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Mohemmed @ Bava v/s State of Kerala, Represented by The Secretary to Home, Secretariat, Thiruvananthapuram & Others

Company & Directors' Information:- AT HOME INDIA PRIVATE LIMITED [Active] CIN = U17211DL2001PTC112255

Company & Directors' Information:- V HOME PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109331

Company & Directors' Information:- G. P. HOME PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102MH2011PTC213056

    WP(C). No. 1703 of 2020 (K)

    Decided On, 07 August 2020

    At, High Court of Kerala


    For the Petitioner: P.N. Sukumaran, Akhil S. Vishnu, S. Sooraj, Advocates. For the Respondents: K.B. Udayakumar, Sr. Public Prosecutor, E.C. Bineesh, Public Prosecutor, R1-R3, Suman Chakravarthy, Senior Govt. Pleader, R4-R5, Johnson Gomez, C. Unnikrishnan (Kollam), A.V. Indira, R7, M.F. Mohammod Siyad, R9 & R10, Philip T. Varghese, Thomas T. Varghese, Achu Subha Abraham, V.T. Litha, Shruthi Sara Jacob, K.R. Monisha, Advocates.

Judgment Text

1. This is a writ petition filed by the petitioner mainly seeking for issue of a writ of mandamus or such other appropriate direction calling upon respondents 1 to 3 to initiate appropriate legal steps for banning respondents 4 to 6 from telecasting the TV serial “Koodathai: The Game of Death”, fictionalising the incidents in Crime Nos.332/2019, 333/2019, 334/2019, 335/2019 and 189/2011 of Kodencherry Police Station and Crime No.980/2019 of Thamarasserry Police Station which relate to the commission of murder of six persons in a place called 'Koodathai' in Kozhikode, till the completion of trial of the said criminal cases. Similar prayer for issue of writ of mandamus is sought for initiating legal steps against 7th respondent also who too has taken active steps for producing a movie identically based on the subject matter of same crimes. In addition, the petitioner seeks a writ of prohibition also to be issued by this Court against respondents 4 to 6 restraining them from telecasting the above TV serial till the culmination of the trial of the criminal cases.

2. Altogether six separate crimes relating to the death of six members of a family called “Pannamattam” in a place by name Koodathai, having taken place at different times, were registered against one Jolly, who is the same accused in all the crimes. She is also a member of the same family of the deceased persons.

3. The petitioner and his mother are close neighbours of Pannamattam family in Koodathai and are also key witnesses in the murder cases. The investigation in all the six crimes was completed and final reports were also submitted before the concerned courts. Two among them were already committed and the trial has not yet started in any of the cases till date.

4. In the meantime, respondents 4 to 6 have already started the telecast of the TV serial, “Koodathai: The Game of Death” since 13.01.2020, which according to the petitioner, represents a story identically based on the subject matter of the aforesaid six crimes. It is alleged that the story and characters in the serial closely resemble the real persons and incidents in spite of efforts taken to hush them up by making minor changes in the place of incident and names of the characters. It is also stated that mere disclaimer published in each of the episodes is only a camouflage as well as conscious attempt made for escaping from the legal liability. It is also contended that the public are sure to carry an impression that they are viewing the real incidents in the above crimes irrespective of the presentation being in the form of a creative fiction enacted by the composer exercising his freedom of expression.

5. The 7th respondent has also been taking active steps for making a popular movie based on identical theme. Being aggrieved by the alleged illegal action of respondents 4 to 7, the petitioner sent Ext.P10 e-mail complaint to the second respondent, the Director General of Police of the State, seeking initiation of steps for banning the telecast. Since he has not taken any effective action to stop the telecast or initiate necessary legal action against respondents 4 to 7, it is submitted that institution of this original petition has become necessitated.

6. The grounds, on which the reliefs in the writ petition are sought, are the following:

1.Respondents 1 to 3 who have legal obligation to protect the rights of the petitioner against the broadcast of the TV serial based on the subject matter of criminal cases pending trial, have failed in their legal duties.

2. Respondents 4 to 6 have no right to telecast the TV serial resembling the subject matter of the crimes until the trial of the criminal cases is concluded and judgment pronounced.

3. Petitioner and other prosecution witnesses are depicted in the story in such a manner as to affect their reputation and also right of privacy.

