Kerala High Court

Biju C.K vs State Of Kerala on 25 August, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MRS. JUSTICE SHIRCY V.
     WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
                         WP(C) NO. 1197 OF 2021
PETITIONER:

              BIJU C.K
              AGED 46 YEARS
              S/O.(LATE)KOCHUNARAYANAN,CHENTHUNATHY
              VILLAGE,MALA.PALLIPPURAM(P.O),THRISSUR DT,
              PIN-680732.

              BY ADV MRINUAAL



RESPONDENTS:

    1         STATE OF KERALA
              REPRESENTED BY SECRETARY HOME DEPARTMENT,
              GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM,
              PIN-695001.

    2         THE STATION HOUSE OFFICER,
              CHALAKUDY POLICE STATION,
              THRISSUR DT,PIN-680732. (CORRECTED)


              R2. THE STATION HOUSE OFFICER, MALA POLICE STATION,
              THRISSUR DISTRICT, PIN - 680 732.

              (ADDRESS OF 2ND RESPONDENT IS CORRECTED AS PER ORDER
              DATED 26/2/2021 IN I.A.NO.1/2021 IN WP(C)1197/2021.)

    3         ADDL.R3. KERALA FILM CHAMBER OF COMMERCE
              NEAR SHENOYS THEATRE, M.G.ROAD, ERNAKULAM, PIN - 682
              011. REPRESENTED BY ITS GENERAL SECRETARY.


              (ADDL.R3 IS IMPLEADED AS PER ORDER DATED 07.04.2021 IN
              I.A.NO.3/2021 IN WP(C)NO.1197/2021.)

              BY ADV S.SUJIN



OTHER PRESENT:
 WPC.1197/2021
                                  2

            C.N.PRABHAKARAN- SR.P.P




    THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.07.2021, THE COURT ON 25.08.2021 DELIVERED THE FOLLOWING:
 WPC.1197/2021
                                         3




                                   JUDGMENT

DATED THIS THE 25TH DAY OF AUGUST, 2021

The petitioner has filed this petition under

Article 226 of the Constitution of India seeking the

following reliefs:

1. To issue a writ of mandamus or any other direction or order which directing or commanding the 2nd respondent to issue Police Clearance Certificate to the petitioner to present before Film Chamber of Commerce, Kerala.

2. Issue such other further reliefs as necessary in the interest of justice.

2. Heard the learned counsel for the

petitioner, the learned counsel for the 3rd

respondent and the learned Government Pleader.

3. The case of the petitioner is that he

had purchased the production of a film by name "Oru

Rathri" which was initially produced by one

Sreedharan Bhattathiri, on executing an agreement on WPC.1197/2021

13.01.2020. The agreement includes registration of

the film, script, dialogue etc. of the film before

the Film Chamber of Commerce. But, the 2nd

respondent, who is the Station House Officer of

Chalakudy Police Station has failed to issue police

clearance certificate alleging that the petitioner

has been booked in a crime for having committed rape

of a 46 year old lady. The said complaint was

registered as Crime No.91 of 2019 before Chalakudy

Police Station. When he approached the Court

apprehending arrest in the falsely implicated case,

he was granted bail as per Ext.P2 order. Thereafter,

the 2nd respondent filed the final report before

the Judicial First Class Magistrate, Chalakudy and

the case is now pending as S.C. No. 681 of 2019

before the Additional Sessions Court, Irinjalakuda.

Because of the pendency of the case, the 2nd

respondent has failed to issue the police clearance

certificate which is to be produced before the Film

Chamber of Commerce to get ultimate signal for WPC.1197/2021

releasing the film. He had already spent huge amount

by entering into the agreement and for the works

related to the studio works. But violative of

Article 21 of the Constitution of India, the 2nd

respondent failed to issue the certificate and hence

this Writ Petition.

4. The second respondent, the SHO

Chalakudy, has not filed any statement in this Writ

Petition. But the 3rd respondent, who was impleaded

subsequently, has filed a written statement by way

of a counter affidavit stating that the Film Chamber

of Commerce represents all the institutions,

organizations and various other personnel. The main

object is to look after the welfare of all such

persons or class of persons who are engaged in

production, distribution, exhibition and other

branches of the industry of India and for safe

guarding the rights, titles, trademarks, trade

names, and copyright. In fact, this respondent had

received an application of a firm namely M/s. WPC.1197/2021

Perikamana Brothers Cinema by Sreedharan Bhattathiri

as the Proprietor of the firm and it was registered

on 22.08.2019 following the procedure for the

registration of the film "Oru Rathri". The 3rd

respondent came to know about the involvement of the

petitioner only on receipt of the notice in this

Writ Petition. Sreedharan Bhattathiri who registered

the film had passed away about two months back.

