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CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 4546 OF 2013
Shrabani Deodhar … Petitioner
Star Entertainment Media Pvt. Ltd. & Anr. … Petitioners
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Mr. Satish Mane-Shinde, Senior Advocate, a/w Ms. Sulabha V.
Rane and Mr. Nikhil Mane-Shinde for Petitioner in WP/4546/
2013.
Mr. Sanjog Parab, Senior Advocate, a/w Mr. Mohan Rao, Ms. Sakshi Baadkar and Mr. Sangram Parab for Petitioner in WP/4547/
2013.
Ms. Sharmila Kaushik, APP for Respondent Nos.1 and 2-State in both Petitions.
Mr. Milind A. Ingole a/w Ms. Aishwarya Gaikwad and Ms. Manisha Bansode for Respondent No.3-Complainant in both
Petitions.
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JUDGMENT
2. The petitioner in Writ Petition No. 4546 of 2013 was the Programming Head for a Marathi Channel, ‘Star Pravah’ owned by the Star Entertainment Media Private Limited (hereinafter referred to as ‘SEMPL’ for short). The petitioners in Writ Petition No. 4547 of 2013 are the SEMPL and the Executive Producer of the aforesaid SEMPL. The petitioners are aggrieved on being shown as accused in the aforesaid FIR, on a report lodged by the first informant-Rahul Gaikwad.
3. The other accused persons are the Director, Scribe and Actor concerned with a Marathi language serial Laxmi versus Saraswati (hereinafter referred to as ‘Marathi serial’ for short), which was produced by Reliance Broadcast Network Limited (hereinafter referred to as ‘RBNL’ for short).
4. The allegation in the report, leading to registration of the FIR, is that the said accused persons were responsible for airing of a particular episode on 22.08.2012 of the said Marathi serial, in which the words Egkjk - iksjkaph (mhara-poranchi) were used in a dialogue by one the character. This was in the context of warding off evil eye, as regards the leading character in the said Marathi serial. According to the first informant, the said words were intentionally used in order to humiliate him and others, who saw the episode and this constituted offence under the provisions of the Atrocities Act, apart from the aforesaid offences under IPC and PCR Act.
5. The petitioners submit that even if the allegations made in the present FIR, are to be accepted for the sake of arguments, the basic ingredients of the offences are not made out. It was submitted that the petitioners before this Court in these petitions neither uttered objectionable words nor were they content creators of the said Marathi serial.
6. On 10.09.2014, when these petitions came up for consideration, this Court granted Rule and interim relief was granted in terms of prayer clause (b), as a consequence of which, further investigation remained stayed as against the petitioners only.
7. The petitions were taken up for hearing and disposal when Mr. Satish Mane-Shinde, learned senior counsel appearing for the petitioner in Writ Petition No. 4546 of 2013 and Mr. Sanjog Parab, learned senior counsel appearing for the petitioners in Writ Petition No. 4547 of 2013, submitted that the thrust in the present case on behalf of the investigating authority as well as the first informant appeared to be in respect of offences under the provisions of the Atrocities Act. Since the alleged incident took place prior to the amendment of the year 2016 in the Atrocities Act, attention of this Court was invited to Section 3 of the Atrocities Act, as it stood prior to the amendment. It was submitted that in the light of the allegations made by the first informant, only Section 3(1)(x) of the Atrocities Act appears to have been invoked. In fact, Ms. Sharmila Kaushik, learned APP as well as Mr. Milind Ingole, learned counsel appearing for the respondent No.3-first informant, submitted that Section 3(1)(x) of the Atrocities Act was indeed invoked. It is relevant to note that the equivalent provision post amendment is Section 3(1)(r) of the Atrocities Act. By referring to the said provision, it was submitted that the basic ingredients of the offence are not made out in the present case. There is no assertion that the petitioners are not members of a scheduled caste or scheduled tribe, knowledge or intention of using the objectionable words cannot be attributable to the petitioners at all and there is no question of the petitioners being held responsible for the perceived humiliation of the first informant. It was submitted that in the present case, the entire screen play, narration and flow of the scenes of each episode and the actual dialogues were developed by RBNL. The SEMPL and the other petitioners herein had absolutely no role in finalizing the dialogues, the modality of shooting, as also the hiring of artists. The channel of the SEMPL before airing the episodes displayed a disclaimer clause, stating that the petitioners did not endorse any of the views or actions undertaken in the episodes/serial.
