How To Compile Compendium

3rd C.
L Agrawal Memorial Moot Court Competition, 2019
Compendium
Of the Cases Cited
On behalf of the Respondents in the matter of
Mr. Kishan Juneja & Ors………………….………………………Appellant
v.
Central Baord of Film Certification & Ors……………………Respondent
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3rd C.L Agrawal Memorial Moot Court Competition, 2019
Ranjit D. Udeshi, 1965 AIR 881, 1965 SCR (1) 65.
(Before P.B Gajendragadkar, C.J, K.N Wanchoo, J.C Shah, Rajagopal Ayangar and m.
Hidayatullah, JJ)
This extract is taken from Ranjit D. Udeshi v. State of Maharashtra, (1965) 1 SCR 65 :
AIR 1965 SC 881 : (1965) 2 Cri LJ 8.
M. HIDAYATULLAH, J.— The appellant is one of four partners of a firm which owns a book-
stall in Bombay. He was prosecuted along with the other partners under Section 292 of the
Indian Penal Code. All the facts necessary for our purpose appear from the simple charge
with two counts which was framed against them. It reads:
“That you Accused 1, 2, 3, 4 on or about the 12th day of December, 1959 at Bombay being
the partners of a book-stall named Happy Book Stall were found in possession for the
purpose of sale copies of an obscene book called Lady Chatterley's Lover (unexpurgated
Edn.) which inter alia contained, obsence matter as detailed separately and attached herewith
and thereby committed an offence punishable under Section 292 of the Indian Penal Code.
AND
That you Gokuldas Shamji on or about the 12th day of December 1959 at Bombay did sell to
Bogus Customer Ali Raza Sayeed Hasan a copy of an obscene book called Lady Chatterley's
Lover (unexpurgated Edn.) which inter alia contained obscene matter as detailed separately
and attached herewith and thereby committed an offence punishable under Section 292 of the
Indian Penal Code.”
The first count applied to the appellant who was Accused 2 in the case. The Additional Chief
Presidency Magistrate III Court, Esplanade, Bombay convicted all the partners on the first
count and fined each of them Rs 20 with one week's simple imprisonment in default.
Gokuldas Shamji was additionally convicted on the second count and was sentenced to a
further fine of Rs 20 or like imprisonment in default. The Magistrate held that the offending
book was obscene for purposes of the section. The present appellant filed a revision in the
High Court of Bombay. The decision of the High Court was against him. He has now
appealed to this Court by special leave and has raised the issue of freedom of speech and
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expression guaranteed by the nineteenth Article. Before the High Court he had questioned the
finding of the Magistrate regarding the novel.
2. It is convenient to set out Section 292 of the Indian Penal Code at this stage:
“292. Whoever—
Sale of obscene books, etc.— (a) sells, lets to hire, distributes, publicly exhibits or in any
manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition
or circulation, makes, produces or has in his possession any obscene book, pamphlet,
paper, drawing, painting, representation or figure or any other obscene object whatsoever,
or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid,
or knowing or having reason to believe that such object will be sold, let to hire,
distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows
or has reason to believe that any such obscene objects are, for any of the purposes
aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly
exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged
or is ready to engage in any act which is an offence under this section, or that any such
obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section, shall be
punished with imprisonment for either description for a term which may extend to three
months, or with fine, or with both.
Exception.— This section does not extend to any book, pamphlet, writing, drawing or
painting kept or used bona fide for religious purposes or any representation sculptured,
engraved, painted or otherwise represented on or in any temple, or on any car used for the
conveyance of idols, or kept or used for any religious purpose.
