IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 269 OF 2005 Mushtaq Moosa Tarani .. Petitioner V/s Government of India & Ors. .. Respondents Mr.P.A. Sebastian i/b Mr.Shahid Azmi and Ms.Renuka Bhat for the Petitioner. Ms. S.I. Shah with Mr. Y.R. Mishra for Respondents No.1 and 2. Mr.Aspi Chinoy, Senior Advocate, with Mr. Mihir Desai for Respondents Nos.3 and 6. Dr.Rajiv Dhawan, Senior Advocate, with Mr. Nikhil Nayar and Mr.Prashant Vyankatesh i/b Mr.Mihir Desai for Respondents Nos.4 and 5. Mr.V.A. Thorat, Advocate General with Mr.R.M. Sawant, Government Pleader, for the Intervener - State of Maharashtra. CORAM : H.L. GOKHALE & S.C. DHARMADHIKARI, JJ. DATE OF RESERVING THE JUDGMENT : 28TH FEBRUARY 2005 DATE OF PRONOUNCING THE JUDGMENT : 31ST MARCH 2005 JUDGMENT JUDGMENT JUDGMENT: (Per Gokhale J.) 1. On Friday, 12th March 1993, a series of bomb explosions occurred in the city of Mumbai within two hours, i.e. between 1.30 p.m. and 3.30 p.m. The bomb blasts took place in different parts of city starting from Stock Exchange situated in South Mumbai to the Centaur Hotel, Juhu in North Mumbai. More than 250 - 2 - persons were killed or were missing as a result thereof and more than 700 got injured. A large number of properties were damaged. The bomb blasts were said to be engineered by one Ibrahim Memon also called as Tiger Memon, who is alleged to be a person with anti-social background. These bomb blasts were claimed to be by way of a retaliation to the demolition of the Babri Masjid- Ram Janmabhoomi structure at Ayodhya on 6th December 1992 and the riots which took place thereafter in Mumbai between 6th to 12th December 1992 and thereafter from 7th to 16th January 1993 wherein some 900 people died, nearly 2/3rd of whom were stated to be Muslims. Thousands of people were injured and the loss to various properties was incalculable. 2. The search into these bomb blasts led to the arrest and prosecution of a large number of persons. Some 189 persons are said to be prosecuted under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) in a case numbered as Bombay Blast Case No. 1 of 1993. Out of these 189 persons, 145 have been arrested and 44 are stated to be absconding. There are more than 3700 witnesses sought to be relied upon by the prosecution. The evidence has now been led, arguments are over and judgment is awaited. - 3 - 3. A journalist by name S. Hussain Zaidi spent good time on the information concerning these riots and the prosecution resulting therefrom. He interviewed many of the accused and their associates, police officers, prosecutors, defence lawyers and went through the charge-sheet and the records of the case, and in the year 2002 came out with a book named "BLACK FRIDAY". In this book, he is stated to have gone into the heart of the conspiracy and the massive investigation that ensued. The book is stated to be a product of some four years of meticulous research. The book is claimed to be the true story of the Bombay bomb blasts. 4. The Respondents Nos.3 to 6 to this petition (the film-makers) have now made a Hindi Film based on this book. This aspect is very clear from the disclaimer that is shown at the beginning of the film. The disclaimer reads as follows:- "The film you are about to see is based on the book "Black Friday" first published in 2002. The events depicted in this film are true to the book and are constructed from the case for the prosecution. In the adaptation to film certain creative license has been taken. Nothing in this narration should be construed to be an - 4 - opinion on the innocence or guilt of the persons depicted." This film is not a documentary film. A documentary contains the visuals of actual events and real persons, but no story. This film is claimed to be a docudrama. It claims to unfold a story which is based on real events. It is not fictional. The characters are portraits of real persons carrying their very names and attempting to resemble them completely. They are clearly identifiable. 5. The Petitioner is accused No.44 in this trial and he has been in custody all throughout. He is awaiting the judgment. He came to know about this film from the advertisement in newspapers that it is based on a book which claims to be a true story of the Bombay bomb blasts. He bought the book and went through it only to realise that it is produced with the assistance of lawyers and support of the judge in charge of the case. The Petitioner fears that the effect of the film based on such a book will be to vitiate a fair trial and decision, and will have a damaging effect on the impartiality of the administration of justice which is a minimum expectation of an accused. In his view, the film constitutes an interference in the administration - 5 - of justice, it scandalises the court and, therefore, it is in contempt of court. His second submission is that this film defames him by showing him as a criminal, it affects his reputation and may even endanger security of his life. He along with 31 undertrial prisoners in this case had moved a Misc. Application in the TADA Court after which the words "True Story" have been deleted from the title of the film. He has filed this petition to challenge the legality, validity and propriety of the grant of certification to the said film by Respondent No.2 - Central Board of Film Certification (CBFC for short). He prays that an appropriate order