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Akhil Bhartiya Dhamma Sena & Another v/s Union of India, through its Secretary, Cultural and Entertainment Department & Others


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    Writ Petition No. 695 of 2014

    Decided On, 21 February 2014

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE B.P. DHARMADHIKARI & THE HONOURABLE MR. JUSTICE Z.A. HAQ

    For the Petitioners: J.M. Shamkuwar, M.A. Khobragade, Advocates. For the Respondents: R3, S.V. Manohar, Senior Advocate with M.P. Kariya, Advocate, R4, B.H. Dangre, officiating G.P.



Judgment Text

Z.A. Haq, J.

1. Heard Mr. J.M. Shamkuwar with Mr. M.A. Khobragade, Advocates for the petitioners, Mr. S.V. Manohar, Senior Advocate with Mr. M.P. Kariya, Advocate for respondent no.3 and Mrs. B.H. Dangre, officiating Government Pleader for respondent no.4.

2. Rule. Rule is made returnable forthwith.

3. This writ petition is filed praying for restraint orders against the respondent no.3 – producer of a movie from exhibiting a movie titled as 'KhairlanjiChya Mathyawar'. The challenge is raised by a social organization, which claims to be working at national level to spread the Bouddhism in the Indian Territory and claims to be fighting for social justice. The petitioner no.2 is a person who claims to be directly affected by the scenes shown in the movie as it is claimed that the movie is based on true story/events which happened in the life of the petitioner no.2 and according to the petitioner no.2 some scenes shown in the movie are not correct and will tarnish his and his daughter's social image.

4. The unfortunate and shocking incident which occurred at Khairlanji town in Bhandara district was the subject matter of reporting in the print media and the electronic media for several weeks. The petitioner no.2 Bhaiyyalal s/o Sudam Bhotmange was also the subject of news during that period. Because of the continuous coverage of the events/incidents which took place in Khairlanji, the subject matter was known through out the nation.

5. The case of the petitioners is that the petitioner no.2 was invited by th respondent no.3 for the premier show of the movie titled as 'KhairlanjiChya Mathyawar' on 29th January, 2014. Pursuant to the invitation, the petitioner no.2 and Shri Ravindra @ Ravi s/o Paikuji Shende, the president of the petitioner no. 1 organization, attended the premier show and after seeing the movie they found that some scenes of the movie were obnoxious and objectionable and the petitioner no.2 is shown as drunkard and timid person always bowing before the Sarpanch and Police Patil of the village Khairlanji. The petitioners have submitted that the movie shows that the daughter of petitioner no.2 was involved in love affair. According to the petitioners the above referred scenes of the movie tarnish the image of the petitioner no.2 and his daughter. The petitioners have asserted that the petitioner no.2 has never consumed liquor and the movie shows the petitioner no.2 as a drunkard, which may tarnish his image. The petitioners have stated that the fundamental rights of the petitioner no.2 enshrined under Article 21 of the Constitution of India entitle him to seek appropriate orders from this Court to preserve his personal dignity and to maintain his social status. The petitioners have stated that in the shocking incident which occurred on 29th September, 2006, four members of the family of the petitioner no.2 lost their lives and for which the antisocial persons were prosecuted and convicted by the Sessions Court, Bhandara and their conviction is maintained with modification by this Court and the matter is now pending in appeal before the Hon'ble Supreme Court.

6. The movie was to be released for exhibition on 7th February, 2014. The petitioners moved this Court by this writ petition on 6th February, 2014. Notices were issued to the respondents and ad-interim order was passed restraining the respondent no.3 from releasing the movie.

7. Pursuant to the notice issued by this Court the respondent no.3 has put in appearance and has filed the submissions. The respondent no.1 and 2 though served have not put in their appearances. The respondent no.4 – State of Maharashtra is represented by Mrs. B.H. Dangre, officiating Assistant Government Pleader.