4. The telecast will influence the witnesses in the criminal cases in many ways and prejudice the interests of the prosecution and thereby affect the result of the criminal cases.

5. The telecast will offend the fair trial and tend to interfere with the administration of justice amounting to the contempt of court.

7. The third respondent, the District Police Chief filed a counter affidavit stating that no legal steps banning the TV serial could have been taken since he is not empowered by any statute or order of the State Government to take preventive measures against telecast of TV serials or production of movies based on the fictions forming subject matter of crimes. It is also stated that no data regarding the investigation of the crime had been disclosed by police to any press or media persons. It is admitted that the petitioner is a close neighbour of Pannamattam family and also a key witness in the criminal cases. It is also admitted that the TV serial “Koodathai:The Game of Death” was already telecast by respondents 4 to 7 since 13.01.2020 and the story is based on the true events and life incidents in spite of minor changes having been made in the names of characters and places also. It is submitted that a prudent person viewing the serial is sure to identify the story with real incidents and happenings reported in the crimes. It is also stated that after the broadcast of the serial, some of the witnesses expressed their apprehension as to their identity being exposed to the public. In short, the contention is that the fiction serialised by the channel of respondents 4 to 6 very much matches the real incidents in the crimes.

8. No counter affidavit was filed by respondents 7 and 9. Eighth respondent was already deleted from the party array.

9. The sum and substance of the contentions raised by the main contesting respondents, who are respondent Nos.4 to 6, is as follows:

10. The writ petition is not maintainable under law and it is nothing but an abuse of the process of the court as well as abuse of constitutional public law remedy. The writ petition was filed immediately the next day after forwarding of Ext.P10 e-mail complaint to third respondent without giving sufficient time for authorities to act upon the request. The petitioner has no locus standi to file the writ petition and further he suppressed the material facts also. He approached the court with unclean hands. None of his fundamental or legal rights has been infringed. Writ of mandamus cannot lie against respondents 1 to 3 inasmuch as respondents 1 to 3 have no legal or statutory obligation to take steps for banning the telecast nor has the petitioner any corresponding legal right also in the matter.

11. The TV serial “Koodathai:The Game of Death” is a creative fiction produced and published by respondents 4 to 6 in exercise of their constitutional right conferred by Article 19(1)(e) of the Constitution of India. The contents of the TV serial have no connection whatsoever with the subject matter of the crimes. The story has no relationship with the accused, the deceased persons or the witnesses in the criminal cases. Disclaimer statement put up in every episode is sufficient notice to the public that the serial is distinct from the real events that transpired in the crimes. The only resemblance which the serial makes with the subject matter of crimes, appears to be the place called 'Koodathai' which is quite casual and if necessary, the respondents would be ready to make necessary changes in the said place. The reputation of the petitioner or right to privacy will not be infringed by the telecast of the serial. The contents of the serial have no tendency to affect the fair trial of the criminal case and thereby interfere with the administration of justice amounting to contempt of court.

12. The petitioner caused the children of the accused, Smt.Jolly to file O.S. No.9/2020 before the Munsiff Court-II Thamarassery against respondent Nos.4 to 6 for injunction restraining them from telecasting the TV serial based on the subject matter of the crimes. Dr K.Arun Kumar, the Associate Executive Editor of fourth respondent met the petitioner and the lawyer of the plaintiffs in the suit on 13.01.2020 at the office of the lawyer exploring the possibility of an amicable settlement and in the meeting, the petitioner demanded through the lawyer of plaintiffs, a sum of Rs.5 crores from Dr Arun Kumar. The petitioner is thus concerned only with getting more money than with his purported infringement of reputation or right to privacy. His intention is not to espouse any public grievance through this writ petition but to fight for his personal gain. Following an interim order of stay passed by this Court in this proceeding, respondents 4 to 6 have been put to huge financial loss. There had also been occasions when petitioner and plaintiffs in O.S. No.9/2020 appeared for interview in NEWS 24 channel for about 30 hours on various days attempting to narrate the real incidents in the crimes under investigation. The TV serial, “Koodathai: The Game of Death” is purely a creative art and fiction which respondents 4 to 6 are entitled to telecast in exercise of right guaranteed by Article 19(1) (e) of the Constitution of India. Therefore under no circumstances, broadcast of the serial would either affect the reputation of the petitioner or offend the fair trial of the criminal cases pending before the courts.

