Akshay Kumar vs State Of Raj And Anr
2021 Latest Caselaw 3424 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

       S.B. Criminal Miscellaneous (Petition) No. 6165/2017

Akshay Kumar Actor, Movie Jolly L.L.B.-2 S/o Shri Hari Om
Bhatia, R/o 203, Wing Lakhandwala Complex, Juhu, Mumbai,
Present R/o 201, Prime Beach, Gandhi Gram Road, Juhu
Mumbai-400049.
                                                                     ----Petitioner
                                       Versus
1.      State of Rajasthan, through P.P.
2.      Tikam Chand Sharma S/o Shri Gyarsi Ram Sharma, R/o
        Plot No. 21, Gopi Nagar, Near Sangam Cinema, Sanganer,
        Jaipur, Rajasthan.
                                                                  ----Respondents

For Petitioner(s) : Mr. Rajendra Prasad, Senior Counsel with Ms. Purvi Mathur Mr. Kushagra Sharma Mr. Nitin Sharma, through VC Mr. Sumant Narang For Respondent(s) : Mr. Shyam Prakash Sharma, PP Mr. Y.V. Nandwana Mr. Nikhil Sharma Mr. Abhishek Sharma Mr. R.S. Solanki for Mr. Rajesh Goswami

HON'BLE MR. JUSTICE SATISH KUMAR SHARMA

Order

04/08/2021

1. This Petition has been filed under Section 482 Cr.P.C. against

the order dated 6-2-2017 in Cr.Case No.661/2017, passed by

Additional Chief Metropolitan Magistrate No.20, Jaipur

Metropolitan Sanganer whereby cognizance has been taken under

Section 500 IPC against the present petitioner on the basis of

trailer of film Jolly LLB 2.

(2 of 6) [CRLMP-6165/2017]

2. Though the present petition under Section 482 Cr.P.C.

challenging the order of cognizance has been directly filed before

availing the remedy of Revision, however, since this court had

entertained the petition and interim order was also passed way

back on 4-12-2017, therefore, this petition is being disposed of on

hearing learned counsel for both the parties on merits.

3. Heard learned counsel appearing on behalf of both the sides

and perused the material made available on record.

4. Learned Senior Counsel Mr. Rajendra Prasad appearing on

behalf of the petitioner submits that the complaint has been filed

on the basis of trailer of film Jolly LLB 2, whereas the entire film

Jolly LLB 2 was scrutinised by the High Court of Judicature at

Bombay (Aurangabad Bench) in PIL No.11/2017, Ajay Kumar Vs.

The Union of India & others, and in compliance of its order dated

6-2-2017, some scenes were deleted. Thereafter necessary

certificate was issued by the Central Board of Films Certification

(hereinafter `CBFC'). In the past four years, no objection from

any sect of the Society has been levelled against the film so

released after above certification. The trailer was also approved by

the CBFC and the presumption is in favour of the film so released

after due certification by the CBFC that the same has no content

of defamation against any one.

5. Learned Senior Counsel has further contended that for the

offence of defamation under Section 499 IPC, the alleged

defamatory content should be such, which may cause defamation

(3 of 6) [CRLMP-6165/2017]

of a particular person or persons whose identity can be

established. In this case, the complainant individually has not

been defamed in any manner. Besides this, the film is a work of

fiction and an Artist has to execute his skilfull role and he has no

personal opinion or intention to defame any one. The impugned

order of cognizance is also violative of fundamental rights of

freedom of speech and expression as guaranteed under Article

19(1)(a) and 19(1)(g) of the Constitution of India. The learned

Additional Chief Metropolitan Magistrate was obliged to ponder

over all aspects of the matter, but the impugned order itself

indicates that the cognizance has been taken in cursory manner

without due application of mind. Thus the impugned order is not

sustainable in the eyes of law and liable to be quashed and set

side. Reliance has been placed on G. Narasimhan, G. Kasturi and

K. Gopalan Vs. T.V. Chokkappa [(1972)2 SCC 680], Anand Bazar

Patrika (P) Ltd. Vs. State of West Bengal [2005 Cri.L.J. 1126],

Smt. Aruna Asaf Ali Vs. Purna Narayan Sinha [1984 Cri.L.J. 1121],

Government Advocate Vs. Gopal Bandu Das [AIR 1922 Pat 101],

Shilpesh Chaudhary Vs. Union of India [W.P.(C) No.1492/2013

decided on 8-3-2013 by Division Bench of Delhi High Court], Shah

Rukh Khan Vs. State of Rajsthan [RLW 2008(1) Raj. 809], Asha

Parekh Vs. State of Bihar [1977 Cri.L.J. 21], Narottamdas L. Shah

Vs. Patel Maganbhai Revabha [1984 GLH 687], M.J. Akbar Vs.