8. The respondent no.3 has submitted that the petition is not maintainable at the behest of the petitioner no.1 organization as it has no locus to file the writ petition. It is submitted that the petitioner no.2 has an alternate remedy available to file the suit or suit for damages, if any. An objection is raised that the petition suffers from unexplained delay in filing the writ petition. The respondent no.3 has submitted that she is an iron-lady having received the Padmashriaward for the personal qualities in the sector of industry and trade. It is submitted that the respondent no.3 has produced the movie to give good message to the society with the hope that such incident should not happen in future. The respondent no.3 has submitted that she has not damaged the reputation of any person including the petitioner no.2.

It is submitted that the respondent no.2 – Board of Film Certification has given the certificate dated 31st December, 2013 to the movie permitting the exhibition of the movie. It is submitted that wide publicity is given regarding the exhibition of the movie from November, 2013 and the movie is distributed to the various distributors in the State of Maharashtra and theaters have been booked, wide publicity has been given in print media and electronic media and hoardings are also installed for which the respondent no.3 has incurred expenditure of about Rs.50 Lakhs. It is submitted that the premier show was arranged on 29th January, 2014 in which the Hon'ble Home Minister, Office of Chief Minister and other dignities were present and the petitioner no.2 along with his associates were also present. It is submitted that after seeing the movie, the petitioner no.2 has praised the respondent no.3 and advised her to exhibit the movie in the country and abroad in different languages. It is submitted that the petitioner no.2 had given a declaration to the respondent no.3 that he had never objected for the exhibition of the movie and the copy of the declaration is also annexed with the submissions. The respondent no.3 has submitted that the petitioner no.2 is not shown as a drunkard in the movie but on two occasions it is shown that he is consuming liquor and those scenes are necessary in the movie because it is shown in the movie that after the petitioner no.2 consumes liquor, his wife damages the liquor den/brose brew which are illegally run. It is the claim of respondent no.3 that the character of movie opposes the illegal den as it ruins lives of the people. The respondent no.3 has admitted that the movie is based on the events which are true and based upon trustworthy information and that she can prove the incidents which are in the movie as true. It is submitted that the objectionable scenes in the movie showing the petitioner no.2 consuming liquor can be taken care of by running a strip/caption that the petitioner no.2 does not consume liquor. It is submitted that the names of the characters shown in the movie are different. The respondent no.3 submits that the petition be dismissed with costs.

9. The petitioners have filed counter affidavit to the submissions filed by the respondent no.3. It is submitted that after exhibition of the premier show, the respondent no.3 had left the spot suddenly and the petitioner no.2 did not get opportunity to raise objection about the objectionable part of the movie. It is submitted that the petitioner was interviewed by the reporter of daily 'Lokmat' on 2nd February, 2014. It is submitted that the petitioner no.2 had sent representations to the various Authorities for deleting the objectionable scenes from the movie. Copy of the representation dated 3rd February, 2014 addressed to the Chairman of the respondent no.2 – Board of Film Certification is annexed along with this counter affidavit. It is submitted that the petitioner no.2 had not given 'no objection' for exhibiting the movie. The petitioners have denied that the petitioner no.2 had praised the respondent no.3 for showing the movie.

10. Heard Advocate Shri Shamkuwar for the petitioners, Senior Advocate Shri S.V. Manohar along with Advocate Shri M.P. Kariya for the respondent no.3 and Mrs. B.H. Dangre, learned officiating Government Pleader for the respondent no.4. None appeared for the respondent nos.1 and 2, though served.

11. Shri Shamkuwar, the learned Advocate for the petitioners, has argued reiterating the submissions made in the writ petition. The learned Advocate has submitted that the shocking incident, which occurred at Khairlanji village, had been published in the print media and the electronic media and the petitioner no.2 Bhaiyyalal s/o Sudam Bhotmange has maintained his upright character throughout his life and the scenes shown in the movie depict him as a drunkard, which will tarnish his social image in the society. The learned Advocate has submitted that the petitioner no.2 had been fighting for justice throughout his life and has never succumbed to any pressures and the scenes in the movie showing the petitioner no.2 always bowing before the Sarpanch and the Police Patil of the village adversely affect his social status and the image. The learned Advocate for the petitioners has submitted that the scenes in the movie depict that the daughter of the petitioner no.2, who lost her life in the shocking incident, had love affair, which is contrary to the truth. Shri Shamkuwar has submitted that the above referred scenes in the movie assassinate the character not only of the petitioner no.2 but also of the daughter of petitioner no.2, who is a victim of the unfortunate incident. The learned Advocate has submitted that if the movie is permitted to be exhibited with objectionable scenes, then it will be violation of the guarantee enshrined under Article 21 of the Constitution which entitles the petitioner no.2 to lead his life with dignity.

