro tanto out of bounds
for the general law. At least as a matter of
interpretation, 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. We are sure the publicspirited
citizen may draw the attention of the agencies
under the Act to protect public interest.
8. …..
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 nonoffence.
When? Only when the offending act is actually
justified by law or is bona fide believed by mistake of
fact to be so justified. If, as here, the Board of Censors,
acting within their jurisdiction and on an application
made and pursued in good faith, sanctions the public
exhibition, the producer and connected agencies do enter
the statutory harbour and are protected because S. 79
exonerates them at least in view of their bona fide belief
that the certificate is justificatory. Thus the trial court
when it hears the case may be appropriately apprised of
the certificate under the Act and, in the light of our
observations, it fills the bill under S. 79 it is right for the
court to discharge the accused as the charge is
groundless. In the present case, the prosecution is
unsustainable because S. 79 is exculpatory when read
with S.5A of the Act and the certificate issued
thereunder. We quash the prosecution.
10. 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 censorious 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."[Calder and Boyars Ltd.1969I QB
151 at p.172].
8. In the light of the above pronouncement by the apex
Court and in the light of the fact that the trial Judge had hardly
applied its mind to the settled law and the provisions of the
Cinematograph Act interpreted by the Supreme Court before
issuing the order of process coupled with the fact that non
applicant no.2 also did not place the entire material before the
Court including the legal position as set out above and obtained
the order of issuance of process, I am satisfied that this Court
would be failing in its duty if the revisional power is not exercised
since the revision is maintainable against the order of issuance of
process in view of judgment in Urmila Devi..vs..Yudhvir Singh
(2013) 15 SCC 624, para 21 to 23, which read thus:
“21. Having regard to the said categorical
position stated by this Court in innumerable decisions
resting with the decision in Rajendra Kumar Sitaram
Pande v. Uttam, as well as the decision in K. K. Patel, it
will be in order to state and declare the legal position as
under:
21.1. The order issued by the Magistrate deciding
to summon an accused in exercise of his power under
Sections 200 to 204 CrPC would be an order of
intermediatory or quasifinal in nature and not
interlocutory in nature.
21.2. Since the said position viz such an order is
intermediatory order or quasifinal order, the
revisionary jurisdiction provided under Section 397,
either with the District Court or with th High Court can
be worked out by the aggrieved party.
21.3. Such an order of a Magistrate deciding the
issue process or summons to an accused in exercise of his
power under Sections 200 to 204 CrPC, can always be
subjectmatter of challenged under the inherent
jurisdiction of the High Court under Section 482 CrPC.
22. When we declare the above legal position
without any ambiguity, we also wish to draw support to
our above conclusion by referring to some of the
subsequent decision. In a recent decision of this Court in
Om Kumar Dhankar v. State of Haryana, the decisions
in Madhu Limaye, V.C. Shukla, K.M. Mathew, Rakesh
Kumar Mishra v. State of Bihar ending with Rajendra
Kumar Sitaram Pande, was considered and by making
specific reference to para 6 of the judgment in Rajendra
Kumar Sitaram Pande, this Court has held as under in
para 10: (Om Kumar Dhankar case, SCC p.255)
“10. In view of the above legal position,
we hold, as it must be, that revisional
jurisdiction under Section 397 CrPC was
available to Respondent 2 in challenging the
order of the Magistrate directing issuance of
summons. The first question is answered against
the appellant accordingly.”
23. Therefore, the position has now come to rest
to the effect that the revisional jurisdiction under Section
397 CrPC is available to the aggrieved party in
challenging the order of the Magistrate, directing
issuance of summons.”
9. In view of above, following order is passed.
ORDER
(i) Criminal Revision No.140/2015 is allowed.
(ii) Rule made absolute in terms of prayer clause (i).
JUDGE
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