13. The petitioner filed reply affidavit denying his alleged association with O.S. No.9/2020 and the allegation of having demanded money from Dr K. Arun Kumar at the office of the plaintiffs' lawyer. He, however, admits having had conversations with Dr Arun Kumar as to the telecast of the TV serial but the understanding was to have it telecast only after completion of the criminal cases. The CD produced by respondents 4 to 6 before court is stated to contain only an edited and twisted version. He also admitted having been interviewed by various journalists and media persons in connection with investigation of the crimes. But, according to him, he has not made disclosure of any matters which could affect the investigation of the cases. The moment the telecast was found out to be going contrary to the understanding made between parties, it was timely objected to by the petitioner.

14. On the side of the petitioner, he produced Exts.P1 to P11 series. Respondents 4 to 6 produced Exts. R1 to R4 series.

15. Heard the learned counsel for the petitioner, the learned Director General of Police and the learned counsel appearing for respondents 4 to 6 and the learned counsel for respondents 9 and 10 in detail.

16. It is an undisputed fact that a few of the episodes in the serial were already telecast by respondents 4 to 6 and viewed by the public until they were stayed by an interim order of this Court. The serial telecast through the channel appears to be a fiction and a creative art rather than a news presentation or a documentary. The right of a person to compose a creative art or a fiction is no doubt, part of his freedom of thought and expression guaranteed by Article 19(1) (e) of the Constitution of India. It, however, does not mean that such a right could be exercised to any extent irrespective of all situations and beyond any limitations. It goes without saying that no writer of a fiction could exercise his freedom of thought and expression in such a way as to offend another man's reputation or infringe the right to privacy of members of the public. If composition of an artistic creation either resembles or is based on the subject matter of a criminal case pending investigation or trial, it must be held to offend the fair trial of the criminal case until the trial is concluded and the judgment is pronounced. In other words, the publication or telecast of the subject matter of a criminal case pending investigation or trial, in any form whatsoever, is no doubt offensive to the fair trial and will have the effect of interfering with the administration of justice. It is by all means a fact that if the subject matter of a criminal case pending trial before a court of law is allowed to be freely fictionalised, published or telecast, there is clear risk of prejudging the cause and thereby prejudicing the truth before the same being ascertained by the Judge in a balanced and dispassionate manner after completion of the trial. It is no exaggeration if one chances to think that even Judges exploring the truth are likely to be prejudiced. The court has every duty to protect and preserve the fair trial by ensuring justice not only to the accused but also to the prosecution in equal terms. While the accused in a criminal trial has the right of being presumed to be innocent until conclusion of trial, witnesses have also a right to present true facts before the court without apprehension as to any risk or threat to their life and liberty. A witness, who has fear of threat or of being affected by any extraneous influences, cannot be expected to speak the truth before court and if he is in any manner incapacitated from discharging duties of a witness, it is then a clear instance of denial of fair trial. Any such attempt made to sabotage the trial will tend to interfere with the administration of justice which is nothing but a clear contempt of court also. Even though none of the decisions cited before me has directly dealt with the law bearing on the facts of this case, the gist of the law emerging from the case laws cited below appears to what I narrated above (vide Sahara India Real Estate Corp. Ltd. and others v. SEBI and Another [2012 KHC 4496], In re: P.C. Sen v. Unknown [1970 KHC 734], Raju Bose v. Pritish Nandy & ors. [1986 KHC 83], M.P.Lohia, v. State of West Bengal and Another [2005 KHC 432], Mushtaq Moosa Tarani v. Govt. of India & ors. [2005 SCC Online Bom 385], In Re: Harijai Singh And Another, In Re: Vijay Kumar [(1996)6 SCC 466], Saibal Kumar Gupta and Others v. B.K. Sen and Another [AIR 1961 SC 633], State of Maharashtra v. Rajendra Jawanmal Gandhi [(1997) 8 SCC 386], K.A. Abbas v. The Union of India and Another [(1970) 2 SCC 780] and Viacom 18 Media Private Limited & Ors. v. Union of India & Ors.[W.P.(C) No.36/2018]).