12. Shri Manohar, learned Senior Advocate, has submitted that the petitioner no.1 organization has no locus to maintain the writ petition as there is no averment in the writ petition that the writ petition has been filed in public cause. The learned Senior Advocate has submitted that the petitioner no.2 has given his consent for exhibiting the movie by signing the declaration and now he cannot turn around and seek the order of restraint for exhibiting the movie. The learned Senior Advocate has submitted that the scenes in the movie do not depict the character of petitioner no.2 as a drunkard but in two to three scenes the petitioner no.2 is shown to be consuming liquor and they are necessary part of the movie as after these scenes it is shown that the wife of the petitioner no.2 destroys the illegally run liquor den. It is submitted that if at all the petitioner no.2 has any grievance then he has to prove that the exhibition of the movie with alleged objectionable scenes tarnishes the social image of the petitioner no.2 and he can claim damages, if any, by filing the civil suit. It is submitted that wide publicity has been given since November, 2013 and theaters are booked and hoardings are put, for which the respondent no.3 has incurred expenses of about Rs.50 Lakhs and the petitioner no.2 cannot be permitted at this belated stage to seek the relief as sought in the writ petition. The learned Senior Advocate submits that the writ petition is liable to be dismissed for the unexplained delay and latches. The learned Senior Advocate has reiterated that the respondent no.3 is willing to run the strip/caption to the effect that the petitioner no.2 does not consume liquor, during exhibition of the movie. It is submitted that the names of the characters shown in the movie are different. It is submitted that nothing adverse is shown as far as the daughter of the petitioner no.2 is concerned and there is only one scene in which it is shown that she is talking to her colleague discussing about the evils of the caste system in the society. The learned Senior Advocate has submitted that the submission made on behalf of the petitioners that the daughter of the petitioner no.2 is shown to be having a love affair is not correct. The learned Senior Advocate has submitted that the respondent no.2 – Board of Film Certification which is the competent authority has issued the certificate for exhibiting the movie and it is her fundamental right guaranteed under Article 19 of the Constitution which entitles the respondent no.3 to exhibit the movie. In support of his submissions the learned Senior Advocate has relied on the judgments reported in following cases:

(i) 1992 (3) SCC 637 (Life Insurance Corporation of India V/s. Prof. Manubhai D. Shah with Civil Appeal no.2643/1992 {Union of India through its Secretary and others V/s. Cinemart Foundation})

(ii) 1988 (4) SCC 592 (Reliance Petrochemicals Ltd. V/s. Proprietors of Indian Express News Papers, Bombay Pvt. Ltd. and others),

(iii) 1991 (4) SCC 1 (State of Punjab and others V/s. Gurudev Singh with Civil Appeal No.4772/1989 {State of Punjab and others V/s. Ashok Kumar}),

(iv) 2012 (10) SCC 603 (Sahara India Real Estate Corporation Limited and others V/s. Securities and Exchange Board of India and another), and

(v) 2009 (3) Mh.L.J. 874 (KamalR. Khan V/s. State of Maharashtra and others).

The learned Senior Advocate has submitted that the pendency of the appeal before the Hon'ble Supreme Court against the conviction cannot be said to be a ground for seeking a restraint order. The learned Senior Advocate has argued that the exhibition of the movie may perhaps affect the trial or may influence the prosecution witnesses but it cannot be said that the Judges of the Appellate and Superior Courts may get influenced by anything published in the print media or shown in the electronic media or by the exhibition of the movie. In support of this submission, he has relied on the judgment reported in 1989(2) ALL England Reporter 1100 (Re Lonrho plc and others).

