Mahesh Waman Manjrekar vs The State Of Maharashtra And Anr
2022 Latest Caselaw 2082 Bom

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          2022.03.01                                                                 13 WP.596.2022.doc
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                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CRIMINAL APPELLATE JURISDICTION

                                            WRIT PETITION NO. 596 OF 2022

                       Mahesh Waman Manjrekar                               ...Petitioner

                             Versus

                       The State of Maharashtra & Anr.                      ...Respondents

                                                        WITH
                                            WRIT PETITION NO. 604 OF 2022

                       Narendra Hirawat & Anr.                              ...Petitioners.

                                   Versus

                       The State of Maharashtra & Anr.                      ...Respondents

                                                      ****
                       Mr. Shirish Gupte, Sr. Advocate, a/w Mr. Harshad Bhadbhade a/w
                       Ms. Yashasvita Apte i/b Harshad Bhadbhade for the Petitioner in WP/
                       596/2022.
                       Mr. Aabad Ponda, Sr. Advocate a/w Mr. Swapnil Ambure, Mr.
                       Ravindra Suryawanshi, Mr. Arpit Choudhary and Mr. Archis Bhatt i/b
                       Bar and Brief Attorneys for Petitioner Nos. 1 and 2 in WP/604/2022.
                       Mr. Ashish Chavan a/w Mr. Jayesh Bhosle, Mr. Advait Helekar, Mr.
                       Prathamesh Gaikwad i/b Mr. Prakash Salsingkar for Respondent No.
                       2.
                       Ms. M. H. Mhatre, APP for Respondent No. 1-State in WP/596/2022.
                       Ms. S. D. Shinde, APP for Respondent No. 1-State in WP/604/2022.
                       Mr. Anil Phole, P.I. Mahim Police Station present.
                                                         ****
                                                  CORAM :       PRASANNA B. VARALE AND
                                                                SURENDRA P. TAVADE, JJ.

                                                  DATE    :     01st MARCH, 2022.

                       P.C. :




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.           Heard learned Senior Counsel appearing for Petitioners in both

petitions, learned Counsel for Respondent No. 2 and the learned APP

for Respondent No.1-State.

2. These are two petitions at the instance of Director and Producer

of the movie title as "Nay Varan Bhaat Loncha Kon Nay Konacha".

Respondent No. 2 had approached the learned Special Court by

submitting an application bearing Misc. Application No. 99 of 2022

raising the grievance in respect of trailer of the said movie displayed

on the social media platform and particularly on "YouTube".

3. The submission of Respondent No. 2 before the learned Special

Court was that the trailer contains sexually explicit contents involving

minors. It also displayed use of obscene abuses, violence, indecent

acts by minors and indecent representation of women. Now in the

very application Respondent No. 2 herself submits that the said trailer

is removed from YouTube, but is still available on the other online

platforms and is being circulated. The trailer is downloaded and a CD

containing the same, is fled along with complaint.

4. The learned Special Court by referring to the statement made in

the application allowed the application and directed Senior Police

Inspector of Mahim Police Station to investigate the case as per

Section 156(3) of the Code of Criminal Procedure and to take

appropriate action as per law.

5. Mr. Shirish Gupte, learned Senior Counsel for the Petitioner

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(Writ Petition No. 596 of 2022) vehemently submitted that the order

passed by the Special Court is nothing but the result of non-

application of the mind. Learned Counsel then invited our attention to

the statements made in the petition. It is stated in the grounds that the

trailer based on which the complaint is lodged is already withdrawn

and further the movie is already released. Petitioner further states in

the grounds that with an intention to show respect to the views

expressed by complainant's association, the Petitioner herein

immediately withdrew the said trailer though at the cost of repetition

the Petitioner wishes to place it on record that the contents of the

same were from the movie duly censored by the Censor Board. There

is another specifc statement made in the grounds and clause 'G'

which reads as " The Petitioner state that the movie does not contain

any porn or involves or depicts a child having any act which will fall

within the purview of POCSO Act."

6. The learned Counsel then submitted that apart from all the acts,

which have been undertaken by the Petitioner bonafdely, namely

removing of the trailer from the social media platform, categorical

statement before this Court is that the movie does not contain any

porn or involves or depicts a child having any act, which will fall within

the purview of POCSO Act. The ofence alleged against the Petitioner

provides the maximum punishment of seven years considering the

instances where the police authorities in an undue haste were taking

resort to an extreme action of efecting arrest. The Apex Court in the

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judgment of Arnesh Kumar V/s. State of Bihar and Another

{(2014) 8 SCC 273} recorded important observations, our attention is

invited to Paragraph Nos. 9 and 10 of the said judgment, read as

under:

"9. Another provision i.e. Section 41-A Cr.P.C. aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalised. Section 41-A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), which is relevant in the context reads as follows:

"41-A. Notice of appearance before police officer.- (1) The police ofcer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable ofence, to appear before him or at such other place as may be specifed in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the ofence referred to in the notice unless, for reasons to be recorded, the police ofcer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police ofcer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the ofence mentioned in the notice.À

The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41 (1) Cr.P.C., the police ofcer is required to issue notice directing the accused to appear before him at a specifed place and time. Law obliges such an accused to appear before the

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police ofcer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police ofcer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.P.C has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.

10. We are of the opinion that if the provisions of Section 41 Cr.P.C which authorises the police ofcer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police ofcers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasis that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.P.C. for efecting arrest be discouraged and discontinued.À

7. Learned Senior Counsel Mr. Shirish Gupte as well as learned

Senior Counsel Mr. Aabad Ponda appearing for the another

Petitioners i.e. Narendra Hirawat and Shreyans Hirawant (Writ

Petition No. 604 of 2022) submitted before this Court that Petitioners

are ready and willing to extend all the necessary cooperation to the

authorities of State of Maharashtra being law abiding citizens and the

only expectation of the Petitioners is that the authority would follow the

directions of the Apex Court in the judgment in letter and spirit. It is

submitted before this Court that the police authority of Mahim Police

Station, Mumbai, issued notice to one of the Petitioners i.e. Shreyans

Hirawant, but the said notice was not taking recourse inconsonance

with the observations in the judgment of Arnesh Kumar V/s. State of

Bihar & Another.

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8. Mr. Gupte and Mr. Ponda learned Senior Counsel submitted

that in view of the notice issued by Mahim Police Station, Petitioners

are carrying apprehension that the police authority may take certain

steps prejudicial to the interest of the Petitioners, hence, prayed for an

interim protection. It is further submitted that if the police authorities of

the State without following case of Arnesh Kumar, proceed against the

Petitioners and take some action in an undue haste, the entire attempt

of Petitioners approaching in this Court would be frustrated. Both the

learned Counsel submitted that the Respondent No. 2 herself submits

that the movie is now released in theaters after having the necessary

censor board certifcate.

9. On perusal of the material placed on record and on hearing the

learned Counsel appearing for the Petitioners, we deem it appropriate

to issue notice to the Respondents making the same returnable on

22nd March, 2022. The learned APP waives notice for the Respondent

No.1 -State in both the petitions.

10. Considering the facts, we are of the opinion that learned

Counsel for the Petitioners made out the case for an interim order.

Accordingly by way of the interim order, Respondent No. 1- State is

directed not to take any coercive step / action till next date.

11. The parties to act upon an authenticated copy of this order.

(SURENDRA P. TAVADE, J.) (PRASANNA B. VARALE, J.)

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