17. The telecast of TV serial “Koodathai:The Game of Death” may go to the extent of affecting petitioner's right to reputation and privacy and of offending the fair trial of the criminal cases resulting in interference with the administration of justice only in the event of the story composed being shown to be identical with the subject matter of the criminal cases pending trial. Whether the TV serial identifies it with the real incidents in Koodathai itself, is a disputed fact in the case. According to the petitioner, the theme and characters in the story clearly resemble the real persons in the life as well as incidents that occurred in Koodathai. Same is the contention of the third respondent also. On the other hand, according to respondents 4 to 6, the serial is absolutely a creative imagination of the writer and the fiction composed is no match for the incidents of murder or witnesses and accused in the criminal cases.

18. It is the well settled law that a writ court ought not to entertain proceedings and choose to grant reliefs claimed by parties unless the facts presented before it are either admitted or undisputed. A court of writ cannot identify it with a trial court and convert the proceeding before it into an enquiry for deciding disputed facts. For this sole reason itself, the present writ petition does not appear to be maintainable. However, maintainability of writ petition was not attacked on this ground as if the parties were looking for a decision on merits.

19. It is seen that this Court had by an order passed on 06.02.2020, already directed respondents 4 to 6 to produce the entire script of the serial so far as it was available and instructed the learned Public Prosecutor to submit a report whether the script is, in any way identical to the real subject matter of the criminal cases. A report was accordingly filed by the learned Public Prosecutor and it indicates that there are 40 similarities as between the Serial and the story. In reply to the above report, respondents 4 to 6 submitted a statement on 16.06.2020 contending that the similarities specified are not factually correct. But, however, they expressed their willingness to make some changes in the name of characters, places etc.

20. I perused the said statement [Ext.R4(f)] as well as the report of the learned Public Prosecutor. After hearing all the parties and perusing the reply statement, I am of the opinion that there are close and striking similarities in the fiction sufficient enough to impress the viewers of the serial that the episodes are the true depiction of real life incidents forming subject matter of the criminal cases under trial. The telecast of the serial therefore may affect the fair trial of the criminal cases and interfere with administration of justice. This being a conduct amounting to interference with the administration of justice is an act of contempt of court also.

21. Nonetheless, the fundamental question in the light of the facts on record and the contentions taken by respondents 4 to 6 is as to whether the petitioner could justifiably make any genuine complaint of infringement as to his right to reputation, right of privacy, denial of fair trial and interference with administration of justice.

22. One of the grievances ventilated by the petitioner is that depiction of him in the story is in such a strange and disparaging manner as to affect his reputation in estimation of the right thinking public. It is his another grievance that the visuals and dialogues in the story create a lot of confusion in the mind of the prosecution witnesses affecting the trial and this may well be taken unfair advantage of by the accused who are, after the investigation of the crime, inimical to him and other witnesses. It is also contended that his life is now under threat and is completely in danger. It is said that as a witness, he has every right of privacy against being exposed to public in any form.

23. A reading of the writ petition shows that what he espouses is his own private cause. The writ petition is not filed as a public interest litigation and he cannot therefore pursue the interest of any other person than his own. The contention of respondents 4 to 6, in this context, is that the petitioner has no locus standi at all to seek any of the reliefs in the writ petition and there is no sound reason for this Court to extend its discretionary relief in favour of the petitioner. It is relevant to note here that either accused Jolly or persons interested in her cause have not approached this Court demanding banning of the telecast of the serial by complaining infringement of fair trial or interference with administration of justice. Likewise, persons who are interested in the prosecution also have not similarly approached this Court for any of the reliefs aforesaid. On the other hand, petitioner has come forward with a private grievance that his right to reputation, right of privacy are affected by the telecast of serial, besides the fair trial and administration of justice being offended.

24. On the facts presented by the parties as well as having due regard to the materials placed on record, I find my way very difficult to approve that petitioner's cause being legitimate.

25. It is well nigh settled that persons approaching a writ court should only come with clean hands and ought not to suppress material facts. He must be a person who has a real and genuine grievance. Unless the petitioner could establish that the alleged grievance projected by him before this Court justifies invocation of this Court's discretionary power, none of the reliefs claimed in the writ petition could be granted to him. Dilating on these aspects, the learned counsel for respondents 4 to 6 relied on a few decisions reported in Prestige Lights Ltd. v. State Bank of India [MANU/SC/3355/2007], Veerappa Pillai v. Raman & Raman Ltd. and Ors. [MANU/SC/0057/1952], T.C. Basappa v. T. Nagappa and Another [1954 AIR 440], Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody [1964 AIR 345], S.P. Chengalvaraya Naidu v. Jagannath [1994 AIR 853] and Ashraf Abubakkar Ansari v. Commissioner [SCA/1570/2012 of Gujarat High Court at Ahmedabad].