13. Smt. Dangre, the learned officiating Government Pleader has submitted that the respondent no.4 – State has no concern with the challenge as raised by the petitioners and it is a matter between the petitioners and the respondents 2 and 3.

14. With the assistance of the learned Advocates, we have seen the documents filed on record and have examined the provisions of the Cinematograph Act, 1952, the Cinematograph (Certification) Rules, 1983 and the guidelines for publication of a film for public exhibition.

15. In our view the issue which falls for consideration is as to whether the petitioner no.2 is entitled to make a grievance of being defamed or about the character assassination of himself and his daughter and whether the respondent no.2 – Board of Film Certification is under an obligation to consider the grievance made by the petitioner no.2 and to verify the veracity of the claims made by the petitioner no.2 and the respondent no.3.

16. Section 5B of the Cinematograph Act, 1952 lays down the principles for guidance for certifying the films. Section 5B-(2) lays down that subject to the provisions contained in subsection (1), the Central Government may issue such directions as it may think fit for setting out the principles which shall guide the Authority competent to grant certificates under this Act in sanctioning films for public exhibition.

In exercise of the powers conferred by sub-section(2) of the Cinematograph Act, the Government of India has issued the notification directing that while sanctioning the films for public exhibition, the Board of Film Certification shall be guided by the principles as incorporated in the notification. The relevant guideline is guideline No.2(xviii) which reads as follows:-

'2. In pursuance of the above objectives, the Board of Film Certification shall ensure that –

(i) ......

(iii).....

(xviii) visuals or words involving defamation of an individual or a body of individuals, or contempt of Court are not presented.

Explanation – Scenes that tend to create scorn, disgrace or disregard of rules or undermine the dignity of Court will come under the term 'contempt of court.'

It is clear that the above mentioned guideline casts an obligation on the respondent no.2 – Board of Film Certification to ensure that the visuals or words in the movie does not lead to defamation of an individual or of body of individuals. In the present case it is an undisputed fact that the movie is based on the incidents which occurred at Khairlanji on 29th September, 2006 and in which the petitioner no.2 and his family had been victim and four members of the family of the petitioner no.2 have lost their lives. It is admitted by the respondent no.3 that she is proclaiming that the movie is based on the true incidents which occurred at Khairlanji. Even the tile of the movie 'Khairlanji Chya Mathyawar' connects the movie with the incidents of village Khairlanji. The respondent no.2 – Board of Film Certification has given the certificate to the movie for its exhibition on 31st December, 2013. The respondent no.3 has placed on record the copy of a document which is a part of the certificate given by the respondent no.2 – Board of Film Certification and it contains the following clause:-

'Deleted old disclaimer. Replaced with new disclaimer. The film while inspired by true events has been dramatized for cinematic effect.'

Thus, the public viewing the film is given an idea that the film is inspired by the true events. In view of these facts, it is clear that the respondent no.2 – Board of Film Certification has consciously given the certificate to the film on 31st December, 2013 knowing that the movie is inspired by the true events. It is an admitted fact that before us the movie containing scenes showing the petitioner no.2 consuming alcohol is not screened. Whether the petitioner no.2 is shown as a drunkard or not or whether the scenes showing the petitioner no.2 consuming liquor are necessary for the movie cannot be gone into by us in the writ jurisdiction. However, the respondent no.2 – Board of Film Certification which is a statutory body constituted under Section 3 of the Cinematograph Act, 1952 while issuing the certificate of exhibition in favour of the movie, is under an obligation to act as per the Cinematograph (Certification) Rules, 1983 and the guidelines for certification of films for public exhibition laid down by the Government of India. The certificate of exhibition given by the respondent no.3 is dated 31st December, 2013. It is an admitted fact that the petitioner no.2 was not shown the movie before 29th January, 2014 i.e. before holding of the premier show. In view of the guideline no.2(xviii) of the above mentioned guidelines, respondent no.2 – Board of Film Certification is under an obligation to ensure that visuals or words involving defamation of an individual or of body of individuals or contempt of Court are not presented. It is undisputed that the respondent no.2 – Board of Film Certification has not given any notice to the petitioner no.2 and has not given him any opportunity to submit his objections, if any, regarding the correctness of the story and the scenes shown in the movie. The veracity and the truthness of the scenes depicted in the movie can be examined by the respondent no.2 – Board of Film Certification only by giving an opportunity to the concerned person in respect of whom the scenes proclaimed to be based on true events, are shown. The particulars of exigencies and modifications shown in part-II along with certificate of exhibition given by the respondent no.2 – Board of Film Certification shows that the disclaimer clause has been substituted. This fact further shows that the respondent no.2 – Board of Film Certification had been aware that some scenes in the movie are dramatized for cinematic effect. In our view, before giving the certificate of exhibition and before certifying that the film is inspired by the true events but they have been dramatized for cinematic effect, it was under an obligation to verify the veracity and truth in the matter and for doing this the respondent no.2 – Board of Film Certification was under an obligation to give notice to the petitioner no.2 and after showing him the movie to give an opportunity to submit objections, if any, he had in the matter.

