1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER S.B. Cr. Misc. Petition NO. 463/2009. (Suo Moto Vs. State) Date of Order : 13th October, 2009. P R E S E N T HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr Javed Choudhary, Public Prosecutor. Mr M.M. Khetan for Mr. SK Jindal, for the respondent. BY THE COURT: REPORTABLE On 13.2.09 a co-ordinate Bench, while taking suo motu cognizance of the serious irregularities and grave situation at Amer Palace, Jaipur, issued notices to State of Rajasthan through the Chief Secretary, Director General of Police, Rajasthan, Jaipur, Secretary, Tourist Department, Government of Rajasthan, Archeology Department, Government of Rajasthan, Superintendent, Amer Palace Trust as also the Amer Development Authority and had passed the following order: “Money and greed coupled with power create blindness, madness and the person become totally insane and insensitive. When the government and the public authorities indulge in such practice, a great havoc is created resulting in chaos all around. The episode and mishap happened in Amer Palace, Jaipur yesterday is a glaring example of the same. Historic Pink City of Jaipur and specially Amer Fort Palace are on world tourist map. The beauty, grandeur and architecture of the Fort and the Palace attract thousands of tourists from all over the country and foreigners also. Religious sentimes of lacs of people not only of the city of Jaipur but other 2 parts of the country are also attached to the famous Sheela Mata Temple situated in the same complex. The Amer palace not only have a historic value but a protected monument also. The entire complex has legally been declared so. The original structure, shape, colour and interior including outside landscaping in no case be tampered with except for the minor repair works. Even the restoration work can also be undertaken to a limited extent to restore back the original look and shape. Lot of restrictions are imposed on the tourists also while moving around the complex. Photography and video filming can also be allowed to a limited extent in notified areas. In the interest of protecting such historical monuments the authorities concerned are expected to take all necessary measures and follow the norms and rules strictly. But, it all requires dedication, attachment and will to perform their duties in their duties in right perspective. Unfortunately, not only the public but specially the concerned authorities have become blind, deaf and dumb in the glitter of money. In recent past, such historical protected monuments have become commercial source of income. The very basic structure, shape and original grandeur have been massively tampered with under the pretext of development where huge funds are pocketed by few persons who do not even have a basic knowledge of history and architecture. The entire original land-scape of the main courtyard at the entrance of the Amer Fort, Palace and the Temple have been destroyed. The trees, fountains, flowerbeds covered by carved stone Jalees have been raised to the ground, may be, to allow construction of huge sets for film shootings as in the present case. Under the law, no such constructions, even temporary, can be allowed in protected monuments destroying and damaging the original basic shape and image of the monument which attracts thousands of tourists every year. The authorities not even have anticipated and visualised the unforeseen accidents and mishaps at such places of great importance while giving permission for not only constructing a huge set but shooting a commercial film with so called famous stars which has ultimately resulted in not only large scale damages to the building but serious 3 injuries to large number of people because of total chaos and stampede.” 2. As per the said order, a detail report was sought in regard to giving permission for constructing a huge set and film shooting in the complex when otherwise there are restrictions on photography and video shooting in the complex by the tourists. The authorities were also directed to show cause as to why adequate compensation may not be recovered not only from the erring officers but from the Film Producer also for damages to the public property and injuries caused to the human beings. Further, the learned Advocate-General was directed to accept notices on behalf of the authorities and to submit written within two weeks. It was also ordered that since great inconvenience has been caused to a large number of tourists