A poster of a film showed a naked woman, Film duly certified by - Film Censor Board - Despite the issue of certificate accused still can be punished if there was positive evidence against him

Cinematograph Act, 1952 Section 5A The Film Censor Board acting under Section 5A of the Cinematographic Act 1952 entrusted to protect the silver screen pictures which offensively invade into public morals through over-sex- (1) Decision Censor Board is important and not infallible in its verdict - Even then the Court is not barred from trying the case because the certificate is not conclusive - However, the magistrate shall not brush aside opinion what another tribunal has for similar purpose, found.

 GeekUpd8 Doc Id # 707638
P.P. Haris Versus The S.I. of Police, Thalassery, (Kerala)

KERALA HIGH COURT

Before:- P.D. Rajan, J.
Crl. Rev. Pet. No. 1489 of 2005. D/d. 28.9.2016.

P.P. Haris, S/o. P.V. Basheer - Petitioner
Versus
The S.I. of Police, Thalassery - Respondent

For the Petitioner :- Sri. T.G. Rajendran, Advocate.
For the Respondent :- Sri. D. Chandrasenan, Public Prosecutor.

ORDER
P.D. Rajan, J. - This revision petition is preferred by the 2nd accused against the judgment in Crl.Appeal No.190/2000 of Sessions Judge, Thalassery. Four persons were charge sheeted in C.C. No.690/1999 by the Additional Chief Judicial Magistrate, Thlassery under section 3 and 6 of Indecent Representation of Women (Prohibition) Act, 1986 (hereinafter referred to as the 'Act'). The learned Magistrate convicted the 2nd accused under section 3 and 6 of the Act and sentenced to simple imprisonment for three months and fine of L 2000/-, in default simple imprisonment for two months and acquitted A1, A3 and A4 thereunder. Against that, the 2nd accused preferred the above criminal appeal before Sessions Court, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition.
2. The charge against the accused is that on 29.3.1997 while Circle Inspector of Police and his party were conducting patrol duty, they found a cinema poster of an English film 'Return to Moon Junction', which was inscribed "4 shows in 'Liberty' from 28 onwards". The cinema poster exhibiting the figure of a naked woman was intended to depict a woman indecently and to denigrate public morality. Hence, he seized the poster and registered a case under section 3 and 6 of the Act. During trial, prosecution examined PW1 to PW8 and marked Exts.P1 to P12. The seized posters were produced in the trial Court but not marked. The incriminating circumstances brought out in evidence were denied by the accused while questioning them, but they did not adduce any defence evidence.
3. The learned counsel appearing for the revision petitioner contended that film was duly certified by the Censor Board under Part II of Cinematograph Act 1952, therefore, Section 3 and 6 of the Act are not applicable in this case. The seized poster was not marked in evidence in the trial Court, which shows that no such indecent representation of woman was found in the poster.
4. But, the learned Public Prosecutor submitted that the picture of a man caressing the breast of a naked lady itself was shown in a picture, which contained indecent representation of women.
5. According to Section 2(c) of the Act, "Indecent representation of women" means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals. The oral evidence of PW3, C.I. of Thalassery shows that on 29.3.1997 at 12.30 noon, he was conducting patrol duty, at that time he found a cinema poster on the eastern wall of Prabha Talkies of Chirakkara, in which there was picture of a man caressing the bare breast of a lady and as he felt that poster contained indecent representation of a woman so as to denigrate her, immediately, he seized that poster and proceeded to the Liberty theater, where he found similar posters, then proceeded to the office of the Liberty theater, after preparing a search memorandum, he conducted a search inside the office and seized three posters from there, and reaching at the Thalassery Police Station, registered a crime. Ext.P3 is the FIR, Ext.P2 is the search memo, Ext.P1 is the seizure mahazar, Ext.P4 is the seizure mahazar prepared for seizure of cinema posture and Ext.P5 is the search list. Ext.P6 is the Form provided under section 3(2) of the Act. PW1, Head Constable supported the evidence of PW3. PW8 is the Sub Inspector, who conducted investigation and laid charge in the trial Court. In this context, I have examined the evidence of PW6, P.A. to the Municipal Secretary, who produced Ext.P7. PW7 is the U.D. Clerk, who produced Ext.P8 licence issued in Form-E.
6. Section 4 of the Act reads as follows:
    "Prohibition of Publication or sending by post of books, pamphlets, etc., containing indecent representation of women.- No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlets, paper, slide film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form:
    Provided that nothing in this section shall apply to-
    (a) xxx xxxx
    (b) xxx xxx
    (c) any film in respect of which the provision of Part II of the Cinematograph Act, 1952 (37 of 1952) will be applicable."
At the outset I have verified whether the film was approved in Part II of Cinematograph Act 1952. Part II refers about Certification of Films for public exhibition by the Board of film Certification. If any person desiring to exhibit any film shall in the prescribed manner make an application to the Board for a certificate in respect thereof, and the Board may, after examining or having the film examined in the prescribed manner, grant certification of films under Section 3(4) of Part II of Cinematograph Act, 1952. The specific case of the C.I. was that the film was being shown in 'Liberty theatre'., but, no enquiry has been made by the investigating officer whether the seized material was part of the film, which was approved by Part II of Cinematograph Act, 1952. Part II of the Cinematographic Act 1952 (37 of 1952) relates to certification of films for public Exhibition covering Section 3 to 9. If such certification is given, proviso 4(c) of the Indecent Representation of Women (Prohibition) Act says that any film of which the provision of Part II of the Cinematographic Act 1952 for nothing under the Section will apply.
