IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR S. B. CRIMINAL MISC. PETITION NO. 753/1998 Shah Rukh Khan V The State of Rajasthan & Ors. Date of Judgment: 20th August, 2007. Hon’ble Mr. Justice R. S. Chauhan Mr. Maneesh Sharma, for the Petitioner Mr. B. K. Sharma, Public Prosecutor for the State Mr. Lokesh Sharma, for the Respondents Nos. 2 to 7. (Per Court): REPORTABLE A dialogue spoken in a courtroom scene of the movie Ram Jaane has, ironically, brought its protagonist, Shah Rukh Khan, a popular Bollywood thespian, as a Petitioner to this Court. The Petitioner has challenged the order, dated 28-1- 1998, passed by the Additional Chief Judicial Magistrate No. 1, Kota, whereby the learned Magistrate had rejected the Petitioner’s application, filed under Section 245 (2) of the Criminal Procedure Code (‘the Code’, for short), for discharge from the criminal offences allegedly committed by him. In a nutshell, the facts of the case are that, in 1996, under the direction of Mr. Rajiv Mehra, a Hindi film Ram Jaane was released for public viewing after due certification by the Central Board of Certification (‘the Board’, for short). The Petitioner played the role of the protagonist in the film. In the later part of the film, the hero is tried for triple murders. In the courtroom scene, the defense lawyer gets up to defend the hero who is, however, bent upon confessing his crime. He, therefore, questions the conduct of the lawyer and says: यहवकीलअच् छीतरहसेजानताहैिकअपुनउनतीनलोगों कोमाराहैलेिकनिफरभीअपुनकोकोिशशकरताहै।काहे को।है। पैसेकाखाितरनहीं। पैसेकीखाितरयेअपनाईमानबेचताहै। कानूनबेचताहै।ऐऐऐकानूनबेचबेचकेतुमलोगिजन् दगी कोसजाबनाडालाहैरे। (This lawyer well knows that I have killed the three persons, yet he tries to save me. Why? For the sake of money, no? For the sake of money, he sells his morals. He sells the laws. By selling the laws, you people have turned life into a misery.) (English translation of the Hindi dialogue) According to the respondents Nos. 2 to 7, the said movie was released in Kota as well. When they went to see the movie, they found the above-noted dialogue as defamatory against the community of lawyers practicing in India. They claim that because of the said dialogue, the respondents were subjected to ridicule and anger from those who were sitting in the movie theater. They also allege that their neighbours ridiculed them as well. Hence, the respondents Nos. 2 to 7 filed a criminal complaint against Mr. Shah Rukh Khan (the Petitioner), Mr. Rajiv Mehra (the director), Mr. Pravesh Mehra (the producer), Mr. ShriKant Sharma (the co-scriptwriter), Ms. Juhi Chawla (the heroine), and M/s Vinayak Film Industries (the distributors in Rajasthan), and M/s Unkown Distributors (distributors for India) alleging defamation and criminal conspiracy, offences under Sections 500, 501 and 120-B of the Indian Penal Code (‘IPC’, for short), before the Additional Chief Judicial Magistrate, No. 1, Kota. On 20-1-1996, the learned Magistrate recorded the statements of the Complainants under Section 200 of the Code. Vide his order dated 22-1-1996, the learned Magistrate took cognizance of offences under the aforementioned provisions of IPC. The Petitioner challenged the cognizance order before this Court, by filing a Miscellaneous Petition, registered as S. B. Criminal Misc. Petition No. 443/1996. However, vide order dated 2-5-1997, this Court, while disposing of the said petition, directed the Petitioner to file before the learned Magistrate, within a period of one month, an application, under Section 245 (2) of the Code, for discharging him. Since the said application could not be filed within the stipulated period, the said period was extended by another six months. Thereupon, on 13-4- 1998, the petitioner filed the said application before the learned Magistrate. But, vide his order 29-4-1998, the learned Magistrate dismissed the said application. Hence, this petition before this Court. Mr. Maneesh Sharma, the learned counsel for the Petitioner, has raised a number of contentions before this court: Firstly, that the learned Magistrate has not appreciated the scope and ambit of Section 245 (2) of the Code. In deliberating whether to discharge the accused person, the learned court should have considered the existence of the ingredients of the offence. In the present case, the learned Magistrate has ignored the fact that the essential ingredients of the offence of defamation are non-existent here. The offence of defamation, like any other, requires an element of intention. But in a dramatic situation, when an actor speaks out a dialogue according to the script and under a direction, the actor can not be said to be speaking in his own capacity. He is merely parroting an imaginary character. Moreover, the learned trial court should have also examined if there were any legal bars or impediments, which created hurdles for the continuation of the trial. The learned court has failed to examine this aspect of the case, according to the learned counsel. Secondly, although according to Section 499, Explanation (2) IPC, the offence of defamation can be committed against a company, or ‘a collection of persons’, such a ‘collection of persons’ has to be identifiable, specific, and definite. The offence cannot be committed against a class, the identity of whose members remains general and unspecific. Thirdly, Section 199 of the Code deals with prosecution for defamation. It imposes a bar on the power of the court to take cognizance except upon a complaint made by some person aggrieved by the offence. Section 199 (6) permits the person, against whom the offence is alleged to have been committed, to make a complaint in respect of that offence. But, the complainant has to show that he was the target of defamation. According to the learned counsel, such a complaint from a member of an indefinite class of persons is non- maintainable. In order to buttress his contention, the learned counsel has relied upon the case of G. Narasimhan & Ors v T. V. Chokkappa (1972) 2 Supreme Court Cases 680. Fourthly, Section 79 IPC creates an exception in favor of the Petitioner. The learned Magistrate has failed to recognize the benefit of Section 79 IPC available to the Petitioner. Fifthly, once the Board certifies the film for public viewing, the producer, the director, the actor, the actress, and others associated with the film are protected from