be passed which will suspend the circulation and screening of the film till the judgment is delivered. He has also prayed for appropriate interim injunction. With respect to the submission with respect to security of life, he has affirmed a further affidavit on 10th February 2005 and placed on record the names of seven accused who were killed while on bail and list of nine accused on whom an attempt to murder was made. 6. With respect to Petitioner’s first contention concerning a fair trial and contempt of court, the defence of the Respondents Nos.3 to 6 has been that the evidence and arguments in the trial are over, the film has been based on the prosecution story and the release - 6 - of it is not something which can affect a judicially trained mind. This is not a trial by the jury. The learned judge has to decide the matter on the evidence led before him and hence there is no likelihood of any effect on administration of justice nor can it constitute any comment on the pending proceedings so as to constitute contempt of court. The Petitioner must show clear and imminent prejudice to his defence, otherwise free speech and artistic expression should not be curbed on the ground of alleged contempt. As far as the second grievance with respect to defamation is concerned, it is stated that these are all facts culled out from public domain and known to the world at large. Therefore, neither defamation can be pleaded nor any injunction sought. The necessary certificate under the statute has been given by the competent authority. Prior thereto, a disclaimer has been given, as mentioned earlier, that nothing in the narration be construed as an opinion on the guilt of the persons depicted. Thereafter the second balancing act has been done in TADA Court by deleting the words "True Story". The film makers are ready to give a further disclaimer as the third balancing act for the protection of the defence as well as prosecution, if required. There should not be any interference in the freedom of artistic expression which is otherwise guaranteed under Article 19 of the - 7 - Constitution of India on the ground of defamation as well. It is a matter of balancing the competing claims for a free trial as against free speech and expression and the film makers are ready for an appropriate balancing act short of suspension of screening of the film. 7. The petition was moved for urgent interim orders and was heard after notice to the Respondents. After hearing counsel for both the parties, an ad-interim order was passed restraining the release of the film on 27th January 2005. An S.L.P. was filed thereagainst, but the same was dismissed by the Apex Court by observing that the S.L.P. was not being entertained since it was against an interlocutory order and the matter was to be reconsidered thereafter by the High Court. The film was not seen by this Court at that time. Only the book "Black Friday" was made available. The film was viewed thereafter. Affidavit in reply has been filed by Respondents Nos.3 to 6, 1 & 2 and then a rejoinder by the Petitioner. State of Maharashtra through Commissioner of Police, Mumbai has moved a chamber summons to join in this matter as a Respondent to point out that the film causes prejudice to the prosecution as well. By an order passed on 15th February 2005, we have allowed the State to join, but - 8 - only as intervener and not as Respondent. The affidavit in support of the chamber summons by State of Maharashtra is treated as their affidavit explaining their stand with respect to this writ petition. On the request of the counsel for all the parties, the petition is heard finally at the admission stage. Rule is therefore issued and made returnable forthwith. The counsel for the parties have made their submissions and they are heard at length. 8. Before we proceed to deal with the contents of the film and the submissions on facts and law in detail, it would be desirable to refer to basic statutory provisions. The Petitioner is claiming his right under Article 21 of the Constitution which declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Right to personal liberty includes the right to fair trial and which has to be without any outside influences. He has invoked Article 14 also which guarantees equality before law and equal protection of laws. It is contended that though Article 19(1)(a) secures freedom of speech and expression, it is subject to the restrictions contained in Sub-Article (2) thereof which include restrictions on the ground of contempt of court and defamation. As against that, protection of - 9 - life and personal liberty as enshrined in Article 21 has been placed on a higher pedestal after 44th Amendment to the Constitution and even in the Emergency provisions under Article 359 sub-article (1)(a), it has now been provided that whereas the fundamental rights conferred by Part III of the Constitution could be suspended during emergency, Articles 20 and 21 are excluded from this suspension. 9. Article 19(2) reads as follows:- "19. Protection of certain rights regarding 19. Protection of certain rights regarding 19. Protection of certain rights regarding freedom of speech, etc. freedom of speech, etc. freedom of speech, etc. (1) All citizens shall have the right - (a) to freedom of speech and expression; (b) .... (g) .... (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security - 10 - of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence." The same provisions are reflected in clause (1) of section 5B of the Cinematograph Act, 1952, which provides as follows:- "5B. Principles for guidance in certifying 5B. Principles for guidance in certifying 5B. Principles for guidance in certifying films films films.