1 wp228310 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2283 OF 2010 1. U.S.A. Cable Networks, ] a registered Partnership firm, having its office ] at New Supermarket, 1st Floor, Shivaji Chowk, ] Ulhasnagar – 421003, Dist. Thane. ] And the following are its members ] 2. Rajkumar Mohanram Savani ] 3. Lachman Tejumal Ghambani ] 4. Sonu Bachumal Chapr ] 5. Dinesh Jayantilal Patel ] 6. Sunder Aasandas Mangtani ] 7. Gopi Radhomal Nagdev ] 8. Ramesh Thanwardas Chetnani ] 9. Narayan Bhagwandas Vasanthani ] 10. Sachanand Atmaram Karira ] 11. Manohar Kungumal Gabra ] 12. Hargun Govindram Kriplani ] All having addresses as above ] Petitioners Members of U.S.A. Cable Networks ] ...Petitioners V/s. 1. State of Maharashtra ] through the Public Prosecutor, High Court (A.S.), ] Mumbai ] 2. Commissioner of Police, Thane ] Office of the Commissioner of Police, Thane ] 3. Assistant Commissioner of Police, ] Ulhasnagar Division, Office of the ] Assistant Commissioner of Police, Powai Chowk, ] Ulhasnagar-3, Dist. Thane ] 4. Hardas Hazarimal Tharwani ] residing at Tharwani Villa, C-1 Block Road, ] Ulhasnagar-1, Dist. Thane ] ...Respondents 2 wp228310 Mr. Subhash Jha with Mr. Atal Dube i/by M/s. Law Global for the Petitioners Mr. H.J. Dedhia, A.P.P., for the State Mr. Rajesh S. Datar for Respondent No. 4. CORAM: A.M. KHANWILKAR AND A.R. JOSHI, JJ. DATE: 1ST MARCH, 2011 JUDGMENT: (Per A.M. Khanwilkar, J.):- The petitioners have pressed for three broad reliefs by way of this petition under Article 226 of the Constitution of India. The first relief is to quash F.I.R. No. II-106/10 dated 6th July, 2010 registered at Central Police Station, Ulhasnagar, District Thane. The second relief is to direct respondent No. 3 to forthwith remove the seal put by the Central Police Station, Ulhasnagar, on the control room of the petitioners on 6th July, 2010. The consequential relief claimed by the petitioners is to direct respondent No. 3 to compensate the petitioners in the sum of Rs.1 crore on account of deprivation of their fundamental rights due to sealing of the control room of the petitioners on 6th July, 2010, which resulted in completely closing down the business of the petitioners. 3 wp228310 2. Insofar as the second relief is concerned, the petitioners had simultaneously moved the lower Court for the same relief. It is not in dispute that the lower Court has allowed the said application preferred by the petitioners and directed the local police to forthwith remove the seal put on the control room of the petitioners. That order was passed on 18th January, 2011. Accordingly, it is common ground that the seal on the control room has now been removed on 20th January, 2011. In that sense, the second relief does not survive for consideration. However, on the basis of plea regarding wrongful sealing of the control room and in any case, unauthorised continuance of sealing of the control room on and after 25th September, 2010 till it was removed on 20th January, 2011, the petitioners are entitled for compensation. This is the third relief claimed by the petitioners. 3. Insofar as power of seizure of equipments used for operating the cable television network by the local police is concerned, the same flows from Section 11 of the Cable Television Networks (Regulation) Act, 1995. Section 11 reads thus:- “Power to seize equipment used for operating the cable television network.- (1) If any authorised officer has reason to believe that the provisions of sections 3, 4A, 5, 6 or 8 have been or are being contravened by any cable operator, he may seize the 4 wp228310 equipment being used by such cable operator for operating the cable television network. (2) No such equipment shall be retained by the authorised officer for a period exceeding ten days from the date of its seizure unless the approval of the District Judge, within the local limits of whose jurisdiction such seizure has been made, has been obtained for such retention.” 4. In the present case, after registration of F.I.R., the local police proceeded to seal the control room, as the F.I.R. was in respect of offence punishable due to contravention of Rule 6(1)(d), (i), (m) and 6(2) of the Cable Television Networks Rules, 1994 (hereinafter referred to as “the said Rules” or “Rules of 1994”), read with Sections 5 and 16(1)(b) of the Cable Television Networks (Regulation) Act, 1995 (hereinafter referred to as “the said Act” or “the Act of 1995”). As required by sub- section (2) of Section 11, within 10 days from such sealing of equipments, the local police moved the concerned Court for allowing them to continue the seal for a period exceeding 10 days. On that application, the Additional Sessions Judge, Kalyan, vide order dated 20th September, 2010 passed below Exhibit 1 in M.A. No. 29 of 2010, authorised the local police to continue the seizure up to 24th September, 2010. It is not in dispute that the authorised officer, thereafter, did not move the concerned Court for continuance of the seizure beyond 24th September, 2010. 5 wp228310 5. In the context of this relief, it was argued that the seizure order was passed by the Assistant Commissioner of Police. He had no authority to pass such order, as the expression “authorised officer” appearing in Section 11 has been defined under Section 2(a) of the Act. The said definition reads thus:- “S.2(a) ‘authorised officer’ means, within his local limits of jurisdiction,- (i) a District Magistrate, or (ii) a Sub-divisional Magistrate, or (iii) a Commissioner of Police, and includes any other officer notified in the Official Gazette, by the Central Government or the State Government, to be an authorised officer for such local limits of jurisdiction as may be determined by that Government;” Indeed, this definition refers to the officers such as the District Magistrate, Sub-Divisional Magistrate or Commissioner of Police. But that does not mean that other officers of the Government, other than the specified designations in clauses (i) to (iii), cannot be authorised to exercise powers under Section 11 of the Act. Inasmuch as the definition of the authorised officer is an inclusive term, which includes any other officer notified in the Official Gazette by the appropriate Government to 6 wp228310 be an authorised officer for such local limits of jurisdiction as may be determined by that Government. 