and the devotees visiting the Palace and the Temple and mishap having happened due to total insensitive callous approach of the authorities concerned, the film shooting in the Amer Fort complex was directed to be stopped immediately. The said directions were to be informed to the authorities telephonically by the learned Advocate General, who was also to inform the Court about compliance by 12.00 noon on that day. The Court had also ordered that no further permission for film shooting be granted by the authorities in Amer Fort and Palace till necessary directions issued by it. The matter was ordered to be listed on 3rd March, 2009. Mr. Abhinav Sharma, Advocate was appointed as Amicus Curiae to assist the Court in the case. The office was directed to register the matter as DB 4 Misc. Writ Petition and to place the same before Hon'ble the Chief Justice. 3. The matter was then registered as DB Civil Writ Petition (PIL) No. 1826/09 (Suo Motu Vs. State). Thereafter, an application for modification of the order dated 13.2.09 was filed by the Director of Vijay Galani Movies through its proprietor Vijay Galani and a reply to the same was filed by the amicus curiae appointed by the Court. Thereafter, the matter was heard by the Division Bench presided by the Hon'ble Acting Chief Justice on 18.2.09. The learned Division Bench passed the following orders: “Learned Division Bench of this Court taking suo moto cognizance noticing serious irregularities and grave situation committed in the preservation and maintenance of Amar Palace and the nature of the film shooting “Veer”, issued notices to the State of Rajasthan through Chief Secretary, Director General of Police, Rajasthan, Jaipur, Secretary, Tourist Department, Government of Rajasthan, Archeology Department, Government of Rajasthan, Superintendent, Amer Palace Trust as also the Amer Development Authority, Amer Palace and further notice that underr the garb of remuneration and development, the funds have been pocketed by the authorities of the State. While noticing it, a direction came to be issued to submit a detailed report in regard to grant of permission for constructing huge set and film shooting in the complex. The Court further directed that no further permission for film shooting shall be granted by the authorities in Amer Fort and Palace till necessary direction of the Court. Since the shooting of the film “Veer” was in progress, Director of Vijay Galani Movies through its Proprietor Vijay Galani has presented this application seeking modification of the order dated 13.2.09. Reply has been filed by the Amicus Curiae appointed by the Court to assist the Court. 5 We have heard learned counsels for the film and besides Advocate General and counsel for other respondent. It has been brought to our notice that the license has been granted to the firm for shooting film “Veer” at Amer Fort, excluding Sheesh Mahal, for a period of 5 days only. We have also seen from the photocopy presented before us by learned Amicus Curiae that they have entered into the premises on 22.1.09 for shooting and raised infrastructures for film. It is amply clear that before the date of grant of license, they entered the premises and used it. This is admitted by both the parties including learned Advocate-General representing the State. At present, the situation is that the film is in the progress and its shooting has been stayed. Necessary permission in terms of the license has been granted by the concerned authority. So far as the other things noticed with order by the Court, nothing has been canvassed here except the present application for modification of the order to the extent of shooting of the film. The film authority has used the premises either from 26.1.09 or 22.1.09, which is a disputed fact as per the learned counsel for the parties. We direct Superintendent, Amer Palace Trust and also Director of the film to file their respective affidavit stating therein that from which date they entered into the premises and used the same. The Superintendent, Amer Palace Trust will determine the compensation / fee for these days also, which should reflect in the affidavit. The affidavit should further state that till the premises is used, since the permission is only for five days, how much fee and compensation is to be paid by the film party to the concerned authority. Such an affidavit shall be placed before the Court by tomorrow. While assessing the compensation and fee, the Superintendent, Amer Palace Trust will take care