prosecution under Section 5 A of the Cinematograph Act, 1952 (‘the Act of 1952’, for short). In order to support this contention, the learned counsel has relied upon the case of Raj Kapoor v Laxman (AIR 1980 SC 605). Sixthly, creative works like a film, a play, a book are the artist’s prized speech and expression. Art. 19 (1) of the Constitution has always protected such speech and expression. Hence, what is sanctioned by the Constitution cannot be deemed an offence under the penal law. Lastly, a similar complaint was filed in Ajmer. However, the learned trial court at Ajmer had dismissed the case. The continuation of criminal proceedings, thereafter, would be tantamount to an abuse of the process of the court. On the other hand, Mr. Lokesh Sharma, the learned counsel for the Respondents Nos. 2 to 7, has raised the following contentions: Firstly, while dealing with an application under Section 245 (2) of the Code, the learned trial court can not meticulously examine the evidence to see if the accused person should be discharged or not. Secondly, the dialogue spoken by the petitioner is per se defamatory in nature. It is a dialogue, which harms the reputation of the lawyers in the country. Thus, the essential ingredients of defamation, as defined in Section 499 IPC, do exist. Hence, the offence is punishable under Section 500 IPC. Thirdly, it is not essential that defamation should be with regard to a particular individual; it can be against a class. Lawyers as a class are identifiable. Hence, the complaint is maintainable against the petitioner. To support this contention, the learned counsel has relied upon the case of Sahib Singh Mehra v State of U.P. (1965) 2 SCR 828. Fourthly, at the initial stage of the trial, the benefit of Section 79 IPC cannot be given. Fifthly, the protection under Section 5A of the Act of 1952 is available only for “obscenity” in a film, and not against an allegation of defamation. Moreover, the certificate issued by the Board is not conclusive. Hence, the certification does not protect the petitioner against prosecution. In order to support this contention, the learned counsel has relied upon the case of Raj Kapoor & Ors v State (Delhi Administration) & Ors, AIR 1980 SC 258. Sixthly, the Fundamental Rights under Art. 19 (1) of the Constitution are not absolute. They can be restricted and have been restricted by Art. 19 (2) to (6) of the Constitution of India. Defamation is one of the grounds which circumscribe the Fundamental Rights under Art. 19 (1) of the Constitution of India. Hence, the protection of Art. 19 (1) (a) is unavailable to the petitioner. Lastly, the criminal court is unconcerned with the constitutional protection as Criminal law and Constitutional law are two separate branches of law. Mr. B. K. Sharma, the learned Public Prosecutor, has echoed Mr. Lokesh Sharma’s arguments. This Court has heard the learned counsels for the parties, has examined the record of the case, has perused the impugned order and has gone through the script of the movie, Ram Jaane, which was placed by the counsel for the Petitioner. This case raises such vital issues of Criminal and Constitutional law as the following: What is the scope and ambit of Section 245 (2) of the Code? What are the essential ingredients of defamation? Can a member of an indefinite class file a complaint for defamation? Can the benefit of Section 79 of IPC be given to an accused at the initial stage of the criminal proceeding? Is the protection of Section 5A of the Act of 1952 available to persons involved with the making of a movie in a case for defamation? Or, is the said protection available only in case of “obscenity” in the movie? Should the learned trial court have looked into the constitutional scheme to see if the act complained of is protected under the Constitution of India? Does Art. 19 (1) of the Constitution of India protect works of art as well? What are the limits of that protection? What would be the consequence to the life of our democracy if works of art were left unprotected? In order to understand the scope of Section 245 (2) of the Code, it is imperative to consider together the Sections 244 and 245 of the Code. Section 244 of the Code is as under: Section 244: Evidence for Prosecution: 1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. 2) The Magistrate may, on the application of the prosecution, issue summons to any of its witnesses directing him to attend or to produce any document or other thing. Section 245. When accused shall be discharged: 1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if un- rebutted, would warrant his conviction, the Magistrate shall discharge him. 2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. An analysis of these provisions clearly reveals that when a warrant case is instituted otherwise than on a police report, the Magistrate shall first proceed to hear the prosecution and to take all such evidence to be produced by the prosecution. According to Section 245 (1), if, after taking such prosecution evidence, the Magistrate considers that no case is made out against the accused, he shall discharge the accused. But, the Magistrate should record reasons for such discharging. However, under Section 245 (2) even prior to recording the evidence of the prosecution, the accused may appear before the Magistrate and argue for his discharge. Under Section 245 (2) of the Code, if the Magistrate considers the charge to be groundless, he may discharge the accused. The sub-section uses the word “considers”. The said word implies that the Magistrate must take into account the contentions of the accused. Although at the initial stage the Magistrate cannot meticulously examine the evidence produced by the accused, the Magistrate should examine if the essential ingredients of the offence are made out, if the cognizance has been taken legally, if there is any legal impediment to the framing of charge, or to the continuation of the trial. Section 245 (2) is not only a mandatory provision, it also requires the Magistrate to apply his mind judiciously. The power under Section 245 (2) is a vast power, which, after examining the facts of the particular case and after determining the law applicable in the case, must be exercised very judiciously. The power under Section 245 (2) of the Code is akin to the power of the Magistrate under Section 227 of the Code. It would, therefore, be useful here to consider the interpretation of Section 227 of the Code. In dealing with the ambit and scope of Sections 227 and 228 of the Code, in the case of Union of India v Prafulla Kumar Samal & Ano (1979) 3 SCC 4, the Apex Court observed thus: 1) The Judge, while considering the question of framing of charges under Section 227 of the Code, has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. 