Judgment Case ID: 4140

Judgment:
N: Criminal Appeal No. 773 of 1979. Appeal by Special Leave from the Judgment and Order dated 13 8 1979 of the Madhya Pradesh High Court in Misc. Criminal Case No. 279/79. Mrs. K. Hingorani for the Appellant. The Judgment of the Court was delivered by KRISHNA IYER	 J. Sublime titles of cinematograph films may enchant or entice and only after entry into the theatre the intrinsic worth of the picture dawns on the viewer. The experience may transform because the picture is great or the audience may lose lucre and culture in the bargain. Mere titles may not	 therefore	 attest the noxious or noble content of the film. Sometimes the same film may produce contrary impacts and what one regards as lecherous	 another may consider elevating. Be that as it may a well published film Satyam	 Sivam	 Sundaram became 514 the subject matter of a prosecution presumably a pro bono publico proceeding	 by the respondent against the petitioner and others who are the producer	 actor	 photographer	 exhibitor and distributor of that film. The complaint alleged that the fascinating title was misleadingly foul and beguiled the guileless into degeneracy. If the gravamen of this accusation were true	 obscenity	 indecency and vice are writ large on the picture	 constituting an offence under section 292 I.P.C. The Magistrate	 after examining some witnesses	 took cognizance of the offence and issued notice to the accused. Thereupon	 the producer	 namely	 the present petitioner	 moved the High Court under section 482 Cr. P.C. on the score that the criminal proceeding was an abuse of the judicial process and engineered by ulterior considerations and that no prosecution could be legally sustained in the circumstances of the case	 the film having been duly certified for public show by the Board of Censors. The High Court	 however	 dismissed the petition	 ignoring the contention that the film had been given 'A ' certificate by the Central Board of Film Censors and finding in the prosecution nothing frivolous or vexatious nor any material to quash the proceedings. The aggrieved film producer has arrived in this Court hopefully	 and pressed before us one principal objection founded on section 79 I.P.C. to neutralise section 292 I.P.C. We do not find this contention apparent in the High Court 's judgment	 but since the facts are admitted and the question of law is of some moment	 we have chosen to hear the petitioner on the invalidatory plea that once a certificate sanctioning public exhibition of a film has been granted by the competent authority under the (for short	 the Act)	 there is a justification for its display thereafter	 and by virtue of the antidotal provisions in section 79 of the Penal Code	 the public exhibition	 circulation or distribution or the production of the film	 even if it be obscene	 lascivious or tending to deprave or corrupt public morals	 cannot be an offence	 section 292 I.P.C. notwithstanding. The absolution is based upon the combined operation of section 5A of the Act and section 79 of the Penal Code. The issue is of some importance since the cinema is one of the major mass media with millions of viewers and many millions in investment. The respondent complainant	 despite notice having been served on him	 did not enter appearance. We requested the Additional Solicitor General	 Shri Banerjee	 to help the court unravel the legal tangle and he responded promptly and eruditely rendered industrious assistance. We record our appreciation of the services of Shri Banerjee. The sole point for decision is the legal effect of the combined operation of section 5A of the Act and section 79 I.P.C. But we will assume for purposes of argument that the facts stated in the complaint prima facie 515 attract the offence under section 292 I.P.C. Supposing such film has been certified by the Central Board of Film Censors	 acting within their jurisdiction under the Act	 thereby sanctioning the public exhibition of the film	 does it furnish a justification in law in doing the act which	 in the absence of such certification	 may constitute an offence under section 292 I.P.C. ? Section 79 I.P.C. runs thus: 79. Nothing is an offence which is done by any person who is justified by law	 or who by reason of a mistake of fact and not by reason of a mistake of law in good faith	 believes himself to be justified by law	 in doing it. The argument is irresistible that if the performance of the act which constitutes the offence is justified by law	 i.e. by some other provision	 then section 79 exonerates the doer because the act ceases to be an offence. Likewise	 if the act were done by one "who by reason of a mistake of fact in good faith believes himself to be justified by law in doing it" then also	 the exception operates and the bona fide belief	 although mistaken	 eliminates the culpability. The resolution of the problem raised in this case thus becomes simplified. If the offender can irrefutably establish that he is actually justified by law in doing the act or	 alternatively	 that he entertained a mistake of fact and in good faith believed that he was justified by law in committing the act	 then	 the weapon of section 79 demolishes the prosecution. Does a certificate issued under section 5A(1A) of the Act amount to justification in law for public exhibition of the film	 be it obscene or not	 or	 at any rate	 does it generate a belief induced by a mistake of fact	 namely	 the issuance of the certificate and its effect that the certificate holder is justified by law in exhibiting the film ? We are thrown back upon a study of the anatomy of the and the efficacy of a certificate under section 5A as a justification within the meaning of section 79 of I.P.C. "Justified" according to Black 's Legal Dictionary means: Done on adequate reasons sufficiently supported by credible evidence	 when weighed by unprejudiced mind	 guided by common sense and by correct rules of law. The Shorter Oxford English Dictionary assigns this meaning for "justification". The showing in court that one had sufficient reason for doing that which i.e. is called to answer; the ground for such a plea. 516 Lexically	 the sense is clear. An act is justified by law if it is warranted	 validated and made blameless by law. Is a legal sanction permitting a thing a legal justification for doing it ? Maybe	 there is a fine semantic shade between mere legal sanction	 which is passive	 and clear legal justification which is active. For the work a day world of meanings	 between 'permissive ' and 'justificative ' 'thin partition do their bounds divide '. It is an antinomy to say that under section 5A(1A) of the Act the Board certifies a film