RAJ KAPOOR AND ORS. v. STATE AND OTHERS (2)

Citation: [1980] 1 S.C.R. 1081

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, R.S. PATHAK

Case summary

lfanted, the homage to the law of morals is paid and the further challenge under the Penal Code is barred. Board of 'Censors does not provide an irrebuttable defence to accused who have been granted such a certificate, but it is certainly a relevant fact of some weight to be...

Judgment text

I RAJ KAPOOR AND ORS. v. STATE AND OTHERS October 26, 1979 -. ,7· - [V. R. KRISHNA IYER & R. S. PATHAK, JJ. J Inherent powers vis-a-vis revisional powers of the High Court, nature of- Criminal Procedure Code, 1973 Sections 482 and 397. Cinen1atograph Act 1952 Section 5A-Whether the issuance of the certificate i,ssued by the specialised Board of Film Censors bars the criniinal Court's jurisdictio11 to try for offences under Sections 292/293 l. P. C. Pursuant to the complaint filed by the second respondent against the appellants Und'er sections '2927293 read with section 34 of the Penal Code 1'9r alleged punitive prurience moral depravity and shocking erosion of public dei::ency of the film Satya1n, Shivam, Sundaram, the Metropolitan Magistrate recorded the statement of three witnesses, including the con1plainant, in· a preliminary inquiry under sectiori 200 of lhe Code of Criminal Procedure and holding th.

at a prima facie c-ase existed for summoning the appellants, made an Order direct~ issue qf summons for th~ir Ette·ndance. The appellants applied against the ord~r to the. High Court of . Delhi under section 482 of the Code of Criminal Procedure, but the High CoU:rt, b'eing of opinion that a revision petition lay 3. gainst that order, decided to entertain it under section 397 of' the Code. As th~ certified copy of the order of the Metropolitan Magistrate wae not filed along with the petition, it v1as rejected by the ;High Court on August 3, 1979, · as n. ot COJJ?. petent. Allowing the appeal by special leav'e the Court, l! ELD : (Per Iyer J. ) Th~ opening words -0f Section 482 of the Code of Criminal Procedure contradict the contention wb.

ether the inh'erent powers of the High Court under Section 482 stands repelled when ihe revisional power under seclion 397 overlaps because nothing iri the Code, not even section 397 can affect the amplitude of tl:ie inherent power preserved in so many terms by the language of S~ction 482. S,tiH,...... a general principle pervades this branch of Jaw wh'en a specific 1 prov? (t'On is made; easy resort to inherent, power is not right except under ~pelling circun1stan. ces. Not that there is absence of jurisdiction but thitt ~inheren,t po"'er ::;bo. ~Jld, not inv~,de a. re:as, set apart for specific power under the ·same. ~ode. · [1085 G-H, 1086AJ · While it is true that Section 482 is pervasive, it should not subvert legal inte1dfts \Vritten into the. sitme code, such for instance, in seCtion 397(2). In short; there iS no total ban on the exercise of inherent power wh'ere abuse of the process Of the Court or· other extracirdinary· situation excites the Court's juris? ictio~.

The limitation is self-restraint, nothing more. (1086 A-B, G] The policy of law is clear that interlocutory order. i, pure and simple, should ~ not be taken upto the High Court resulting in unneceoiary litigation and delay. At the other extreme, final orders are clearly capable of being considered in _exercise of inherent powers, if glaring injustice stares the Court in the face. In between there is a tertium quid where it is more than a purely interlocutory orde1 and less than . a final disposal. The present case falls under that category where the accused complain of harassment . through the Court's process. -itt1:... ~ this third catel! Ory (tertium quid) the inherent power can be exercised. (10860-H. ~ • 1087A] . Merely because a copy of the . order has not been produced despite its 1 presence in the records of the Court, it cannot be said that . the entire revisory power stands frustrated and the inherent poWllr stultified.

[10870-EJ When the order in original is before the Court, to dismiss the petition for non production of a copy of it is to bring the judicial process into pejoration and if a copy were so- sacred that the original Were no substitute for it some time could have been granted for its production which was not done. In law, .. in life a short cut may prove a wrong cut. The content of the power so far as the present situation is ooncemed is the same, be it under section 397 or section 482 Of the Code. [1087E-GJ Madhu Limaye v. State of Maharashtra, A. I. R. 1978 SC 47 at SI; followed. The Film Censor Board acting: under section SA of the Cinematograph Act. 1952, is specially entrusted to screen off the •ilver ocreen pictures which offensively invade or deprave public morals through over-sex. A certificate by a high powered Board of Censors with specialioed composition and statutory mandate is not a piece of utter consequence.