8. It was submitted that in such circumstances, imputing any intention on the part of the petitioners to insult or intimidate the first informant with the intent to humiliate him for the reason that he was a member of the scheduled caste, cannot be made out.
9. It was indicated that the script of that particular episode also did not contain the objectionable words and it was the actor who, at the spur of the moment and impromptu, uttered the said words and therefore, the petitioners cannot be connected with the same, in any manner, at all. It was further submitted that common intention is not even invoked in the present case and therefore, when the individual roles of the petitioners are appreciated, there is no question of the basic ingredient of the said offence being made out.
10. The aforesaid submissions were reiterated in the context of alleged offence under Section 295A of the IPC, which pertains to deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion and beliefs or even Section 7 of the PCR Act, which pertains to punishment for offences arising out of untouchability.
11. In support of the said contentions, reliance was placed on the judgments of the Supreme Court in the cases of Ramji Lal Modi Vs. State of U.P., AIR 1957 SC 620, Nathulal Vs. State of Madhya Pradesh, AIR 1966 SC 43, Mahendra Singh Dhoni Vs. Yerranguntla Shyamsundar & Anr., (2017) 7 SCC 760, Sashikant Sharma & Ors. Vs. State of Uttar Pradesh & Anr., 2023 SCC OnLine SC 1599. Reliance was also placed on judgment of the Madhya Pradesh High Court in the case of Smt. Shobha Kapoor & Ors. Vs. State of Madhya Pradesh & Ors., 2014 SCC OnLine MP 1706, concerning similar circumstances pertaining to a television show, wherein certain words were used referring to the caste of individuals. Yet, the Court held in favour of the accused and quashed the FIR. On this basis, it was submitted that this Court may allow the petitions and quash the FIR in their context.
12. On the other hand, Ms. Kaushik, learned APP submitted that in the present case, the FIR was admittedly registered in pursuance of an order dated 05.12.2013 passed by a Division Bench of this Court in Criminal Writ Petition No. 3176 of 2013. The first informant herein had filed the said writ petition, raising a grievance about the failure of the Police machinery in registration of FIR in the context of the very same grievance. It was submitted that since the FIR was registered on a direction issued by a Division Bench of this Court, there was no question of the FIR being quashed.
13. The file pertaining to the investigation, carried out till the interim stay was granted by this Court, was produced for perusal of this Court. Reliance was placed on statements of witnesses recorded during the course of investigation, highlighting the fact that all of them raised identical grievance like the first informant about feeling insulted and humiliated, due to the aforesaid objectionable words used in the episode of the said Marathi serial. It was submitted that sufficient material was available on record to make out the basic ingredients of the alleged offences, including offence under Section 3(1)(x) of the Atrocities Act. It was submitted that the petitioners cannot be permitted to wriggle out of their responsibility of editing out such objectionable material. Having failed to do so, intention on their part is clearly made out and therefore, no indulgence should be shown to the petitioners. It was submitted that most of the contentions raised on behalf of the petitioners were more in the form of defence and that the same could be considered at the stage of trial. It was emphasized that the objects and reasons for which the Atrocities Act was enacted, should not be ignored and the writ petitions ought to be dismissed.
14. Mr. Ingole, learned counsel appearing for respondent No.3first informant in these petitions, supported the contentions of the learned APP. He submitted that all the ingredients of the alleged offences were clearly made out against all the accused persons, including the petitioners. The airing of the episode, wherein the objectionable words were uttered, itself shows that the act was committed in public view and since the statement of the first informant, leading to registration of the FIR, specified the ground of feeling humiliation and insult, no interference is warranted at this stage. It was submitted that in the statement leading to registration of the FIR, it was specifically stated that using the objectionable words Egkjk - iksjkaph (mhara-poranchi) in conjunction with Hkqrk - [ksrkph (bhuta-khetachi) i.e. referring to ghosts etc, indicated that the objectionable words were not just pejorative, but they were intentionally used to insult and humiliate all persons belonging to that caste. It was submitted that the whole purpose of enactment of the Atrocities Act was to ensure that such illtreatment to the scheduled caste and scheduled tribe must be dealt with by an iron hand. Granting relief, at this stage itself, to the petitioners, would amount to acting against the objects and reasons for enactment of the Atrocities Act. On this basis, it was submitted that the writ petitions deserve to be dismissed.