17. It is undisputed that some persons have been prosecuted and convicted by the learned Sessions Judge, Bhandara and with modification by this Court and the appeal is pending before the Hon'ble Supreme Court. The guideline no.2(xviii) lays down that the respondent no.2 – Board of Film Certification has to ensure that visuals or words involving contempt of Court are not presented. We are not aware about the scenes shown in the movie regarding the character of the persons who are prosecuted and convicted. We are not aware as to what is shown in the movie regarding the prosecution and the conviction of these persons. However, one thing is clear from the record that the respondent no.2 – Board of Film Certification has not applied its mind and has not considered the matter in the right perspective and has overlooked the guideline no.2(xviii) and because of it the decision of the respondent no.2 – Board of Film Certification to issue the certificate of exhibition to the movie is vitiated.

18. The petitioners, along with their counter affidavit, have filed on record a copy of the representation made to the Chairman of the respondent no.2 – Board of Film Certification on 3rd February, 2014 pointing out their objections to the exhibition of the movie along with the objectionable scenes. The petitioners got the opportunity to make the representation to the respondent no.2 – Board of Film Certification only after 29th January, 2014 on which date the movie is shown to the petitioner no.2 and his associates. The respondent no.2 – Board of Film Certification has not responded to the notice issued by this Court and has not put in appearance. Therefore, we are not having any knowledge as to what steps are taken by the respondent no.2 – Board of Film Certification after receiving above mentioned objection.

19. Shri Manohar, the learned Senior Advocate, has relied on the judgment reported in case of Life Insurance Corporation of India V/s. Prof. Manubhai D. Shah, cited supra. This deals with the right of a citizen guaranteed by Article 19(1)(a) of the Constitution to publish, circulate, propagate and disseminate his ideas as also his answer to criticism levelled against him through the communication channels or advertisements. He has further relied on the judgment reported in the case of Reliance Petrochemicals Ltd. V/s. Proprietors of Indian Express News Papers, Bombay Pvt. Ltd. and others, cited supra, which again deals with the right guaranteed to a citizen under Article 19(1)(a) of the Constitution in respect of the publication concerning a judicial proceeding pending in the court. He has further relied on the judgment reported in the case of Sahara India Real Estate Corporation Limited and others V/s. Securities and Exchange Board of India and another, cited supra. This is again regarding the coverage of court proceedings and sub judice matters, by the media. The reliance placed by the learned Senior Advocate on the judgment reported in (1989) 2 All England Law Reports 1100, cited supra, is again in support of his submission that the exhibition of the movie cannot be suspended or postponed because of the pendency of the appeal before the Hon'ble Supreme Court. The Senior Advocate has relied on the judgment reported in case of Kamal R. Khan V/s. State of Maharashtra and others, cited supra. This was a case where the State Government had suspended the exhibition of the movie on the ground that its exhibition may create law and order problems. The challenge was to an order passed by the State Government under Section 6 of the Bombay Cinemas (Regulation) Act. The learned Senior Advocate has relied on the judgment reported in (1996) 4 SCC1 (Bobby Art International and others V/s. Om Pal Singh Hoon and others). This is a case in which the issue was raised as to whether the movie showed scenes against the decency or morality. The issue which falls for our consideration is totally different. The above mentioned judgments do not deal with the issue which falls for our consideration regarding the statutory obligation of the respondent no.2 – Board of Film Certification as laid down in guideline no.2(xviii) and about the right and the entitlement of the petitioner no.2 to raise objection for exhibition of the movie proclaiming to be based on true incidents and showing some scenes, which according to the petitioner no.2, are not true and which do not portray his true social image and which according to him tarnish the social image and character of himself and his daughter. Therefore, the judgments relied upon by Shri Manohar, learned Senior Advocate, do not assist the respondent no.3.