as suitable for public exhibition and for section 292 I.P.C. to punish such exhibition unless the ground covered by the two laws be different. Although it may be plausible to say that what is merely certified as suitable for show by a law may not go the length of holding that it is justified by law. Such niceties need not deter us once we grasp the sweep of the . Indeed	 the Penal Code is general	 the is special. The scheme of the latter is deliberately drawn up to meet the explosively expanding cinema menace if it were not strictly policed. No doubt	 the cinema is a great instrument for public good if geared to social ends and can be a public curse if directed to anti social objectives. The freedom of expression	 the right to be equally treated and the guarantee of fair hearing before heavy investments in films are destroyed belong to Indian citizens under the Constitution. But all freedom is a promise	 not a menace and	 therefore	 is subject to socially necessary restraints permitted by the Constitution. Having regard to the instant appeal of the motion picture	 its versatility	 realism	 and its coordination of the visual and aural senses. what with the art of the cameraman with trick photography	 vistavision and three dimensional representation	 the celluloid art has greater capabilities of stirring up emotions and making powerful mental impact so much so the treatment of this form of art on a different footing with pre censorship may well be regarded as a valid classification	 as was held in K. A. Abbas. Maybe	 art cannot be imprisoned by the bureaucrat and aesthetics can be robbed of the glory and grace and free expression of the human spirit if governmental palate is to prescribe the permit for exhibition of artistic production in any department	 more so in cinema pictures. So it is that a special legislation viz. the Act of 1952	 sets up a Board of Censors of high calibre and expertise	 provides hearings	 appeals and ultimate judicial review	 pre censorship and conditional exhibitions and wealth of other policing strategies. In short	 a special machinery and processual justice and a host of wholesome restrictions to protect State and society are woven into the fabric of the Act. After 517 having elaborately enacted such a legislation can it be that a certificate granted under it by expert authority can be stultified by a simple prosecution of a shower of prosecutions for an offence under section 292 I.P.C.	 driving the producer to satisfy a 'lay ' magistrate that the certificate of the Board of Censors notwithstanding	 the film was offensive ? The Board under section 5B has to consider	 before certification	 all the points section 292 I.P.C. prescribes. Indeed	 neither the Penal Code nor the can go beyonds the restrictions sanctioned by of the Constitution and once the special law polices the area it is pro tanto out of bounds for the general law. At least as a matter of interpretation	 section 79 I.P.C. resolves the apparent conflict between section 292 I.P.C. and Part II of the Act relating to certification of films. If the Board blunders	 the Act provides remedies. We are sure the public spirited citizen may draw the attention of the agencies under the Act to protect public interest. The general issues of art and the role of the State have already been referred to by us in an earlier appeal from the Delhi High Court relating to the same film. There section 79 I.P.C. was not considered by us because the contention was not urged before us. The present decision will bind the court that hears that case. The position that emerges is this. Jurisprudentially viewed	 an act may be an offence	 definitionally speaking but; a forbidden act may not spell inevitable guilt if the law itself declares that in certain special circumstances it is not to be regarded as an offence. The chapter on General Exceptions operates in this province. Section 79 makes an offence a non offence. When ? Only when the offending act is actually justified by law or is bona fide believed by mistake of fact to be so justified. If	 as here	 the Board of Censors	 acting within their jurisdiction and on an application made and pursued in good faith	 sanctions the public exhibition	 the producer and connected agencies do enter the statutory harbour and are protected because section 79 exonerates them at least in view of their bona fide belief that the certificate is justificatory. Thus the trial court when it hears the case may be appropriately apprised of the certificate under the Act and	 in the light of our observations	 it fills the bill under section 79 it is right for the court to discharge the accused as the charge is groundless. In the present case	 the prosecution is unsustainable because section 79 is exculpatory when read with section 5A of the Act and the certificate issued thereunder. We quash the prosecution. Two things deserve mention before we close. Prosecutions like this one may well be symptomatic of public dissatisfaction with the Board of Censors not screening vicious films. The ultimate censo 518 rious power over the censors belongs to the people and by indifference	 laxity or abetment	 pictures which pollute public morals are liberally certificated	 the legislation	 meant by Parliament to protect people 's good morals	 may be sabotaged by statutory enemies within. Corruption at that level must be stamped out. And the Board	 alive to its public duty	 shall not play to the gallery; nor shall it restrain aesthetic expression and progressive art through obsolete norms and grandma inhibitions when the world is wheeling forward to glimpse the beauty of Creation in its myriad manifestations and liberal horizons. A happy balance is to ". consider	 on the one hand	 the number of readers they believe would tend to be depraved and corrupted by the book	 the strength of the tendency to deprave and corrupt	 and the nature of the depravity or corruption; on the other hand	 they should assess the strength of the literary	 sociological and ethical merit which they consider the book to possess. They should then weigh up all these factors and decide whether on balance the publication is proved to be justified as being for the public good. " Going to the basics	 freedom of expression is fundamental. The censor is not the moral tailor setting his own fashions but a statutory gendarme policing films under article 19(2) from the angle of public order	 decency or morality. These concepts are themselves dynamic and cannot be whittled down to stifle expression nor licentiously enlarged to promote a riot of sensual display. Anyway	 the appeal must succeed and we extinguish the prosecution by the order. N.V.K. Appeal allowed.