It i8 relevant material important ln its impact, though not infallible in its verdict. But the Court is not' barred from, trying the case because the certificate is not cpnclusive. Neverthele88, the magistrate shall not brush aside what another tribunal has, for similar purpose found. [! 088E-F] A Board's certificate does not bar the criminal Court's jurisdiction to try for the offences under sections 292/293 Penal Code. Once a certifi~te unde> the Cinematograph Act is issued, the Penal Code pro tanto will not hang limp. May be, even a rebuttable presumption arises in favour of the statutory certificate but could be negatived by positive evidence. An act of recognition of moral worthiness by a statutory agency is not opinion evid. ence but an iDstance or transaction where the fact in issue ha3 been asserted, recognised or affirmed. The Court will examine the film and judge whether its public poliCy, in .

the given time and cliine, so breachC3 pnOlic morals Or ves basic ·decency' as to offend the· penal provisions. A view of the film ma tell more than volume of evidence will and maybe any court before making u·"--• its mind, may like to see the picture from the angle of Sections 292f293 I. P. C. There is no meaningful alternative for an intelligent eye. [1088G·H, 1089A~ E? ~090A-BJ Finality and infallibility are beydnd Courts which must interpret and administer the law with pragmatic realism, rather than romantic idealism or re- . cluse extremism. Yet, especially when a special statute (the Cinematograph Act) bas ;set Bpecial standards for films.

for public consumption and created a special Board to screen and censor from the angle of public morals and the like, with its verdicts being subject to higher review, inexpert criminal Courts must be cautious to "rush in" and indeed must "fear to tread", lest the judicial process should become a public footpath for any highway man wearing a moral mask holding up a film-maker who bas travelled the expensive and perilous journey to exhibition of his "certificated" picture. Omniscience is not the property of a judge. [1084E-F, 10890] (Per Patliak J. ) In a trial for the offences under sections 292/293 of the Indian Penal Code 11 certificate granted under s. 6 of the Cinematogmph Act by the . Board of 'Censors does not provide an irrebuttable defence to accused who have been granted such a certificate, but it is certainly a relevant fact of some weight to be taken into consideration by the criminal Court in deciding whether the offence charged is established.

Regard must be had by the court to the fact that the certificate represents· the judgment of a body of persons particularly selected under the statute for the specitlc purpose of adjudging the suitability of films for public exhibition, and that judgment extends to a consideration of the principal ingredients which go to constitute the offences under ss. 292 and· 293 of the Indian Penal Code. At the same time, the Court must remind itself that the function of deciding whether the ingredients ere established is primarily and essentially. its own function, and it cannot abdicate that function in favour cf another, no matter how august and qualified be the statutory authority. , [1091 A-DJ CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 621 of 1979. Appeal by Special Leave from the Judgment and Order dated 23-8-1979 of the Delhi High Court in Cr!. Misc. No. 13/79. B. K. L. Iyengar, M. Iyengar and P. R. Ramasesh for the Appellants. R. N. Sachthey for Respondent No. 1.

Arun Kapil, Shiv Kumar and R. K. lain for Respondent No. 2. The following Orders. were delivered : KRISHNA IYER, J. In our· constitntional order, fragrant with social justice, broader considerations of final relief must govern the judicial process save where legislative interdict plainly forbids that course. The dismissal by the High Court, on a little pohit of procedure, has led to this otherwise avoidable petition for special leave, at a tlfue _;when torrents of litigation drown this Court with an unmanageable . flood of dockets, The negative order under challenge was made by th~ High Court refusing to exercise its inherent power under s. 482 of the Criminal Procedure Code (the Code, for short) because the subject fell under its revisiona~ power under s.

397 and this latter power was not unsheathed because a copy 'Of the short order of the trial conrt had not been filed as required, not by the Code, but by High Court rule, although the original 6rder, together with all the records, had been sent for and was 'before the. court ! A besetting sin of our legal system is the tyranny of technicality in the name of finical legality, hospitably entertained sometimes in the halls of justice. Absent orientation, justicing be relevance and probative value of the certificate issued by the Board of Censors certifying under s. 6 of the Cinematograph Act that the film "Satyam Shivam Sundaram" has been approved for public exhibition to an adult audience. We have been invited to express our RAJ KAPOOR v. STATE (Pathak, J.

) 1091 views on the point as, counsel urge, it will arise directly in\ the litigation Ii pending before the High Court and the Metropolitan Magistrate and our observations, they say, would foreclose any further dispute on an issue of law of some importance. There is nol difficulty in laying: down that in a trial for the offences under ss. 292 and 293 of the Indian Penal Code a certificate granted under s. 6 of the Cincmatograph Act 8 -t,y the Board ol Censors does not provide a. irrebuttable defence to accused who have been granted such a certificate, but it is certainly a relevant fact of some weight to be taken into consideration by the, criminal court in deciding whether the offence charged is established.

Regard must be had by the court to the fact that the certificate represents the judgment of a body of persons particularly selected under the statute for the specific purpose of adjudging the suitability of films for public exhibition, and that judgment extends to a consideration of the principal ingredients which go to constitute the offences under ss. 292 and 293 of the Indian Penal Code. At the same time, the court must remind itself that the function of deciding whether the ingredients are established is primarily and essentially its own function, and it cannot abdicate that function in favour of another, no matter how august and qualified. be the statutory authority. The order of the High Court rejecting the petition being erroneous it is set aside, and thei High Court is directed to dispose of the petitio-n on the merits within two weeks from today.

In case the petition is dismissed on the merits by the High Court, it will direct foe Court below to proceed with the trial expeditiously and to bring to an early close the case pending before it. ORDER OF THE COURT We direct the High Court to dispose of the petition on the merits as soon as may be, not later than one month from today. In case, the petition is dismissed on the merits, by the High Court, it will direct the Court below to proceed with the trial as soon a~ possible and to bring to an early close the case pending before it. S. R. Appeal allowed and remitted. ~:. ,