Friday, 13 November 2015

Whether order of magistrate issuing process is revisable before session court?

 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.”
Mallika Sherawat alias Reema Lamba,
aged years, Occ. Film Actress, 
r/o Bandra East, Mumbai. .....APPLICANT
...V E R S U S...
 State of Maharashtra, through
its P.S.O. Pandharkawda, Dist. Yavatmal.
2. Rajnikant s/o Daluramji Borele,
aged 32 years, Occ. Business, 
r/o Pandharkawda, Tq. Kelapur,
Dist. Yavatmal.  ...NON APPLICANTS

DATED :­ 29.10.2015

1. This application is ordered to be converted in Criminal
revision.   Counsel   for   the   applicant   to   carry   out   amendment
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   public spirited
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 non  offence.
When? Only when the offending act is actually
justified by law or is bona fide believed by mistake of
fact to be so justified. If, as here, the Board of Censors,
acting within their jurisdiction and on an application
made and pursued in good faith, sanctions the public
exhibition, the producer and connected agencies do enter
the statutory harbour and are protected because S. 79
exonerates them at least in view of their bona fide belief
that the certificate is justificatory. Thus the trial court
when it hears the case may be appropriately apprised of
the certificate under the Act and, in the light of our
observations, it fills the bill under S. 79 it is right for the
court   to   discharge   the   accused   as   the   charge   is
groundless.   In   the   present   case,   the   prosecution   is
unsustainable because S. 79 is exculpatory when read
with   S.5A   of   the   Act   and   the   certificate   issued
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
"....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
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   quasi­ final   in   nature   and   not
interlocutory in nature.
21.2. Since the said position viz such an order is
intermediatory   order   or   quasi­ final   order,   the
revisionary   jurisdiction   provided   under   Section   397,
either with the District Court or with  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.
(i) Criminal Revision No.140/2015 is allowed.
(ii) Rule made absolute in terms of prayer clause (i).

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