that it should be determined in terms of the provisions of the Rules. The proceedings of the Court shall not be published either in the print or electronic media. List it again on 19.2.09 at 2.00 PM.” 4. On 19.2.09, the learned Division Bench presided by Hon'ble the Acting Chief Justice disposed of the aforesaid 6 application filed by the Director of the Film as under: “Pursuant to our order dated 18.02.2009, the Superintendent, Amer Palace, Jaipur has filed the affidavit. It has been stated therein that he has convened a meeting of the concerned officers on 18.02.2009 and decided that any person seeking permission for shooting of the film will be required to pay 20% of the prescribed fees per day(i.e. Rupees Two Lakhs per day) for the days prior to start of shooting and at the most ten days time will be granted for such preparation. After shooting of the film, the person(licencee) will be granted three days time to remove the set and will be charged 10% of the prescribed fees per day. In case the set is not removed within three days, the fees chargeable shall be 20% of the prescribed fees per day. It has also been stated at the bar that earlier rules were silent about it and now efforts have been made as per the directions of the Court by the officers of the State to fill up the blanks for the days the permission for entry in the premises given to the licencee for making preparation and erasing infrastructure and for its removal. No fees was being levied in past. Looking to the framework and the fees chargeable, we see that there is no logic or rationale in it for the reason that once the permission to enter in the premises of the protected monument is given and used by the licencee, why the same amount of fees should not be charged. We leave it upon the authorities of the State to decide it. Mr. Alok Sharma appearing for the applicant submits that shooting of the film was undertaken pursuant to the licence granted by the competent authority. It is further stated that as per the Rajasthan Monuments, Archaeological Sites and Antiquities Act, 1961 and the rules made thereunder, the entry in the premises can be given even for shooting of film, as rules permit for grant of licence for that purpose. Thus, shooting of film was undertaken under the authority of law. It is further stated that no damage has been caused to the monument, as while shooting the film, care was taken to see that no damage is caused to the protected monument. It is, however, submitted that for the purpose of preparation of the set, entry in the protected monument was taken from 26th January, 2009. It is admitted that no permission was existing 7 with them to enter into the premises from 26th January, 2009 but taking into consideration the past practice, entry in the protected monument is permitted for preparation of the sets for shooting as and when licence to shoot a film is given. However, Mr. Alok Sharma, learned counsel for the applicant on instruction has voluntarily offered to make additional payment of Rs. 20 Lakhs besides licence fees and other remunerations which have been decided by the Superintendent, Amer Palace, Jaipur, if a permission of shooting is granted. Mr. Alok Sharma, learned counsel for the applicant further submits that the shooting of the film is in the mid way and all the staff including actors have left the Palace. In case the Court permits shooting of the film, the period for bringing them back and attaining the tempo of the film should be granted to the them. Under the circumstance as projected before us on 17th and 18th February, 2009, we are of the view that shooting of the film 'Veer' should be permitted for which the applicant has a licence. We are also of the considered view that action of the Court does not prejudice the cause of any litigant. Shooting of the film has been stopped by the Court vide order dated 12.02.2009. The permission granted by the Superintendent, Amer Palace, Jaipur commenced from 10th February, 2009 and ended on 14th February, 2009. The period which could not be utilized by the licencee shall be granted by the licensing authority to the licencee. It has also been stated at the bar that because of the shooting of the film people assembled and a wall collapsed causing injuries to certain persons. As on day it has been submitted by the learned amicus curiae that one of the injured is still in the hospital who is a Journalist(Photographer). He needs some compensation and help for treatment. Applicant has volunteered to pay