7. In short, Indecent representation of women means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals. But the concept obscenity and censor of film are different. Apex Court in KA. Abbas v. The Union of India [AIR 1971 SC 481] has considered the concept of obscenity and held as follows:
    "28. The divergence of opinion in recent years has been very deep. Censorship of press, art and literature is on the verge of extinction except in the ever shrinking area of obscenity. In the field of censorship of the motion picture there has been a tendency to apply the 'void for vagueness' doctrine evolved under the due process clause. Thus regulations containing such words as 'obscene', 'indecent', 'immoral', 'prejudicial to the best interests of people', 'tending to corrupt morals', 'harmful' were considered vague criteria. In Kingsley International Pictures Corporation v. Regents (1959) 360 U.S. 684, where the film Lady Chatterley's Lover was in question, certain opinions were expressed. These opinions formed the basis of the arguments on behalf of the petitioner. Justice Black considered that the court was the worst of Board Censors because they possessed no special expertise. Justice Frankfurter was of the opinion that legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what was permissible expression as well as what society might permissibly prohibit, always remembering that the widest scope for freedom was to be given to the adventurous and imaginative exercise of human spirit.......". 'Justice Douglas considered prior restraint as unconstitutional. According to him if a movie violated a valid law, the exhibitor could be prosecuted.
    But what appears to us to be the real flaw in the scheme of the directions is a total absence of any direction which would tend to preserve art and promote it. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and this appears to be completely forgotten. Artistic s well as inartistic presentations are treated alike and also what may be socially good and useful and what may not. In Ranjit D. Udeshi's case MANU/SC/0080/1964 : 1965 CrlJ 8 this court laid down certain principles on which the obscenity of a book was to be considered with a view to deciding whether the book should be allowed to circulate or withdrawn. Those principles apply mutatis muntandis to films and also other areas besides obscenity. The Khosla Committee also adopted them and recommended them for the guidance of the film censors. We may reproduce them here as summarized by the Khosla Committee:
    The Supreme Court laid down the following principles which must be carefully studied and applied by our censors when they have to deal with a film said to be objectionable on the ground of indecency or immorality:-
    (1) Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.
    (2) Comparison of one book with another to find the extent of permissible action is not necessary.
    (3) The delicate task deciding what is artistic and what is obscene has to be performed by courts and in the last resort, by the Supreme Court and so, oral evidence of men of literature or others on the question of obscenity is not relevant.
    (4) An overall view of the obscene matter in the setting of the whole work would of course be necessary but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall.
    (5) The interests of contemporary society and particularly the influence of the book etc., on it must not be overlooked.
    (6) Where obscenity and art are mixed, art must be so preponderating as to throw obscenity in shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked.
    (7) Treating with sex in a manner offensive to public decency or morality which are the words of our Fundamental Law judged by our national standards and considered likely to pender to lascivious, purient or sexually precocious minds must determine the result.
    (8) When there is propagation of ideas, opinions and informations or public interests or profits, the interests of society may tilt the scales in favour of free speech and expression. Thus books on medical science with intimate illustrations and photographs though in a sense immodest, are not to be considered obscene, but the same illustrations and photographs collected in a book from without the medical text would certainly be considered to be obscene.
    (9) Obscenity without a preponderating social purpose or profit cannot have the Constitutional protection of free speech or expression. Obscenity is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and decency.
    (10) Knowledge is not a part of the guilty act. The offender's knowledge of the obscenity of the book is not required under the law and it is a case of strict liability.
    Application of these principles does not seek to whittle down the fundamental right of free speech and expression beyond the limits permissible under our Constitution for however high or cherished that right it does not go to pervert or harm society and the line has to be drawn somewhere. As was observed in the same case:
    ..............The test which we evolve must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not .......
    A similar line has to be drawn in the case of every topic in films considered unsuitable for public exhibition or specially to children.
8. A creative exploration in the field of liberty of expression and the impact of certification under the Cinematographic Act has been discussed by the Apex Court in another decision in Raj Kapoor and ors v. State & ors[AIR 1980 SC 258] and it was held as follows:
