N Criminal Appeal No 773 of 1979
Appeal by Special Leave from the Judgment and Order dated 13 8 1979 of the Madhya Pradesh High Court in Misc
Criminal Case No 27979
Mrs K Hingorani for the Appellant
The Judgment of the Court was delivered by KRISHNA IYER J
Sublime titles of cinematograph films may enchant or entice and only after entry into the theatre the intrinsic worth of the picture dawns on the viewer
The experience may transform because the picture is great or the audience may lose lucre and culture in the bargain
Mere titles may not therefore attest the noxious or noble content of the film
Sometimes the same film may produce contrary impacts and what one regards as lecherous another may consider elevating
Be that as it may a well published film Satyam Sivam Sundaram became 514 the subject matter of a prosecution presumably a pro bono publico proceeding by the respondent against the petitioner and others who are the producer actor photographer exhibitor and distributor of that film
The complaint alleged that the fascinating title was misleadingly foul and beguiled the guileless into degeneracy
If the gravamen of this accusation were true obscenity indecency and vice are writ large on the picture constituting an offence under section 292 IPC
The Magistrate after examining some witnesses took cognizance of the offence and issued notice to the accused
Thereupon the producer namely the present petitioner moved the High Court under section 482 Cr
PC on the score that the criminal proceeding was an abuse of the judicial process and engineered by ulterior considerations and that no prosecution could be legally sustained in the circumstances of the case the film having been duly certified for public show by the Board of Censors
The High Court however dismissed the petition ignoring the contention that the film had been given A  certificate by the Central Board of Film Censors and finding in the prosecution nothing frivolous or vexatious nor any material to quash the proceedings
The aggrieved film producer has arrived in this Court hopefully and pressed before us one principal objection founded on section 79 IPC to neutralise section 292 IPC We do not find this contention apparent in the High Court s judgment but since the facts are admitted and the question of law is of some moment we have chosen to hear the petitioner on the invalidatory plea that once a certificate sanctioning public exhibition of a film has been granted by the competent authority under the for short the Act there is a justification for its display thereafter and by virtue of the antidotal provisions in section 79 of the Penal Code the public exhibition circulation or distribution or the production of the film even if it be obscene lascivious or tending to deprave or corrupt public morals cannot be an offence section 292 IPC notwithstanding
The absolution is based upon the combined operation of section 5A of the Act and section 79 of the Penal Code
The issue is of some importance since the cinema is one of the major mass media with millions of viewers and many millions in investment
The respondent complainant despite notice having been served on him did not enter appearance
We requested the Additional Solicitor General Shri Banerjee to help the court unravel the legal tangle and he responded promptly and eruditely rendered industrious assistance
We record our appreciation of the services of Shri Banerjee
The sole point for decision is the legal effect of the combined operation of section 5A of the Act and section 79 IPC
But we will assume for purposes of argument that the facts stated in the complaint prima facie 515 attract the offence under section 292 IPC Supposing such film has been certified by the Central Board of Film Censors acting within their jurisdiction under the Act thereby sanctioning the public exhibition of the film does it furnish a justification in law in doing the act which in the absence of such certification may constitute an offence under section 292 IPC  Section 79 IPC runs thus 79
Nothing is an offence which is done by any person who is justified by law or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it
The argument is irresistible that if the performance of the act which constitutes the offence is justified by law ie by some other provision then section 79 exonerates the doer because the act ceases to be an offence
Likewise if the act were done by one who by reason of a mistake of fact in good faith believes himself to be justified by law in doing it then also the exception operates and the bona fide belief although mistaken eliminates the culpability
The resolution of the problem raised in this case thus becomes simplified
If the offender can irrefutably establish that he is actually justified by law in doing the act or alternatively that he entertained a mistake of fact and in good faith believed that he was justified by law in committing the act then the weapon of section 79 demolishes the prosecution
Does a certificate issued under section 5A1A of the Act amount to justification in law for public exhibition of the film be it obscene or not or at any rate does it generate a belief induced by a mistake of fact namely the issuance of the certificate and its effect that the certificate holder is justified by law in exhibiting the film  We are thrown back upon a study of the anatomy of the and the efficacy of a certificate under section 5A as a justification within the meaning of section 79 of IPC Justified according to Black s Legal Dictionary means Done on adequate reasons sufficiently supported by credible evidence when weighed by unprejudiced mind guided by common sense and by correct rules of law
The Shorter Oxford English Dictionary assigns this meaning for justification
The showing in court that one had sufficient reason for doing that which ie is called to answer the ground for such a plea
516 Lexically the sense is clear
An act is justified by law if it is warranted validated and made blameless by law
Is a legal sanction permitting a thing a legal justification for doing it  Maybe there is a fine semantic shade between mere legal sanction which is passive and clear legal justification which is active
For the work a day world of meanings between permissive  and justificative  thin partition do their bounds divide 