15. The rival submissions have been considered in the backdrop of the contents of the FIR and the specific provisions of law invoked to register the offences against the accused persons, including the petitioners. Although, the FIR refers to only Section 3 of the Atrocities Act, there is no dispute between the parties that the alleged offence in the present case is Section 3(1)(x) of the Atrocities Act, as it stood prior to the amendment in the year
2016. Similarly, although the FIR records offence under Section 7(g) of the PCR Act, it is evident that there is no such clause (g) in Section 7 of the PCR Act and the nearest clause to the alleged offence appears to be Section 7(1)(d) of the PCR Act, which provides that whoever insults or attempts to insult, on the ground of untouchability, a member of the scheduled caste, shall be punishable with imprisonment for a term not less than one month and not more than six months and also with fine, ranging between Rs.100 to Rs.500. Section 295A of the IPC pertains to deliberate and malicious act on the part of the accused persons with an intention to outrage religious feelings.
16. In order to examine whether the ingredients of these offences are prima facie made out against the petitioners herein, it would be appropriate to first refer to the statement of the first informant, leading to registration of the FIR and then to consider the alleged role of the petitioners herein.
17. The grievance of the first informant and also that of the other witnesses is that when they saw the episode of the aforesaid Marathi serial aired on 22.08.2012 between 7:00 p.m. to 7:30 p.m. and subsequently, on 23.08.2012 between 1:00 p.m. to 1:30 p.m., they found that one of the characters, while addressing other characters in the episode in the context of warding off evil eye, specifically used the words Egkjk - iksjkaph (mhara-poranchi). This, according to the first informant, amounted to referring to the scheduled caste Mahar and that too in conjunction with words like Hkqrk - [ksrkph (bhuta-khetachi), indicating that the said words were not just used in a pejorative sense, but as a caste abuse intentionally to insult, intimidate and thereby humiliate the first informant and all others, belonging to the scheduled caste, who had seen the said episode.
18. Since criminal prosecution for offence involves a serious matter, which can lead to imposition of fine and also incarceration, the examination as to whether the ingredients of the criminal offence are made out or not, has to be strict and specific. The offence, as alleged in the present case, is in the context of an individual, who in this case is the informant.
19. Section 3(1)(x) of the Atrocities Act, as it stood prior to the amendment in the year 2016, reads as follows:
3. Punishments for offences of atrocities – (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -
(i) to (ix) *********
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;”
20. A perusal of the above quoted provision shows that for a prima facie case of having committed the aforesaid offence to be made out, it is to be concluded that the acts attributable to the accused persons, in this case the petitioners in these two writ petitions, do show an intention on their part to insult or intimidate with intent to humiliate a member of a scheduled caste or a scheduled tribe in any place within public view. It is also the requirement of the above quoted provision that such alleged acts are to be undertaken by a person, who is not a member of a scheduled caste or a scheduled tribe. In other words, only a person, who is not a member of the scheduled caste or scheduled tribe can be accused for such an offence.
21. The statement of the first informant and the contents of the FIR at no place even allege that the petitioners herein are not members of the scheduled caste or the scheduled tribe. Perhaps, such an allegation could not be made for the reason that SEMPL Company itself through its owner is shown as an accused, apart from the Producer, Director, Scribe and the Actor, associated with the aforesaid Marathi serial.
22. It was only when the petitioners herein i.e. the Programming Head of the Marathi channel ‘Star Pravah’ and the Executive Producer working with SEMPL were questioned during the course of investigation, that they were prompted to file these writ petitions. It is to be noted that SEMPL company itself is petitioner No.1 in Writ Petition No. 4547 of 2013. Considering that one of the basic ingredients of the offence under Section 3(1)(x) of the Atrocities Act, is that the accused must not be a member of a scheduled caste or a scheduled tribe, it becomes clear that SEMPL company could never be arraigned as an accused.
23. Apart from this, even if we proceed on the basis that the question as to whether the individual officers i.e. the Executive Producer of SEMPL in Writ Petition No. 4547 of 2013 and the Programming Head of the Marathi channel Star Pravah, owned by the SEMPL, are members of a scheduled caste or scheduled tribe or not, could be a matter for trial, the basic ingredient of the offence requires an intentional act on the part of the accused.