Summary:
Section 79 I.P.C. provides that nothing is an offence which is done by any person who is justified by law in doing it	 or	 who by reason of a mistake of fact in good faith	 believes himself to be justified by law	 in doing it. The respondent complainant alleged that the film Satyam Shivam Sundaram was by its fascinating title misleadingly foul and beguiled the guideless into degeneracy and that obscenity	 indecency and vice were writ large on the picture	 constituting an offence under section 292 I.P.C. The Magistrate after examining some witnesses	 took cognizance of the offence and issued notice to the appellant producer of the film. Thereupon the appellant moved the High Court under section 482 Cr. P.C. on the score that the criminal proceeding was an abuse of the judicial process and that no prosecution could be legally sustained as the film had been duly certified for public show by the Central Board of Film Censors. The High Court	 however dismissed the petition. In the appeal to this Court it was contended on behalf of the appellant that once a certificate sanctioning public exhibition of a film had been granted by the competent authority under the 	 there was a justification for its display thereafter	 and by virtue of the antidotal provisions in section 79 I.P.C.	 the public exhibition	 circulation or distribution of the film	 even if it be obscene	 lascivious or tending to deprave or corrupt public morals	 could not be an offence	 section 292 I.P.C. notwithstanding. Allowing the appeal	 ^ HELD: 1. The prosecution is unsustainable because section 79 I.P.C. is exculpatory when read with section 5 A of the and the certificate issued thereunder	 and is therefore quashed. [517 G] 2. It is an antinomy to say that under section 5A(1A) of the Act	 the Board certifies a film as suitable for public exhibition and for section 292 I.P.C. to punish such exhibition unless the ground covered by the two laws be different. [516 B] 3. The Penal Code is general	 the is special. The scheme of the latter is deliberately drawn up to meet the explosively expanding cinema menace if it were not strictly policed. The cinema is a great instrument for public good if geared to social ends and can be a public curse if directed to 513 anti social objectives. So the Act sets up a Board of Censors of high calibre and expertise	 provides hearings	 appeals and ultimate judicial review	 the precensorship and conditional exhibitions and other policing strategies to protect state and society. [516D; G H] 4. Neither the Penal Code nor the can go beyond the restrictions sanctioned by of the Constitution and once the special law polices the area it is pro tanto out of bounds for the general law. Section 79 I.P.C. resolves the apparent conflict between section 292 I.P.C. and part II of the Act relating to certification of films. If the Board blunders	 the Act provides remedies. [517 B C] 5. Jurisprudentially viewed	 an act may be an offence	 definitionally speaking; but a forbidden act may not spell inevitable guilt if the law itself declares that in certain special circumstances	 it is not to be regarded as an offence. The chapter on General Exceptions operates in this province. Section 79 makes an offence	 a non offence	 only when the offending act is actually justified by law or is bona fide believed by mistake of fact to be so justified. [517 E] 6. Once the Board of Censors	 acting within their jurisdiction and on an application made and pursued in good faith	 sanctions the public exhibition of a film	 the producer and connected agencies enter the statutory harbour and are protected because section 79 exonerates them in view of the bona fide belief that the certificate is justificatory. [517 F] 7. Freedom of expression is fundamental. The Censor is not the moral tailor setting his own fashions but a statutory gendarme policing films under Article 19(2) from the angle of public order	 decency or morality concepts themselves dynamic	 and which cannot be whittled down to strifle expression nor licentiously enlarged to promote a riot of sexual display. [518 E] K. A. Abbas vs The Union of India & Anr. ; ; referred to