additional amount of Rs. 20 Lakhs towards the use of premises on the days prior to the date of licence. We direct that the aforesaid amount would be utilized for development of the protected monument and for the help of injured persons. In view of the above discussion, the shooting of the film in Amer Palace, Jaipur would be permitted only on following terms: (i) Shooting of the film would be strictly as per 8 the terms and conditions of the licence. (ii) For the purpose of shooting and preparation of sets, no damage should be caused to the protected monument. (iii) If due to any reason beyond control of the applicant, any damage is caused to the protected monument, the same would be duly compensated as determined by the Superintendent of Amer Palace, Jaipur. (iv) The Superintendent, Amer Palace, Jaipur would monitor the whole exercise of shooting of film so that no damage is caused to the protected monument and all possible care should be taken for that purpose. (v) Shooting of film should not cause any hindrance with regard to tourists visiting that place during the period of shooting. (vi) The permission of shooting in Amer would be subject to payment of Rs. 20 Lakhs to the licensing authority as agreed by the applicant. The application is disposed of.” 5. The aforesaid writ petition (PIL) was again listed before the Court on 2.3.09 when the learned Advocate-General sought time to file reply and thereafter, when the case was listed on 31.3.09, the learned Advocate-General was directed to call the Director, Archaeological Department with the notification in regard to declaring the Amer Fort and the Palace as protected monument. Then, it was ordered that the matter be put up on the next date at 10.30 as first case for further consideration and the directions. On 1st April, 2009, the learned Division Bench which had taken suo motu cognizance on 13.2.09, passed the following orders: 9 “Mr BL Gupta, Director (Archelogy) and Mr. Jafrullah Khan, Superintendent (Archeology), Amer Palace are present. Mr Bapna, learned Advocate General is directed to submit the details of the formation/constitution of the Amer Development Board as informed by the authorities which is looking after the renovation or development of Amer. The notification declaring Amer as protected monument issued way back on 12.12.74 may also be placed on record. The details of the funds received by the Board as also the nature of development already undertaken and amount expended on such development work till date may also be submitted in the affidavit. The details of the agencies entrusted to complete the work may also be given. The affidavit be filed within two weeks. Mr Abhinav Sharma, had been appointed as Amicus Curiae to assit the Court in the present matter. Since after inspection of the site, a detailed report has been submitted by him along with large number of photographs of the site, in the interest of justice, the State Government is directed to pay Rs. 50,000/- to Mr Abhinav Sharma as against the expenditure already incurred and to be incurred during the pendency of the present writ petition. The payment be made within two weeks prior to the next date. Put up on 27.4.09 for further consideration and directions along with DB Civil Writ Petition No. 3360/09 before this Bench.” 6. Since then the PIL Petition has been listed before the Division Bench from time to time, and the matter remained pending for adjudication. In view of the nature of the subject matter, the learned Division Bench had been doing much exercise to look into it from all aspects as it was of great public importance. 7. Thereafter, a complaint came to be filed before the Chief Judicial Magistrate, Jaipur Distt. Jaipur against accused 10 persons which included various authorities of Amer Development and Management Authority and the producer of the Film namely, Vijay Galani. The relevant extracts of the complaint reads as follows: 3. यह िक गत िदनांक 10.02.09 से आमेर महल में वीर िफल्म िक शूिटंग करने की अनुमित अिभयुƠ संख्या 3 व 4 को ूदान की गई िजसके तहत वीर िफल्म की शूिटंग में कायर् करने वाले यूिनट के करीबन 2000 सदःय तथा अन्य व्यिƠ आमेर महल में िदनांक 10.02.09 से शूिटंग करना ूारंभ कर िदया तथा शूिटंग करने से पूवर् उन्होंने आमेर महल के बीच में इिःथत जलेब चौक में उƠ िफल्म की शूिटंग के िलए लकडी की बिल्लयों, लोहे के पोलो, सिरयों व अन्य साममीयों आिद से भरी भरकम सेट तैयार िकया गया िजससे की जलेब चौक के सम्पूणर् भाग पर महल से भी ऊंचा सेट लगने के पƱात आमेर महल में आने वाले दशर्नािथर्यों , देशी व िवदेशी ूयाताको तथा आम जनता को किठनाइयों व रूकावट का सामना करना पड़ा तथा पिरवादी को भी अिभयुƠ संख्या 1 व 2 के गाडȾ तथा अिभयुƠ संख्या 3 व 4 के सुरक्षा गाडȾ एवं िसक्यूिरटी ने आमेर महल में ूवेश नहीं करने िदया ना ही िशला माता के मंिदर में जाकर दशर्न करने िदए| 4 .