2) Where the materials placed before the Court disclose grave suspicion against the accused, which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. 3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. 4) That in exercising his jurisdiction under Section 227 of the Code, the Judge, who under the present Code is a senior and experienced court, cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case, and so on. This, however, does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting the trial. The Hon’ble Supreme Court has expressed similar views in the case of Dilawar Balu Kurane v State of Maharashtra 2002 WLC (SC) (Cri) 182. Hence, while considering the issue of discharging the accused person, the learned trial court should determine whether a strong suspicion is created against the accused person or not. Secondly, it must examine if there are any legal infirmities or hindrances in framing the charge against the accused person. However, as will be discussed hereinafter, the learned Magistrate has failed to consider these aspects of the case while passing the impugned order. Hence, the learned Magistrate has failed to consider the scope and ambit of the jurisdiction vested under Section 245(2) of the Code. Defamation has a long history in Common Law. In law, “every person is entitled to his good name and to the esteem in which he is held by others, and has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without lawful justification or excuse.” (Halsbury’s Laws of England, Vol. 28, Fourth Edition, p. 3). “A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to disparage him in his office, profession, calling, trade or business.” (Ibid, 9) In England, defamation is covered both under the law of torts and the criminal law. In torts, it is divided into two categories: It is ‘libel’ if the statement is made or conveyed by written or printed words or in some other permanent form, published of and concerning the plaintiff to a person other than the plaintiff. It is “slander” if the statement is oral, or in some other transient form. Both in England and in India, defamation is also covered by the criminal law. Section 499 of IPC defines “defamation” as under: “499. Defamation: Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. Explanation 1. It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2. It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3. An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4. No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. First Exception – Imputation of truth which public good requires to be made or published. – It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. Second Exception – Public conduct of public servants. – It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and not further. Third Exception – Conduct of any person touching any public question. – It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. Fourth Exception – Publication of reports of proceedings of Courts. – It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. Explanation. – A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section. Fifth Exception – Merits of case decided in Court or conduct of witnesses and others concerned. – It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. Sixth Exception – Merits of public performance. – It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. Seventh Exception – Censure passed in good faith by person having lawful authority over another. – It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful conduct made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. Eight Exception – Accusation preferred in good faith to authorised person. – It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. Ninth Exception – Imputation made in good faith by person for protection of his or other’s interests. – It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. Tenth Exception – Caution intended for good of person to whom conveyed or for public good. – it is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good. The offence of defamation, thus, consists of three essential ingredients, namely, 1) making or publishing any imputation concerning any person, 2) such imputations must have been made by words either spoken or intended to be read or by signs or by visible representations and (3) the said imputation must have been made with the intention to harm or with knowledge or having reason to believe that it will harm the reputation of the person concerned. Therefore, the intention to cause harm is a sine qua non of the offence under Section 499 IPC. According to the learned counsel for the Petitioner the element of intention is conspicuously missing from this case. There is force in this argument. For, when a person “acts as a character”, the actor is not portraying himself but is portraying an imaginary entity—the character of the story. Indeed, his speech, his expression, his body language—the entire expressive apparatus--is employed to conjure up the personality conceived by someone else. At that moment, the actor is not himself, but is another person. Hence, when he delivers a dialogue, he is not expressing his own thoughts, but of a character. Substituting for a fictional character, he utters the dialogue required by the story. Obviously, in mimicking a fictional character, the actor’s personal “intention” has no place. The testimony of John Keats, one of the greats among the Romantic poets, is so pertinent here. In defining the persona of a poet (and the actor’s is no different), he wrote to Richard Woodhouse on October 27, 1818: “As to the poetical character itself . . . it has no ‘self’—it is everything and nothing. . . . It has as much delight in conceiving an Iago as an Imogen.” An actor, like a poet, is always assuming, and impersonating, others’ lives. And it is only by abandoning his personal ego and intention, that he can successfully do so. An actor’s skilful execution of a role represents his personal craft,