24. Even according to the statement of the first informant, leading to registration of the FIR, the objectionable words were uttered by an actor, playing a particular character in the Marathi serial. The actual utterance of the words cannot even be attributed to the petitioners before this Court. The role of the petitioners before this Court of being the Programming Head of the said Marathi channel and being the Executive Producer of the SEMPL company, was limited to broadcasting of the aforesaid Marathi serial, the content creators of which were all associated with the RBNL. It was sought to be indicated on the part of the petitioners that the script did not contain the objectionable words and it was the actor, who impromptu and at the spur of moment uttered those words. But, at this stage itself, the aforesaid aspect cannot be gone into for the reason that the inquiry, as to whether the script indeed contained the said words or not, could be a matter of evidence in trial.
25. But, it needs to be examined as to what was the act on the part of the petitioners before this Court, which would demonstrate prima facie an intent on their part to insult or intimidate the first informant in order to humiliate him, as being a member of a scheduled caste or scheduled tribe. The last portion of the above quoted provision i.e. the words ‘in any place within public view’ was also emphasized upon by the learned senior counsel appearing for the petitioners. But, broadcasting of the serial open to public view, is an aspect that may be taken into consideration, while examining as to whether the offence is even prima facie made out against the petitioners.
26. It is settled law that intention i.e. guilty mind or mens rea would have to be inferred, inter alia, from the specific allegation levelled against the accused. Since, we are at the threshold stage, the allegation being levelled by the first informant has to be accepted as it is, in order to examine as to whether even a prima facie case is made out against the petitioners i.e. the accused persons.
27. We find that in the present case, the petitioner in Writ Petition No. 4546 of 2013 being the Programming Head of the concerned Marathi channel, at the relevant point in time, and petitioner No.2 in Writ Petition No. 4547 of 2013 being the Executive Producer for the petitioner No.1-SEMPL, cannot be said to have even prima facie committed an act that would demonstrate an intention on their part to insult, intimidate or humiliate the first informant on account of his belonging to a scheduled caste.
28. Mere use or reference to the name of a caste, included in the list of scheduled castes or scheduled tribes, cannot in itself constitute an offence, unless it is referred to or used intentionally to inflict insult, intimidation or humiliation, on a particular member of a scheduled caste or scheduled tribe. In the present case, as noted herein above, it cannot even be alleged that the petitioners before this Court uttered the objectionable words, much less intentionally uttered such words.
29. In this context, reliance placed on behalf of the petitioners on judgment of the Madhya Pradesh High Court in the case of Smt. Shobha Kapoor & Ors. Vs. State of Madhya Pradesh & Ors. (supra) appears to be appropriate. In the said case also, certain objectionable words referring to a particular caste, included in the list of scheduled castes, were used in a television show. It was alleged that these objectionable words were intentionally used in order to hurt the sentiments of the first informant therein. The Court took into consideration the context in which the said words were used in the television show and concluded that even a prima facie case regarding the basic ingredients of the offence under Section 3(1)(x) of the Atrocities Act was not made out. We find that mere use of the said objectionable words in this case also in the context of the dialogue used by a particular character in the Marathi serial, does not demonstrate an intention on the part of the petitioners herein to cause insult or humiliation to the first informant, as a member of a scheduled caste.
30. Even if the objects and reasons for which the Atrocities Act is enacted, are taken into consideration, it is found that the said statute has been enacted to prevent commission of atrocities and offences against members of scheduled castes and scheduled tribes and to provide special Courts for trial of such offences. The offences necessarily have to be committed against specific individuals, who are members of the scheduled castes and scheduled tribes. Even if the allegations levelled by the first informant are taken at face value, we find that intention or mens rea or guilty mind, even prima facie cannot be attributed to the petitioners before this Court for constituting offence under Section 3(1)(x) of the Atrocities Act. It is to be noted that the Supreme Court in the case of Sashikant Sharma & Ors. Vs. State of Uttar Pradesh & Anr. (supra) emphasized upon the need for existence of each ingredient of the offence under the Atrocities Act to even proceed against an accused person. Although, it would depend upon the facts and circumstances of the individual case, but the basic ingredients are required to be fulfilled before the accused can be put through the tribulation of a criminal trial.
31. The petitioners have emphasized on the fact that disclaimer was always displayed when the episodes pertaining to the said Marathi serial were aired, stating that SEMPL did not endorse any view or action or enactment. But, as noted hereinabove, considering the basic ingredients of the offence, the petitioner No.1-SEMPL in Writ Petition No. 4547 of 2013 cannot be proceeded against and it is only individuals, who may face the criminal proceedings, but that too upon the essential ingredients of the alleged offences being satisfied.