26. There is a definite allegation against the petitioner that he caused the children of accused, Jolly to institute O.S. No.9/2020 before Munsiff Court, Thamarassery against respondents 4 to 6 for a decree of injunction against telecast of the TV serial “Koodathai:The Game of Death” and on 13.01.2020 when the date of telecast was due, he met Dr.Arunkumar, the Associate Executive Editor of respondents 4 to 6 at the office of the plaintiffs' lawyers in Thamarasseri. It is alleged that in response to Dr.Arunkumar's request for settling the civil case, the petitioner demanded a sum of Rs.5 Crores through plaintiffs' lawyer. Ext.R4(c) is the CD containing the alleged conversation of the petitioner. The petitioner while denying the contents in the CDs, however, admitted that he had conversations with Dr.Arunkumar as to telecast of TV Serial. He stoutly denied his alleged association with the civil suit and its settlement as well as demand for money. Revealing the true contents of the conversation, the petitioner himself produced Ext.P11 CD.

27. Ext.P11 conversations between the petitioner and Dr.Arunkumar disclose not only that the petitioner was promoting telecast of the Serial but, he was also playing a key role in shaping the Serial by furnishing all necessary inputs for the story. The discussions with Dr.Arunkumar make it clear that the telecast was proposed to be begun before the completion of the trial of the criminal cases taking advantage of similarities of the story with the real incidents in the criminal cases under trial. If this is the true factual position, I fail to understand as to how could the petitioner open his mouth to complain that his right as to reputation or privacy was invaded.

28. Besides this, he admitted in reply to the counter affidavit filed by the respondents 4 to 6 that he had already appeared in NEWS 24 channel in an interview with Dr.Arunkumar and explained to the viewers in public some of the true facts related to the crimes under investigation. Similar interview was undertaken by the plaintiffs in O.S. No.9/2020 also and they too made certain revelations of what had really transpired in the life of the accused and one of the deceased. The conversations exchanged were recorded in Ext.R4 CD series and produced in this case.

29. The entire conduct of the petitioner indicat

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es that he forfeited his purported right as to privacy and defamation after having already made known to the public by himself that he is a key witness who knew the true facts of the case under investigation. His apprehension as to threat to life cannot be approved as genuine. In so far as he himself has played an active role in sharing the idea of telecasting a fiction matching the incidents in the criminal cases under trial, the complaint that there is denial of fair trial cannot be approved as a bonafide projection of a genuine grievance. None of the grounds taken by him to contend that the telecast will affect fair trial and offend the interests of prosecution is sustainable. 30. Despite the depiction of the incidents in criminal cases by means of creative art or fiction being a reprehensible conduct amounting to denial of fair trial and consequential interference with administration of justice amounting to contempt of court also, since the effort taken for banning the telecast happened to be at the instance of the petitioner who has no real and genuine grievance, it does not appear to be fair for this Court to exercise discretionary power of issuing any of the writs in his favour. On the facts set out and materials brought on record, I am of clear opinion that petitioner has no genuine grievance at all nor any legal right to complain not only of denial of fair trial but of alleged infringement of right of privacy or reputation. Approach of this Court would have been probably different, had the appropriate reliefs been sought by persons really and genuinely affected by the conduct of respondents 4 to 6. No such persons apprehending denial of fair trial seem to have approached the Court so far with requisite reliefs in the matter. The petitioner's plea seeking issue of writ of mandamus or prohibition is therefore liable to be dismissed. 31. Writ of mandamus cannot lie against respondents 1 to 3 for another reason also. No writ of mandamus could lie against a public authority for performance of an act unless the authority is enjoined by law, whether it be a statute, government order or precedents, obligating it to perform the act in question. The petitioner could not substantiate that there is any existing statute or law empowering or obligating the government to ban the telecast of the Serial in the facts and circumstances of the case at hand. In the result, the writ petition fails and it is hereby dismissed. All pending interlocutory applications will stand closed.