It is an antinomy to say that under section 5A1A of the Act the Board certifies a film as suitable for public exhibition and for section 292 IPC to punish such exhibition unless the ground covered by the two laws be different
Although it may be plausible to say that what is merely certified as suitable for show by a law may not go the length of holding that it is justified by law
Such niceties need not deter us once we grasp the sweep of the 
Indeed the Penal Code is general the 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 anti social 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 pre censorship may well be regarded as a valid classification as was held in K A Abbas
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 pre censorship 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 517 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 of a shower of prosecutions for an offence under section 292 IPC 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 IPC prescribes
Indeed neither the Penal Code nor the can go beyonds the restrictions sanctioned by of the Constitution and once the special law polices the area it is pro tanto out of bounds for the general law
At least as a matter of interpretation section 79 IPC resolves the apparent conflict between section 292 IPC 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
The general issues of art and the role of the State have already been referred to by us in an earlier appeal from the Delhi High Court relating to the same film
There section 79 IPC was not considered by us because the contention was not urged before us
The present decision will bind the court that hears that case
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 section 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 section 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 section 79 is exculpatory when read with section 5A of the Act and the certificate issued thereunder
We quash the prosecution
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 censo 518 rious 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
 Going to the basics freedom of expression is fundamental
The censor is not the moral tailor setting his own fashions but a statutory gendarme policing films under article 192 from the angle of public order decency or morality
These concepts are themselves dynamic and cannot be whittled down to stifle expression nor licentiously enlarged to promote a riot of sensual display
Anyway the appeal must succeed and we extinguish the prosecution by the order
NVK Appeal allowed


Summary:
Section 79 IPC provides that nothing is an offence which is done by any person who is justified by law in doing it or who by reason of a mistake of fact in good faith believes himself to be justified by law in doing it
The respondent complainant alleged that the film Satyam Shivam Sundaram was by its fascinating title misleadingly foul and beguiled the guideless into degeneracy and that obscenity indecency and vice were writ large on the picture constituting an offence under section 292 IPC
The Magistrate after examining some witnesses took cognizance of the offence and issued notice to the appellant producer of the film
Thereupon the appellant moved the High Court under section 482 Cr
PC on the score that the criminal proceeding was an abuse of the judicial process and that no prosecution could be legally sustained as the film had been duly certified for public show by the Central Board of Film Censors
The High Court however dismissed the petition
In the appeal to this Court it was contended on behalf of the appellant that once a certificate sanctioning public exhibition of a film had been granted by the competent authority under the  there was a justification for its display thereafter and by virtue of the antidotal provisions in section 79 IPC the public exhibition circulation or distribution of the film even if it be obscene lascivious or tending to deprave or corrupt public morals could not be an offence section 292 IPC notwithstanding
Allowing the appeal  HELD 1
The prosecution is unsustainable because section 79 IPC is exculpatory when read with section 5 A of the and the certificate issued thereunder and is therefore quashed
517 G 2
It is an antinomy to say that under section 5A1A of the Act the Board certifies a film as suitable for public exhibition and for section 292 IPC to punish such exhibition unless the ground covered by the two laws be different
516 B 3
The Penal Code is general the is special
The scheme of the latter is deliberately drawn up to meet the explosively expanding cinema menace if it were not strictly policed
The cinema is a great instrument for public good if geared to social ends and can be a public curse if directed to 513 anti social objectives
So the Act sets up a Board of Censors of high calibre and expertise provides hearings appeals and ultimate judicial review the precensorship and conditional exhibitions and other policing strategies to protect state and society
516D G H 4
Neither the Penal Code nor the can go beyond the restrictions sanctioned by of the Constitution and once the special law polices the area it is pro tanto out of bounds for the general law
Section 79 IPC resolves the apparent conflict between section 292 IPC and part II of the Act relating to certification of films
If the Board blunders the Act provides remedies
517 B C 5
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 only when the offending act is actually justified by law or is bona fide believed by mistake of fact to be so justified
517 E 6
Once the Board of Censors acting within their jurisdiction and on an application made and pursued in good faith sanctions the public exhibition of a film the producer and connected agencies enter the statutory harbour and are protected because section 79 exonerates them in view of the bona fide belief that the certificate is justificatory
517 F 7
Freedom of expression is fundamental
The Censor is not the moral tailor setting his own fashions but a statutory gendarme policing films under Article 192 from the angle of public order decency or morality concepts themselves dynamic and which cannot be whittled down to strifle expression nor licentiously enlarged to promote a riot of sexual display
518 E K A Abbas vs The Union of India  Anr   referred to