32. In the present case, it was emphasized on behalf of the first informant that since the episodes were pre-recorded and then aired, the intention on the part of the individual petitioners in these petitions could be gathered from their failure to edit out the objectionable words. We are of the opinion that to impute intention on the part of the individual petitioners in these petitions on the basis of such alleged omission on their part would not satisfy the ingredients of the said offence under Section 3(1)(x) of the Atrocities Act, particularly when no specific allegation was made that these individuals not being members of a scheduled caste or scheduled tribe had intentionally undertaken an act to insult, intimidate or humiliate the first informant, who is a member of the scheduled caste. Thus, we find that in the facts and circumstances of the present case, the basic ingredients of the offence under Section 3(1)(x) of the Atrocities Act, are not made out and the petitioners have been able to demonstrate a strong case in their favour.
33. As regards offence under Section 7(1)(d) of the PCR Act, pertaining to insult or attempt to insult, a member of a scheduled caste on the ground of untouchability, suffice it to say that there is not even an allegation against the individuals in these petitions that they uttered the objectionable words that could constitute such an insult and hence, the basic ingredient of the said offence is also not made out.
34. As regards offence under Section 295A of the IPC, we are of the opinion that the petitioners are justified in relying upon judgments of the Supreme Court in the case of, Ramji Lal Modi Vs. State of U.P. (supra), as also Mahendra Singh Dhoni Vs. Yerranguntla Shyamsundar & Anr. (supra). The Supreme Court has deliberated upon the words ‘deliberate and malicious intention’, which is the crux of the said offence. It is emphasized that unless the objectionable act is at least prima facie found to be deliberate and malicious, criminal prosecution ought not to follow. Considering the role of the petitioners, it is evident that even a prima facie case is not made out with regard to the offence under Section 295A of the IPC. It is also significant to note that common intention is not alleged against the petitioners and hence, their individual roles are assessed, which clearly show that even a prima facie case is not made out against them.
35. We also perused the documents contained in the file pertaining to investigation carried out till interim relief was granted by this Court. We find that statements of witnesses are identical and they claim that the first informant told them about utterance of the objectionable words in the episode aired on 22.08.2012 between 7:00 p.m. to 7:30 p.m. and when they saw the said episode, which was again aired on 23.08.2012 between 1:00 p.m. to 1:30 p.m., they also felt insulted and humiliated. Since, we have found hereinabove that the basic ingredients of the offences registered against the petitioners are not made out, mere repetition of the allegations by individuals other than the first informant, cannot come in the way of the petitioners in succeeding in these petitions.
36. The papers contained in the file also supported the contention raised on behalf of the petitioners that a general grievance was made concerning the use of the said objectionable words in the aforesaid episode of the Marathi serial, by others also and when this was brought to the notice of the SEMPL, discussions took place, wherein a senior member of parliament belonging to Republican Party of India participated and ultimately grievances raised and complaints made by individuals were withdrawn, as there was general satisfaction that the use of the said objectionable words was not intentional. Although, this Court cannot rely upon such material, the papers in the file do indicate that SEMPL company was sensitive about the issue and further, there was no intention on the part of any individual employee of the said company to insult, intimidate or humiliate the first informant or others and that too in a place within public view.
37. In the case of State of Haryana & Ors. v/s. Bhajan Lal & Ors., 1992 Supp (1) SCC 335, the Supreme Court has recorded illustrative situations, where an FIR can be quashed. These details are found in paragraph 102 of the said judgment, which reads as follows:
38. We are of the opinion that the case of the petitioners falls in clause (1) of the above quoted paragraph of the judgment and hence, this is a fit case for exercising jurisdiction to quash the subject FIR in the context of the petitioners before this Court.
39. As regards the contention of the learned APP that the FIR was registered on the basis of order 05.12.2013 passed in Criminal Writ Petition No. 3176 of 2013, suffice it to say that the said order was passed on a statement made by the prosecutor. It was an exparte order and such an order cannot preclude this Court from examining as to whether the petitioners could be arraigned as accused and as to whether basic ingredients of the said offences are made out or not against them. Hence, the said contention is rejected.
40. In view of the above, the petitions are allowed and FIR NO. 232 of 2013 registered at Wada Police Station, Thane is quashed. Rule made absolute in above terms.
41. It is made clear that the said FIR is quashed only in the context of the petitioners before this Court, in these petitions.
42. Pending applications, if any, also stand disposed of.
43. The file containing the papers of investigation tendered by the learned APP, is returned. (MANJUSHA DESHPANDE, J.) (MANISH PITALE, J.)
DHARMENDER PRITHIANI