20. The respondent no.3 has relied on the document titled as 'declaration' which is filed as Annexure R3(II) along with submissions of respondent no.3.

On page 3 of the document, which is at page 31 of the paper book, the signature of the petitioner no.2 appears. Below the signature of petitioner no.2 it is shown that he has signed before four witnesses, however again the name of the petitioner no.2 appears at serial no.1 in the list of witnesses. The persons whose names are written at serial nos.2 and 3 have not put their signatures. Only the person at serial no.4 has signed. It is not known who are the persons at serial nos. 2 to 4. There is another signature beside the signature of the petitioner no.2 below an endorsement 'sarwanche sahkarya wa pathimba ahe.' Again the name of person who has signed but his signature is not there in the document. As stated earlier, the petitioner no.2 has disputed some aspects about this document. Though the respondent no.3 has heavily relied on this document but the respondent no.3 has not explained as to what prompted her to get such a declaration from petitioner no.2. Shri Manohar, the learned Senior Advocate, has not been able to point any statutory requirement which necessitates the execution of an undertaking by the petitioner no.2 in favour of the respondent no.3 '

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privately' and that too after the certificate for exhibition is granted by the respondent no.2 – Board of Film Certification for exhibition of the film. We are of the view that the disputed issues in respect of this document cannot be examined by us in the writ jurisdiction. In any case the objections of petitioner no.2 have to be considered by the respondent no.2 – Board of Film Certification, which is the competent Authority in the matter. It is settled by several judgments of the Hon'ble Supreme Court and this Court that the respondent no.2 – Board of Film Certification is a body of experts which discharges its statutory duties and obligations for the certification of the films for public exhibition considering the statutory requirements. Therefore, we are of the view that the above mentioned document titled as 'declaration' obtained by the respondent no.3 from the petitioner no.2 has also to be considered by the respondent no.2 – Board of Film Certification. The submission made on behalf of respondent no.3 relying on this document is misconceived. 21. We are not going into the issue about the maintainability of the writ petition at the behest of the petitioner no.1 as the grievance, as made by the petitioner no.2, requires consideration by this Court. The petition at the behest of the petitioner no.2, is maintainable. As far as the question of unexplained delay and latches raised on behalf of the respondent no.3 is concerned, the facts on record show that there is no delay or latches on the part of the petitioner no.2 in filing the writ petition. It is undisputed that the movie is shown to the petitioner no.2 on 29th January, 2014. The fact that the respondent no.3 has given wide publicity to the movie since November, 2013 and has booked the theaters and has spent huge amount for its advertisement, does not mean that the petitioner no.2 was having knowledge about the scenes in the movie which according to the petitioner no.2 are not true and are objectionable. The cause of action for the petitioner to make any grievance has arisen only after he is shown the movie on 29th January, 2014. In view of this, the objection as raised by the learned Senior Advocate on behalf of the respondent no.3 has to be rejected. 22. In view of the above, the petition is partly allowed. The certificate of exhibition given by the respondent no.2 – Board of Film Certification to the movie 'Khairlanji Chya Mathyawar' is unsustainable and is cancelled. The respondent no.2 – Board of Film Certification is directed to reexamine the issue of the grant of certificate of exhibition to the movie after giving notice to the petitioner no.2 and after considering the objections as raised by the petitioner no.2. Rule is made absolute in above terms. In the circumstances of the case, parties to bear their own costs.
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