- (1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of the sovereignty and integrity of India the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence." 10. As far as the submission with respect to contempt is concerned, we will have to refer to the definition of "criminal contempt" as found in section 2(c) of the Contempt of Courts Act, 1971 which reads as follows:- - 11 - "Criminal contempt Criminal contempt Criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which- (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any other manner." 11. As stated earlier, the film is based on the book "Black Friday". The book begins with the Acknowledgments. Thereafter there is an Author’s note and then Maps giving the bomb sites. Then there is a Prologue whereafter the Chapters in the book start. There are in all 17 chapters with the following captions:- - 12 - 1) The Beginning, 2) The Conspiracy, 3) The Preparations, 4) The Final Plan, 5) The Worst Day, 6) The Days After, 7) On the Run, 8) The Investigation Continues, 9) Enter Bollywood, 10) Prize Catches, 11) The Other Teams, 12) The Trial Begins, 13) Yaqub Memon, 14) The Helping Hand, 15) The Case Continues, 16) Retaliation, 17) Life after Death. These chapters are followed by an Epilogue, then the Sources and an Appendix. As far as the Acknowledgments at the beginning of the book are concerned, we have already made a reference to the same. In the Author’s Note, it has been specifically stated as follows: "Much of the story is culled from the case presented by the prosecution in the trial as the prime sources of information are the chargesheet in the case filed by the police and the statements of the accused." In the Sources mentioned at the end of the book, it is stated that the details of most of the incidents have been collected from the confessional statements of the accused or information through their depositions in the - 13 - court. Then it is stated later on that with respect to the details of the legal proceedings, the author was helped by the presiding judge and the defence advocates whose names are mentioned. It is also stated that the author was assisted by the members of CBI, Special Task Force especially one Raman Tyagi and media reports. 12. As far as the film is concerned, apart from viewing it, we also went through its script in Hindi with English translation, both of which were made available by the film makers. The film begins with the Disclaimer reproduced earlier. Thereafter a quotation from Mahatma Gandhi is printed, namely that "Eye for Eye makes the whole world blind". Then the film begins with a scene from Navpada Police Station where one Gullu is being interrogated by a police officer three days before the bomb blasts. During the interrogation, he discloses that the city is going to be bombed including at Sena Bhavan, Chief Minister’s office, Stock Exchange, etc. Then a city street is shown in the night and then the lit up durgah at Mahim. One Badshah Khan is then shown on a scooter. Thereafter there is a scene where some 20 men are shown around one Tiger Memon who tells them that Gullu has defected, but that is not going to stop them on Friday, the 12th, which is the 17th day of Ramzan, the day on which the Prophet fought the holy war and - 14 - won, i.e. the day when they had to act. 13. Thereafter the city is shown three days’ later, the traffic at the Churchgate Railway Station and then the bomb blasts at the Stock Exchange at about 1.30 p.m. when people were coming out during lunch time. Then the tragic sequences follow. First, the bomb blast at Passport Office and Century Bazar are shown. One red coloured Maruti van is found left near Century Bazar. The RC Book of the vehicle is found by the police in the name of one Rubina Memon of Mahim. Then there are scenes on the basis of this information showing the search carried out at Mahim by Police Officers Mr.Rakesh Maria and Mr.Dangle. Thereafter finding of an unclaimed parked scooter at Naigaum and which is found to be that of one Asgar Mukadam leading to his arrest. Thereafter the film proceeds as divided in various chapters. The headings of the chapters are not exactly corresponding to the chapters in the book. They are as follows:- 1) The first arrest, 2) Arrest and interrogation March - April 1993, 3) On the run, 4) Yeda (Yakub) Khan and RDX, 5) The conspiracy - I. Planning, II. Training, III. Yaqub Memon and Dawood Ibrahim, IV. What is past is prologue. - 15 - The first chapter in the film is thus for example on the first arrest which shows the arrest of above mentioned Asgar Mukadam. This Mukadam tells the story as to how the bomb blasts were planned. Thus one Mohammed Iqbal, who is an accused, is shown taking a scooter with RDX to a place in Naigaum. Then the Petitioner, Mushtaq Tarani, is shown going to Centaur Hotel at Juhu and planting a bomb. Farooq Pawale and Badshah Khan are shown parking a car at Lucky Petrol Pump near Sena Bhavan at Shivaji Park. Again Tarani (the petitioner) is shown going to Zaveri Bazar and leaving a scooter with RDX there. Thereafter a scene of throwing a bomb in Machimar Colony at Mahim. 