6. In exercise of powers under Sections 11(1) and 19 of the Act of 1995, the State Government has issued a notification in the name of the Governor under the signature of Deputy Secretary to Government, Home department (Special), Mantralaya, Mumbai, dated 21st August, 1996, which is stated to be published in the Official Gazette to notify the officers of the Government who can discharge the powers and duties of the authorised officer under the Act of 1995. This notification, amongst others, refers to Assistant Commissioners of Police as having been authorised for the purpose of Sections 11 and 19, but within their respective jurisdictions. As aforesaid, in the present case, the seizure order has been initially issued by the Assistant Commissioner of Police and the same was extended by the Sessions Court until 24th September, 2010. Suffice it to observe that the argument of the petitioners that the Assistant Commissioner of Police was not empowered to exercise powers under Section 11 of the Act is devoid of merits. 7. The next argument of the petitioners, in the context of the third relief, is that, even if the Assistant Commissioner of Police can be 7 wp228310 said to be authorised officer to exercise power to seize equipment used for operating the cable television network, however, in the fact situation of the present case, the act of the Assistant Commissioner of Police is a colourable exercise of power. According to the petitioners, the action of sealing the control room could, at best, be resorted to only when the offending activity is so disturbing as would affect the public tranquility and not merely because the programme relayed by the television network is affecting the reputation or character of an individual, which would, at best, be a law and order issue. This argument clearly overlooks the purport of sub-section (1) of Section 11 of the Act. It stipulates that the power of seizure of equipments can be exercised by the authorised officer, if he has reason to believe that the provisions of Section 3, 4A, 5, 6 or 8 of the Act have been or are being contravened by any cable operator. Section 3 mandates that no person shall operate a cable television network, unless he is registered as a cable operator under the Act. Section 4A makes it obligatory for every cable operator to transmit or re-transmit programme of any pay channel through an addressable system. Section 5 stipulates that no person shall transmit or re-transmit through a cable service any programme, unless such programme is in conformity with the prescribed programme code. The prescribed programme code can be culled out from Rule 6 of the said Rules. 8 wp228310 Section 6 of the Act postulates that no person shall transmit or re- transmit through a cable service any advertisement, unless such advertisement is in conformity with the prescribed advertisement code. The prescribed advertisement code can be culled out from Rule 7 of the said Rules. Lastly, Section 8 mandates that every cable operator shall re- transmit compulsorily transmission, re-transmitting the compulsory Doordarshan channels. In the present case, the F.I.R. is registered in respect of transmission of promos, which, according to the complainant, is not in conformity with the prescribed code. 8. Reverting back to the sweep of Section 11, if the complaint pertains to contravention of any of the specified provisions by the concerned cable operator, the authorised officer, if has reason to believe that such contravention has occurred, can proceed to seize equipment used for operating the cable television network. In the present case, the complaint registered does refer to contravention of Section 5 read with Section 16(1)(b) of the Act. The concerned Assistant Commissioner of Police, in his affidavit, has stated that, on receipt of the written complaint regarding the display of offending programme, which defamed the complainant and his friends and family members, he proceeded to issue seizure order, as it was a case of repetition of the offending Act, in spite 9 wp228310 of instructions given to the petitioners to refrain from transmitting any programme or channel, which is not in conformity with the prescribed programme code. Going by the affidavit of the concerned Assistant Commissioner of Police, it is noticed that, as he had reason to believe that specified provisions have been contravened by the petitioners, he was within his powers to pass an order of seizure, in exercise of powers under Section 11(1) of the Act. In our opinion, therefore, the act of the Assistant Commissioner of Police in issuing seizure order resulting in sealing of the control room of the petitioners cannot be said to be colourable exercise of power as such. We are not impressed by the argument of the petitioners that only if the display of programme was to result in affecting public tranquility, the power under Section 11(1) of the Act can be exercised by authorised officer. Section 11(1) does not provide for such inhibition. Indeed, the power can be exercised by authorised officer, if he has reason to believe that the cable operator has contravened any of the specified provisions. As the F.I.R. refers to contravention of Section 5 read with