Nurul Alam [Manu/WB/0444/1985], Mattel Inc. Vs. Ms. Aman Bijal

Mehta [CS (Comm) 803/2017, order dated 22-11-2017 by the

High Court of New Delhi], Raj Kapoor Vs. Laxman [(1980)2 SCC

175], Priya Singh Paul Vs. Madhur Bhandarkar [Special Leave to

Appeal No.19194/2017 decided on 27-7-2017], Prakash Jha

(4 of 6) [CRLMP-6165/2017]

Productions Vs. Union of India [(2011)8 SCC 372], Pepsi Food Ltd.

Vs. Special Judicial Magistrate [(1998)5 SCC 749], Mahendra

Singh Dhoni Vs. Yerraguntla Shyamsundar [AIR 2017 SC 2392],

Mallika Sherawat Vs. State of Maharashtra [2015 SCC Online Bom

5912], S. Khushboo Vs. Kanniammal [(2010)5 SCC 600],

Nachiketa Walhekar Vs. Central Board of film Certification [Writ

Petition (Civil) No.1119/2017 decided on 16-11-2017 by Supreme

Court], Rakeysh Omprakash Mehra Vs. Govt. of NCT of Delhi

[2013 SCC Online Del 6], Sanjay Leela Bhansali Vs. State of

Rajasthan [2018 RLW (Raj) 513].

6. Learned counsel appearing on behalf of complainant submits

that the trial court at the preliminary stage of cognizance is not

obliged to minutely or meticulously examine the merits of the

case. Rather cognizance has to be taken if sufficient grounds for

proceedings exist on a complaint and statements recorded under

Sections 200 and 202 CrPC. Learned Additional Chief Metropolitan

Magistrate has taken cognizance in the matter on the basis of

complaint and supporting materials placed before him. The matter

does not come in any of the exception of Section 499 IPC,

therefore, the present petition deserves to be dismissed. Reliance

has been placed on Fiona Shrikhande Vs. State of Maharashtra

[(2013)14 SCC 44], State of Bihar Vs. Murad Ali Khan [(1988)4

SCC 655] and Jagdish Ram Vs. State of Rajasthan [(2004)4 SCC

432].

7. Heard. Considered.

(5 of 6) [CRLMP-6165/2017]

8. Having heard learned Senior Counsel appearing on behalf of

the petitioner and learned counsel appearing on behalf of the

complainant and on perusal of the material made available on

record, this court finds that admittedly the complaint has been

filed on the basis of certain scenes in the trailer of the film Jolly

LLB 2, which was released after certification by the CBFC. The

High Court of bombay in the case of Ajay Kumar (supra) appointed

an expert Committee and after making scrutiny of entire film

appropriate directions were issued to delete some scenes from the

film Jolly LLB 2. In turn, the CBFC issued the certificate to release

the film. After issuing certificate by the CBFC under the special

provisions of the Sction 5-A of the Cinematograph Act, a

justification in law within Section 79 for public display of the film

exists and subsequent prosecution is not sustainable, as has been

held in the case of Raj Kapoor (supra).

9. The learned trial court was obliged to consider the trailer in

context of the entire film and then only a logical conclusion was

required to be drawn. Admittedly, the impugned order of

cognizance has been passed on the basis of trailer only.

10. Besides above, the petitioner is an artist, who has no

personal opinion or intention or any ill will against any individual

or the petitioner or the class of lawyers. Thus, the impugned order

also tends to violate fundamental rights of the petitioner of

freedom of speech and expression as guaranteed under Articles

19(1)(a) and 19(1)(g) of the Constitution of India.

(6 of 6) [CRLMP-6165/2017]

11. True it is that in view of legal position expounded in the

judgments cited by the complainant, the trial court is not

supposed to maticuolously examine the merits of the case at the

stage of summoning accused under Section 204 CrPC. But, at the

same time, it is imperative on the part of the trial court that it

should be satisfied before summoning the accused that sufficient

grounds for proceeding are available on record. In this matter, as

discussed above, the trial court before summoning the accused

has not applied its mind on the relevant and necessary aspects of

the matter, which were required to be considered before

summoning the accused. Therefore, the facts and circumstances

of the case are quite distinguishable and the above cited

judgments do not help the complainant.

12. In view of the above, this court finds that the impugned

order has been passed without due application of mind and

without considering all relevant aspects of the matter. Therefore,

the petition is allowed. The impugned order dated 6-2-2017 in Cr.

Case No.661/2017 passed by the Additional Chief Metropolitan

Magistrate No.20, Sanganer Jaipur Metropolitan is quashed and

set aside. The complaint is dimissed.

(SATISH KUMAR SHARMA),J

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