5. The petitioner is claiming rights over

the film by name "Oru Rarthri" on the basis of an

agreement executed between him and Sreedharan

Bhattathiri. Ext. P1 is the copy of the said

agreement. The only question to be looked into is

whether any direction has to be given to the 2 nd

respondent, SHO Chalakudy, to issue police clearance

certificate to the petitioner. According to the

petitioner, the said certificate is required to be

produced before the Kerala Film Chamber of Commerce.

But at the outset, it is to be noted that the 3rd

respondent has no case that such a demand was made WPC.1197/2021

by it to the petitioner to produce police clearance

certificate. Moreover, the statement of the 3rd

respondent would indicate that the film "Oru Rathri"

was registered by Sreedharan Bhattathiri and there

is no indication that the petitioner has approached

the Film Chamber of Commerce for registration of the

said film in his favour. But the crucial question to

be decided is whether the petitioner is entitled to

get a police clearance certificate as sought for by

him.

6. Section 59 of the Kerala Police Act,

2011(for short the Act) deals with the provision for

issuance of police clearance certificate. For the

sake of convenience Section 59 of the Act is

reiterated here under:

"59. Police to give certificates of non-involvement in offences.- The District Police Chief or the Station House Officer may, on the application of any person, give a certificate to the effect that such person is not involved in any offence after suitable enquiries and after realising such charges as may be fixed by the Government in this regard."

WPC.1197/2021

From a reading of this provision it is explicitly

clear that a certificate will be issued to a person

only if he is not involved in any offence after

suitable inquiry. So, it indicates that if a person

is involved in any criminal offence, such a

certificate cannot be issued. The certificate is to

be issued to the effect that the applicant is not

involved in any offence and that too will be after

suitable inquiry and after realizing charges as may

be fixed by the Government. Here, admittedly, the

petitioner is the accused in S.C. No. 681 of 2019

on the file of the Additional Sessions Court,

Irinjalakuda registered for the offences punishable

under Sections 376 and 420 of Indian Penal Code.

Ext. P3 would show that he has approached this Court

with an application for bail apprehending arrest and

that has been granted by this Court. According to

the petitioner he has been falsely implicated in

this case. But it is clear that he is the accused in

S.C. No. 681 of 2019 arising from Crime No. 91 of WPC.1197/2021

2019. So, he is involved in a case pending before

the Additional Sessions Court, Irinjalakuda. It is

well settled that an accused is presumed to be

innocent unless proved beyond a reasonable doubt.

Whether he is falsely implicated or not, are not

matters for consideration in this writ petition.

Section 59 of the Kerla Police Act mandates to give

certificates of non- involvement in criminal cases.

So, it could be seen that right now the petitioner

is not entitled to get a police clearance

certificate to the effect that he is not involved in

any offence. But here, the argument projected by the

petitioner is that just because of the failure to

issue police clearance certificate, he is unable to

release the film which he purchased as per Ext. P1.

As mentioned earlier, the 3rd respondent has no case

that there was such a demand and the Film Chamber

of Commerce has not raised a contention that it is

entitled to ask for such a certificate from a

producer who purchased a film and submitted for WPC.1197/2021

registration. Here, such a situation is also not

there as no document has been produced by the

petitioner to the effect that he has approached the

Film Chamber of Commerce with a request or the Film

Chamber of Commerce has demanded for such a

certificate. However, as this petitioner is involved

in a criminal case, the 2nd respondent is unable to

issue a certificate to the effect that he is not

involved in any offence as contemplated under

Section 59 of the Kerala Police Act. The Film

Chamber of Commerce has not raised a contention

that a police clearance certificate is required for

registration of a film and hence it is not

necessary to probe into those details. More over

Article 21 of the Constitution of India mandates

that no one shall be deprived of his life or

personal liberty except according to a procedure

established by law. In Board of Trustees of the

Port of Bombay v. Dilipkumar Raghavendranath

Nadkarni (AIR 1983 SC 109), the Apex Court held as WPC.1197/2021

follows:

"The expression 'life' does not merely connote animal existence or a continued drudgery through life. The expression 'life' has a much wider meaning."

Therefore, the Supreme Court took the view that the

Right to life guaranteed by Article 21 includes

'the right to livelihood' also.

7. As a citizen of India, the petitioner is

entitled to engage in any job for his livelihood.

One can make his life meaningful and beautiful by

engaging with any job to his satisfaction which is

not forbidden by law as enshrined under Article 21

of the Constitution of India. But here there are no

records available to show that he has approached the

Film Chamber of Commerce for registration of the

film and such an unjust or unreasonable demand has