यह है की िवƳ ूिसƨ आमेर महल भारतवषर् की ऐितहािसक धरोहर है, िजसे देखने व उसमे इिःथत िशला माता के मंिदर में िशला माता जी के दशर्न हेतु देशी, िवदेशी पयर्टक तथा ःथानीय िनवािसगन ूितिदन आते है | िजसमे पिरवादी भी शािमल है| उƠ आमेर महल उसके अिभन्न अंगो को The Rajasthan monuments Archaeological Sites & Autiguities Act 1961 & Rules-1968 के तहत सरंिसक ःमारक घोिषत िकया गया है तथा उसके पास के शैऽो को सरंिसक शेऽ घोिषत िकया गया | 5. यह की अिभयुƠ संख्या १ व २ ने अिभयुƠ संख्या ३ व ४ को आमेर महल में गलत एवं िविधक ूिबया के िवǽध शूिटंग की अनुमित ूदान कर दी, िजसके तहत अिभयुƠ संख्या ३ व ४ ने मन माने तरीके से समःत िनयमो को ताक पर रखकर देशी व िवदेशी पयर्टकों को परेशानी में डालकर व आमजन की जन भावनाओं व धािमर्क आःथाओं की परवाह िकये बगेर आमेर महल में शूिटंग करनी ूारंभ कर दी, िजसके सन्दभर् में गत काफी िदनों से समाचार पऽों में समाचार भी ूकािशत िकये जा रही है तथा िजसके सन्दभर् में माननीय अित० िसिवल न्यायाधीश (क.ख.) बम-१ के समक्ष एक िसिवल वाद िवचाराधीन है, िजसमे अिभयुƠ संख्या १ व २ को माननीय उÍच न्यायालय Ʈारा अंतिरम िनशेधाघा से िदनाक १२.०२.०९ को पाबन्द भी फ़रमाया गया है तथा माननीय उÍच न्यायालय बेंच Ʈारा िदनांक १३.०२.०९ को अखबारों में ूकािशत खबरों के आधार पर ःव-ूेिरत ूसंËयान 11 लेकर आमेर महल में चल रही शूिटंग पर िनयम िवरूƮ होने से रोक लगा दी है | 6. यह की अिभयुƠ संख्या १ व २ Ʈारा अिभयुƠ संख्या ३ व ४ Ʈारा की जा रही िनयम िवरूƮ शूिटंग पर ध्यान नहीं िदए जाने व अिभयुƠ संख्या ३ व ४ Ʈारा मनमाने िनयमो के िवरूƮ शूिटंग करने के कारण िदनांक १२.०२.०९ को आमेर महल में ऐितहािसक दीवार टटू गई, िजससे की करीबन 17 व्यिƠ उƠ दीवार के नीचे दबकर गंभीर रूप से घायल हो गए, िजसमे से 8 व्यिƠ अःपताल में भतȸ है | 7. यह है की आमेर महल में जब दीवार ढही उस समय जलेब चौक में करीबन 5000 लोग एकिऽत थे तथा घटना ःथल के 6 फीट चोड व 25 फीट लम्बे राःते में 500 लोग खड़े थे तथा अिभयुƠ संख्या 1, 2, 3 व 4 Ʈारा भीड़ की सुरक्षा के िलए कोई इंतजाम नहीं िकये गए थे | ना ही पयर्टकों को व दशर्नािथर्यों के िलये पूवर् की भांित कोई राःता मंिदर व महल में जाने के िलए छोड़े गये | 8. यह की अिभयुƠगन संख्या 1 व २ ने अिभयुƠ संख्या 3 व 4 को िनयमो के िवरूƮ शूिटंग की अनुमित ूदान करते हए सरंिक्षत ःमारक आमेर ु महल के मौिलक ःवǽप से छेड़छाड़ की है तथा अिभयुकत्गन संख्या 3 व 4 ने उƠ आमेर महल के ऐितहािसक ःवǽप की परवाह नहीं करते हए महल के अन्दर ु भारी भरकम सेट लगाकर महल का ःवǽप (महल की दीवार ढहना) से िखलवाड़ की है तथा िदनांक 12.02.09 को शूिटंग के समय पहले तो भारी भीड़ को शूिटंग के िलए ूवेश देना तथा उनकी सुरक्षा के िलए कोई पुख्ता इंतजाम नहीं करना िजस कारण उƠ िदन को आमेर महल में दीवार ढहने से 17 व्यिƠयों का घायल होना अिभयुकत्गनो का जानबुजकर िकया गया आपरािधक कृत्य है | 9. यह है की अिभयुƠगणों के आपरािधक कृत्यों के कारण सरंिक्षत ऐितहािसक ःमारक आमेर महल में दीवार शूिटंग चलते रहने के दौरान ढही है तथा सरंिक्षत ःमारक आमेर महल में भारी भरकम सेट लगाकर आमेर महल के मौिलक व ऐितहािसक ःवǽप से छेड़छाड़ की है जो इनका कृत्य अन्तर्गत धारा 17 The Rajasthan monuments Archaeological Sites & Autiguities Act 1961 के तहत दंडनीय अपराध है | इसी ूकार अिभयुƠगण संख्या १ व २ के Ʈारा उƠ अिधिनयम के ूावधानों के तहत जो आचरण करना था, उसकी जानबूजकर अव£ा की है तथा शूिटंग के दौरान पिरवादी व आम जन के महल में इिःथत िशला माता के मंिदर में जाने नहीं देने पर पिरवादी की धािमर्क भावनाओं को ठेस पहची है तथा अिभयुƠगणों Ʈारा की गयी उपेक्षा पूवर् कायर् करने के ू फलःवरूप आमेर महल की दीवार ढहने से १७ व्यिƠयों का घायल होने पर उनके मानव जीवन पर संकट उत्पन्न हो गया, िजससे अिभयुƠगन संख्या १ से ४ 12 उपरोƠ आपरािधक कृत्य भा. द. स. की धारा १६६, २९५, ३३८ के तहत दंडनीय अपराध है, िजसके िलए उन्हें दिण्डत िकया जाना आवँयक है | अिभयुƠगन संख्या १ व २ ने कुछ िनजी व्यिƠयों को फायदा समःत िनयमो को ताक पर रखकर अिभयुƠ गण संख्या १ व २ ने अिभयुƠ गण संख्या ३ व ४ को सरकारी आय का नुक्सान कर कम िकराये पर शूिटंग करने पर अनुमित ूदान की जबिक अिभयुƠ गण संख्या १ व २ राज्य सरकार के िहत सरंिक्षत करने के िलए बाध्य है जो अिभयुƠ गण संख्या १ व २ Ʈारा आपरािधक कृत्य Ʈारा ४०९ आई.पी.सी. के तहत दंडनीय अपराध है |” 8. A look to Para 5 of the complaint goes to show that reference has been made to the above mentioned suo motu cognizance taken by the co-ordinate Bench of this Court and the interim orders passed therein. After the office report, the complaint was posted for 16.2.09. On that day, the complainant was present but he sought time for producing evidence. Again, the case was listed on 25.2.09 when the complainant was absent, and therefore, the case was ordered to be listed on 28.2.09 for evidence of the complainant.