    "13. The next point urged before us by Shri Iyengar is that once a certificate under the Cinematograph Act is granted, the homage to the law of morals is paid and the further challenge under the Penal Code is barred. Jurisprudentially speaking, law, in the sense of command to do or not to do, must be a reflection of the community's cultural norms, not the State's regimentation of aesthetic expression or artistic creation. Here we will realise the superior jurisprudent value of dharma, which is a beautiful blend of the sustaining sense or morality, right conduct, society's enlightened consensus and the binding force of norms so woven as against positive law in the Austinian sense, with an awesome halo and barren autonomy around the legislated text is fruitful area for creative exploration. But morals made to measure by statute and court is a risky operation with portentous impact on fundamental freedoms, and in our constitutional order the root principle is liberty of expression and its reasonable control with the limits of 'public order, decency or morality'. Here, social dynamics guides legal dynamics in the province of 'policing' art forms.
    14. It is deplorable that a power for good like the cinema, by a subtle process, and these days, by a ribald display, vulgarizes the public palate, pruriently infiltrates adolescent minds, commercially panders to the lascivious appetite of rendy crowds and inflames the lecherous craze of the people who succumb to the seduction of sex and resort, in actual life, to 'horror' crimes of venereal violence. The need to banish cinematographic pornos and the societal strategy in that behalf had led to the Cinematograph Act, 1952. The Censor Board, under this Act, is charged with power to direct doctoring, tailoring, sanitizing and even tabooing films so that noxious obscenity may not be foul and erotic aroma make mass appeal.
    15. I am satisfied that the Film Censor Board, acting under Section 5A, is specially entrusted to screen off the silver screen pictures which offensively invade or deprave public morals through over-sex. There is no doubt-and counsel on both sides agree that a certificate by a high-powered Board of Censors with specialised composition and statutory mandate is not a piece of utter inconsequence. It is relevant material, important in its impact, though not infallible in its verdict. But the Court is not barred from trying the case because the certificate is not conclusive. Nevertheless, the magistrate shall not brush aside what another tribunal has for similar purpose, found. May be, even a rebuttable presumption arises in favour of the statutory certificate but could be negatived by positive evidence. An act of recognition of moral worthiness by a statutory agency is not opinion evidence but an instance or transaction where the fact in issue has been asserted, recognised or affirmed.
    16. I am not persuaded that once a certificate under the Cinematorgraphy Act is issued the Penal Code, pro tanto, will hang limp. The Court will examine the film and judge whether its public display, in the given time and clime, so breaches public morals or depraves basic decency as to offend the penal provisions. Statutory expressions are not petrified by time but must be up- dated by changing ethos even as popular ethics escalates. Surely, the satwa of society must rise progressively if mankind is to move towards its timeless destiny and this can be guaranteed only if the ultimate value vision is rooted in the unchanging basics, Truth-Goodness-Beauty, Satyam, Sivam, Sundaram. The relation between Reality and Relativity must haunt the court's evaluation of obscenity, expressed in society's pervasive humanity, not law's penal prescriptions. Social scientists and spiritual scientists will broadly agree that man lives not alone by mystic, squints, ascetic chants and austere abnegation but by luscious love of Beauty, sensuous joy of companionship and moderate non-denial of normal demands of the flesh. Extremes and excesses boomerang although some crazy artists and film directors do practise Oscar Wilde's observation : "Moderation is a fatal thing. Nothing, succeeds like excess."
9. The law elicited in the above decision shows that the Film Censor Board, acting under Section 5A of the Cinematographic Act 1952 entrusted to protect the silver screen pictures which offensively invade into public morals through over-sex. Both sides agreed that a certificate issued by a high-powered Board of Censors with specialised composition and statutory command is not a piece of utter illogical. It is relevant that its decision is important and not infallible in its verdict. Even then the Court is not barred from trying the case because the certificate is not conclusive. However, the magistrate shall not brush aside opinion what another tribunal has for similar purpose, found. Even if a rebuttable presumption may arise in favour of the statutory certificate that could be negatived only with positive evidence. The recognition of moral standard by a statutory authority is not an opinion evidence but an action in which the fact in issue has been asserted, recognised or affirmed by that body. If that be the position, the proviso provided under section 4 (c) of the Indecent Representation of Women (Prohibition) Act says that nothing in the Section shall apply to any film in which the provisions of Part II of the Cinematographic Act and thus the Act 1952 (37 of 1952) will be applicable. In the absence of any positive evidence the conviction under section 3 and 6 of the Act is unsustainable in law.
10. However, the conviction and sentence passed by the Additional Chief Judicial Magistrate, Thalassery under section 3 and 6 of the Act are set aside and the accused is acquitted and set at liberty.
Crl. R.P. is allowed.
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