14. Thereafter comes the second chapter of the film which is on arrest and investigation which is corresponding to Chapter 8 of the book. Arrest of various accused such as one Parvez and Imtiaz Ghavate is shown. Chapter 3 of the film is entitled "On the run", where the story of one Badshah Khan, who later-on becomes an approver, is disclosed. This chapter ends with the arrest of Badshah Khan at Rampur and his statement to the police followed by the interval. 15. After the interval, Chapter 4 of the film begins which is on one Yeda Yaqub and RDX. This chapter shows - 16 - the arrest of the relatives of one Yeda Yaqub and their ill-treatment by the police under Inspector Dangle. Then the questioning of the Investigating Officer Shri Rakesh Maria by the Press is shown wherein he states that may be there are some human rights abuses, but the executors of the bomb blasts are worse. Yeda Yaqub is shown as being in touch with one police officer Shri Arup Patnaik and imploring him to release his relatives in turn for which he will give some relevant information. The conversation of Yeda Yaqub with Arup Patnaik leads to the recovery of RDX at Nagla Bunder in District Raigad. Thereafter the chapter shows the arrest of one Khurana for tracing one Pilu Khan. When Khurana is at the police station, he sees the ill-treatment of a few ladies by policemen. On being granted bail, he goes home and kills his wife, daughter and commits suicide. This is followed by a statement of Police Commissioner Mr.Samra who tells that Khurana was never in the custody of police. 16. Then comes Chapter 5 which is on the "Conspiracy". It shows the planning as disclosed in the confession of Badshah Khan. It shows how one Javed Chikna received an injury during the riots after the demolition of Babri Masjid, and he being taken to National Hospital, Mahim. Then this Javed Chikna - 17 - meeting with one Dawood Phanse at Hotel Big Splash at Alibag, Tiger Memon imploring Dawood Phanse to help in landing RDX, Phanse wishing to meet Dawood Ibrahim himself and his meeting with Dawood Ibrahim in Dubai. 17. Thereafter comes the second part of this Chapter 5 which is on "Training". This is corresponding to chapter of Preparation in the book. This shows Dawood Phanse linking with the officers of Excise and Customs at Village Shekadi, a coastal village, followed by unloading of RDX and AK-56 rifles. Then it is shown that Badshah Khan and some others go to Dubai and to Islamabad. Gullu is shown joining them at Islamabad. Then the training of operating detonators and explosives followed by a meeting at Dubai where an oath is given by Tiger Memon by placing hands on Quran. Thereafter the return of all the persons concerned to Mumbai, a visit to the Head Office of Municipal Corporation and plan to blast it followed by the arrest of Gullu which is shown at the beginning of the film. Then a statement of Mr.Samra, Police Commissioner that on 4th November 1993 the charge-sheet had been filed and a leading lawyer (whose name is mentioned) is appointed as the Prosecutor. Then comes Part III of this chapter which is on Yaqub Memon, a relative of Tiger Memon and Dawood Ibrahim. It is shown as to how Tiger Memon’s property - 18 - was destroyed in the post Ayodhya Riots and how relatives of Dawood Ibrahim suffered and their sending him bangles in a sealed cover, and Dawood talking to a leading lawyer who is also in politics to find out a way. The film ends with the shots of Babri Masjid demolition, riots and bomb blasts and again the earlier quoted sentence of Gandhiji. 18. As far as the Petitioner himself is concerned, he is shown planting a bomb at the Juhu Centaur Hotel in a suitcase (pages 23 and 24 of the English Script) and at the Zaveri Bazar in a scooter (page 29 of the English Script). Then he is shown driving a car wherein various participants in the bomb blasts are going from place to place and ultimately throwing the detonator somewhere near Prabhadevi, vacating the car and the Petitioner being asked to leave the car forthwith (pages 30 and 31 of the English Script). Thereafter it is shown that the participants in the conspiracy are having a connection with Pakistan (pages 93 to 97 of the English Script). This is also seen in the conversation in Dubai wherein Tiger Memon, a person claiming to be of ISI, and the participants in the conspiracy are discussing the plans for retaliation after the demolition of Babri Masjid. After the episode concerning the ill-treatment of the relatives of Yeda Yaqub, Shri Maria is asked questions - 19 - by members of Press and while defending the action, he states that sometimes some innocents are arrested along with ten such criminals. Nobody is perfect in the world. These people feel that what they have done is absolutely right, they are jehadis, they are terrorists and extremists. Forget third degrees, even if their fingers are cut, they will not open their mouth until they are dishonoured. 19. In paragraphs 4, 6, 8, 9, 11, 12 and 15 (vii) of this petition, it is submitted that the fact that the author of the book has given "special thanks" to the judge for the support given by him, the fact that he claims it to be the true story with real characters and incidents (para 4) and the fact that the film also claims to be true to the book (with certain creative