Navaniti Prasad Singh, J.:— The present application has been filed for quashing of the prosecution as instituted against the Petitioners who are the Producer, Director, Actors and otherwise associated with production of a T.V serial, in pursuant to an F.I.R registered against them being Patna, Kotwali Police Station Case No. 280 dated, 7th August, 2002. The case was registered by the police under Sections 153(A)/292/509/387/501/502/504/120(b)/34 of the Indian Penal Code. The informant Opposite Party No. 5 has appeared and has been heard.
2. The Petitioners have challenged that the prosecution is not maintainable, and is mala fide in law or even otherwise could not be at the instance of the informant. In view of the nature of allegation as made out, it is, further, submitted that the manner in which the F.I.R was registered and the subsequent conduct of both the Magistrate and the Police raises an apprehension that the prosecution is not for any legitimate grievance but for some other purpose and as such is an abuse of process of Court. The Petitioners, who are the accused persons are associated with producing and telecasting a T.V serial namely “Ram Khilawan C.M ‘N’ family”. The allegation as made in the First Information Report which is, Annexure-2, is as follows:
3. The Petitioner read in newspaper that on the evening of 5th August, 2002, a serial of the said name was to be telecasted in which photographs of the Actors as appearing in the serial show that they resembled former Chief Minister. Informant then saw the serial and in his opinion it was nothing but an attempt to defame and character assassination of the said person because of which there could be communal tension. On 6th August, 2002, he saw the serial again and to him it appeared that again the said person was characterized as abductor etc, as such, it was defamatory. The serial in opinion of the informant was degrading their Government and the family of the said person.
4. The informant then tried to contact the producer of the said serial on their phone on which the informant was disclosed that the serial was made under pressure to destabilize the government. When he made persistent calls not to televise the serial he was told not pursue the matter otherwise he would be liquidated.
5. The question is, do these allegations constitute any offence much less a cognizable offence authorizing Police to take up investigation.
6. It may be noted that the informant does not profess to be connected in any manner with the persons as allegedly depicted in the serial nor is he a part of the Government nor does he belongs to that caste.’
7. Another important aspect, I may mention that the F.I.R, is said to have been registered on 7th August, 2002 and was forwarded to the Court of Chief Judicial Magistrate, Patna, to be received by him on 8th. August, 2002, as would appear from the Order sheet appended as Annexure-3. Once the case was registered in the Court of C.J.M, Patna, on 8th August, 2002, itself, later, it appears ah application is filed by the Investigating Officer stating that all the accused persons with the intention of evading arrest are absconding and as such warrants be issued. Apparently, without application of mind, acting most mechanically the Chief Judicial Magistrate obliges and immediately issued nonbailable warrants of arrest against all the accused persons. He does not even care to notice that the F.I.R itself-was lodged at Patna in the afternoon of 7 of August 2002, against the accused persons who are all residents of another State (Maharashtra) and on 8th of August 2002, Police declares them absconder and seeks non bailable warrants. This, I have stated for two reasons. Firstly, because, it is well established by series of Judgments that Court cannot issue warrant of arrest in aid of prosecution ((2000) 10 SCC 438 : AIR 1997 SC 2494, 2003 (1) PLJR 350 and 2005 (3) PLJR 746) and secondly it is well establishedttiat justice must not only be done but seem to be done. Here, the manner in which the Police acted and the learned Chief Judicial Magistrate without application of mind obliged gives reason to people to talk that everything is not normal. It gives cause to complain of reasonable apprehension that people are likely to be victimized. At least it was expected of the learned Chief Judicial Magistrate to act judicially and impartially in the matter a”s the responsibilities are great on his shoulder and such mechanical action would erode the faith of people in judicial process. I say no more.’
8. Before proceeding further, I may usefully refer to the Judgment of Apex Court in the case of Ramesh v. Union of India since reported in (1988) 1 SCC 668 : AIR 1988 SC 775 and in particular para 13 of the said report. The case was dealing with banning of T.V serial “Tamas” as it allegedly created hatred amongst different sects of people. The Hon'ble Court said thus:
Vivian, Bose, J. as he then was in the Nagpur High Court in the case of Bhagwati Charan Shukla v. Provincial Government, AIR 1947 Nagpur 1 has indicated the yardstick by which this question has to be Judged. There atpage 18 of the report the Court observed that the effect of the words must be Judged from the standards of reasonable, strong-minded, firm and courageous men, and not-those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. This is our opinion, is the correct approach in judging the effect of exhibition of a film or of reading a book. It is the standard of ordinary reasonable man or as they say in English law “the man on the top of a clapham omnibus”.
9. Here, I would also like to observe that a creative artist is free to project the picture of society or the political system or the person in politics in the manner he perceives. They can make pungent political satire of political leaders or system subject of course to decency, morality and Public Order. Legitimate creation by a creative artist cannot be gagged or suppressed on the ground of intolerance of a section of super sensitive people not used to hearing descent. This is the essence of democracy and we profess to live in a democratic country. People and more so, Courts (including Judicial Magistrates) should realize this.
10. The allegations as noted above lack in material, factual averments constituting the offences as alleged. For example, Section 292 Indian Penal Code deals with obscenity. I fail to understand as to how on the allegations as made any offence of obscenity is made out. Similar is the case with regard to Section 509 Indian Penal Code which deals with insult to the modesty of a woman. There is no factual averment whatsoever with regards to obscenity or insult to modesty of a woman. Coming to Section 387 Indian Penal Code i.e extortion action.
11. I fail to understand how such an offence was registered. The only allegation about threat to life is when the informant alleges that when he repeatedly phoned he was asked not to phone again otherwise he would be liquidated. I fail to understand what offence this constitutes. Now, coming to Section 504 Indian Penal Code, again the facts constituting an offence are not there. How such an offence at all is made out is not understandable. Now, coming to Sections 501 and 502 Indian Penal Code, unfortunately, both these offences are non cognizable and in terms of Section 199 Criminal Procedure Code prosecution in this regard can only be by a person aggrieved by the defamatory statements. Surely, the informant is not the person defamed in any manner nor does he professed to have any authorization from persons sought to be allegedly defamed for taking up their battle. Now, coming to Section 153(A) of the Indian Penal Code, my answer to that would be as quoted above in the very beginning in the case decided by the Apex Court namely Ramesh v. Union of India (supra) and what I have said immediately thereafter. Moreover, apart from that, in terms of Section 196(1) of the Criminal Procedure Code sanction of State Government is necessary for such a prosecution. State has not agreed to pursue the matter in any manner as apparently the State was not never consulted. Yet, the Police took upon itself to obtain non bailable warrants to leave the question of sanction after-Petitioners were arrested with impunity and humiliated.
12. In my view, neither the Police nor the learned Magistrate at all applied their mind to these aspects and the F.I.R was registered and non bailable warrants mechanically issued which was all clearly an abuse of process of Court. I therefore, have no option but to quash the entire criminal proceedings initiated on basis of the F.I.R, in question, as being an abuse of process of Court.
13. The application is, thus, allowed.