Section 16(1)(b) of the Act, the only circumspection that was required to be observed by the authorised officer was to satisfy himself that the promos transmitted by the petitioners through their cable network service was not in conformity with the programme code specified in the said Rules, as the grievance of the 10 wp228310 complainant was about defamatory promos relayed by the petitioners. It would certainly attract Rule 6(1)(d), (i) and (m), subject to proving the ingredients thereof. Indeed, at the stage of issuing seizure order, the authorised officer must have reason to believe that the cable operator was contravening the specified provisions. The programme code specified in Rule 6 mandates that no programme should be carried in the cable service, which, amongst others, contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths; or criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country; or contains visuals or threats which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups. Keeping in mind the programme code specified in Rule 6, it is not possible to countenance the argument of the petitioners that only if the relay of programme were to affect the public tranquility, the power under Section 11 can be invoked by the authorised officer. 9. The next argument, in the context of the third relief, is that, at any rate, the Sessions Court had permitted sealing of the control room only until 24th September, 2010. However, the seal on the control room was continued even thereafter until 20th January, 2011. The continuance 11 wp228310 of sealing beyond 24th September, 2010 was completely in disregard of the mandatory provisions contained in Section 11(2) of the Act. The petitioners would thus argue that, even if the initial seizure order passed by the Assistant Commissioner of Police is accepted as valid and proper, the fact remains that the continued sealing of control room of the petitioners beyond 25th September, 2010 till 20th January, 2011, by no standard, can be said to be proper and under authority of law. In that, the Sessions Court, vide order dated 20th September, 2010, permitted continued seizure only till 24th September, 2010. Admittedly, neither the authorised officer nor the local police moved the concerned Court for continuing the seizure of the control room of the petitioners. To this extent, the petitioners may be justified in contending that no order for continued sealing of the control room on and from 25th September, 2010 till 20th January, 2011 was in existence. 10. However, the explanation offered by the authorised officer and the local police is that, since the petitioners had approached this Court by way of present writ petition filed on 26th July, 2010, they were under bona fide impression that the question regarding the continuance of sealing of the control room was sub judice before this Court. However, during the pendency of the writ petition, having realised that it 12 wp228310 was necessary to take out formal application before the concerned Court for continuance of sealing of the control room of the petitioners, such application was filed before the concerned Court on 24th November, 2010. This fact has been stated by the Assistant Commissioner of Police in his communication dated 25th November, 2010 to the legal notice received from the petitioners’ advocate dated 22nd November, 2010. Indeed, the said application was finally rejected by the concerned Court on 18th January, 2011; and immediately thereafter, the seal on the control room of the petitioners was removed on 20th January, 2011. We would not express any final opinion on this explanation offered by the authorised officer and the local police, as the main proceedings are pending before the lower Court. This controversy can be addressed in the said proceedings. Depending on the finding of the Court of competent jurisdiction on the said rival plea of the parties, only thereafter it may be possible to consider the relief claimed by the petitioners to compensate them in the sum of Rs.1 crore, as their business was completely stopped because of the continuance of sealing of the control room even after 25th September, 2010 till 20th January, 2011. 11. We are inclined to take this view also for the additional reason that, to answer this controversy, this Court may inevitably have to 13 wp228310 examine the disputed facts. Besides, on what basis the petitioners are claiming compensation in the sum of Rs. 1 crore, is also a matter not spelt out in the writ petition at all. No foundation to justify the claim for compensation of an amount of Rs.1 crore has been laid in the petition. No material facts in that behalf are forthcoming. At any rate, the petitioners would not be entitled for any compensation between the initial seizure order till 24th September, 2010, inasmuch as the petitioners have allowed the order passed by the Sessions Court dated 20th September, 2010 to attain finality. Taking over all view of the matter, therefore, in our opinion, the relief for awarding compensation to the petitioners in the sum of Rs.1 crore, as prayed, cannot be entertained in this petition. We leave that question open to the petitioners, to be pursued in other appropriate proceedings. 12. That takes us to the first relief claimed by the petitioners of quashing of F.I.R. No. II-106/2010 dated 6th July, 2010 for offence punishable under Section 5 read with Section 16(1)(b) of the Act and Rule 6(1)(d), (i), (m) and 6(2) of the Rules. In this context, mainly four points were urged before us. Firstly, the offence in question is a non- cognizable offence. Therefore, neither F.I.R. could have been registered, nor any further steps should have been taken by the local police. 14 wp228310 Secondly, before registration of F.I.R., in the fact situation of the present case, a preliminary inquiry was necessary. Thirdly, the complaint made by the private respondent is mala fide, frivolous and motivated. Fourthly, the Monitoring Committee for screening the complaint is constituted by the authorised officer, whose acts of commission and omission itself were to be inquired into by the Committee. It is argued that respondent No. 3, Assistant Commissioner of Police, played into the hands of respondent No. 4 (complainant). 13. Revering back to the first point that the offence complained of is a non-cognizable offence, reliance is placed on Section 16 of the Act, in particular sub-section (2) thereof. Section 16 reads thus:- “Punishment for contravention of provisions of this Act.- (1) Whoever contravenes any of the provisions of this Act shall be punishable,- (a) for the first offence, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both; (b) for every subsequent offence, with imprisonment for a term which may extend to five years and with fine which may extend to Rs. 5,000. 15 wp228310 (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the contravention of section 4-A shall be a cognizable offence under this section.” Going by Section 16(1)(b), as is applicable to the present case, it will have to be treated as a cognizable offence – as it is punishable by sentence up to five years. However, according to the learned counsel for the petitioners, sub-section (2) should be so construed to mean that all offences referred to in the Act of 1995 are non-cognizable offences, except the offence under Section 4A, which alone has been treated as cognizable offence under this Act. This argument deserves to be stated to be rejected. We shall deal with this a little later. 14. Reliance is also placed on Section18 of the Act, which reads thus:- “Cognizance of offences.- No Court shall take cognizance of any offence punishable under this Act except upon a complaint in writing made by any authorised officer.” Insofar as Section 18 is concerned, the same will have no bearing on the question whether the offence under the Act of 1995 should be treated as cognizable or non-cognizable offence. Section 18, however, is a 16 wp228310 provision requiring the Court to take cognizance of any offence punishable under the Act only upon a complaint in writing made by any authorised officer. That is a provision enabling the Court to take cognizance of offences under the Act of 1995. 15. Be that as it may, if the offence referred to in the written complaint is a cognizable offence, the officer in-charge of the police station was bound to reduce the information into writing as per the mandate of Section 154 of the Code. The provisions of the Act of 1995 would, however, require the authorised officer, in the present case, the Assistant Commissioner of Police, to investigate the matter, and if he desires to proceed further on the basis of information gathered by him, file a complaint in writing before the Court of competent jurisdiction. 16. The question whether the offences under the Act of 1995 are cognizable or non-cognizable, as the case may be, will have to be examined from the other provisions of the Act of 1995. However, except Section 16, there is no other provision which would throw light on this aspect. Insofar as Section 16(2) is concerned, in our opinion, it is a non- obstante provision whereby offence or contravention under Section 4A of the Act, which otherwise would have been a non-cognizable offence, 17 wp228310 has been treated as cognizable offence. The scheme as to the other offences under the Act of 1995, should be treated as cognizable offences or otherwise, will have to be, therefore, examined on the basis of the provisions of the Criminal Procedure Code. 17. Section 4 of the Code provides for trial of offences under the Indian Penal Code and other laws. The same reads thus:- “ Trial of offences under the Indian Penal Code and other laws.-- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” 18. Section 5 of the Code reads thus:- “Saving.-- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in fore, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. ” On plain reading of the above provisions, it would appear that, if the other laws such as the Act of 1995 do not expressly specify as to whether 18 wp228310 the offences provided therein are cognizable or non-cognizable, the provisions in the Code would apply. 19. Part II of Schedule I of the Code provides for classification of offences against other laws. The same reads thus:- “ II. CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS Offence Cognizable or non-cognizable Bailable or non- bailable By what Court triable If punishable with death, imprisonment for life, or imprisonment for more than 7 years If punishable with imprisonment for 3 years, and upwards but not more than 7 years If punishable with imprisonment for less than 3 years or with fine only. Cognizable Ditto Non-cognizable. Non-bailable. Ditto Bailable. Court of Session. Magistrate of the first class. Any Magistrate.” (emphasis supplied) 20. Applying the classification provided in the Code to the offences under the Act of 1995, in cases where the imprisonment would extend up to three years, the same would be non-cognizable offence. However, if the punishment with the imprisonment of three years and upwards, but not more than seven years, it will have to be treated as 19 wp228310 cognizable offence. Insofar as the first offence under the Act of 1995 referred to in Section 16(1)(a) is concerned, the same is punishable with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both. However, for every subsequent offence, by virtue of Section 16(1)(b), it would be punishable with imprisonment for a term which may extend to five