9. Condemnation of obscenity depends as much upon the mores of the people as upon the
individual. It is always a question of degree or as the lawyers are accustomed to say, of where
the line is to be drawn. It is, however, clear that obscenity by itself has extremely "poor value
in the-propagation of ideas, opinions and information of public interest or profit." When there
is propagation of ideas, opinions and information of public interest or profit, the approach to
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the problem may become different because then the interest of society may tilt the scales in
favour of free speech and expression. It is thus that books on medical science with intimate
illustrations and photographs, though in a sense immodest, are not considered to be obscene
but the same illustrations and photographs collected in book form without the medical text
would certainly be considered to be obscene. Section 292, Indian Penal Code deals with
obscenity in this sense and cannot thus be said to be invalid in view of the second clause
of Art.
22. We may now refer to Roth's case (1) to which a reference has been made. Mr. Justice
Brennan, who delivered the majority opinion in that case observed that if obscenity is to be
judged of by the effect of an isolated passage or two upon particularly susceptible persons, it
might well encompass material legitimately treating with sex and might become unduly
restrictive and so the offending book must be considered in its entirety. Chief Justice Warren
on the other hand made "Substantial tendency to corrupt by arousing lustful desires as the
test. Mr. Justice Harlan regarded as the test that must "tend to sexually impure thoughts". In
our opinion, the test to adopt in our country (regard being had to our community mores) is
that obscenity without a preponderating social purpose or profit cannot have the
constitutional protection of free speech and expression, and obscenity is treating with sex in a
manner appealing to the carnal side of human nature, or having that tendency. Such a treating
with sex is offensive to modesty and decency but the extents of such appeal in a particular
book etc. are matters for consideration in each individual case.
29. We have dealt with the question at some length because this is the first case before
this Court invoking the constitutional guarantee against the operation of the law regarding
obscenity and the book is one from an author of repute and the centre of many controversies.
The book is probably an unfolding of his philosophy of life and of the urges of the
unconcious but these are unfolded in his other books also and have been fully set out in
his Psychoanalysis and the Unconscious and finally in the Fantasia of the Unconscious.
There is no loss to society if there was a message in the book. The divagations with sex are
not a legitimate embroidery but they are the only attractions to the common man. When
everything said in its favour we find that in treating with sex the impugned portions viewed
separately and also in the setting of the whole book pass the permissible limits judged of from
our community standards and as there is no social gain to us which can be said to
preponderate, we must hold the book to satisfy the test we have indicate above.
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30. In the conclusion we are of the opinion that the High Court was right in dismissing the
revision petition. The appeal fails and is dismissed.
Samaresh Bose v. Amal Mitra, 1986 AIR 967, 1985 SCR Supl. (3) 17.
(Before R.S Pathak and A.N Sen, JJ)
A.N. Sen, J.
1. Samaresh Bose, the first appellant, is a well-known writer of Bengali Novels and stories.
He is the author of a novel which under the caption 'Prajapati' came to be published in
'Sarodiya Desh' (the annual pooja number of the Bengali Journal 'Desh') for the Bengali year
1374 B.S. Desh is a journal of repute with wide circulation and the puja number is read by
lovers of Bengali literature of all age groups all over India, Sitangshu Kumar Dasgupta, the
second appellant was the publisher and the printer of the journal at the relevant time.
2. On the 2nd of February 1968, Amal Mitra, a young Advocate, made an application in the
Court of the Chief Presidency Magistrate at Calcutta complaining that the said novel
'Prajapati' "contains matters which are obscene and both the accused persons have, sold,
distributed printed and exhibited the same which has the tendency to corrupt the morals of
those in whose hands the said 'Sarodiya Desh' may fall and the reading public as well" and
"both the accused persons have committed an offence punishable under Section 292 Indian
Penal Code (I.P.C. for short) and under Section 292 read with Section 109 I.P.C.
41. It appears that the vulgar and slang language used have greatly influenced the decision of
the Chief Presidency Magistrate and also of the learned Judge of the High Court. The
observations made by them and recorded earlier go to indicate that in their thinking there has
been kind of confusion between vulgarity and obscenity. A vulgar writing is mot necessarily
obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does mot
have the effect of depraving, debasing and corrupting the morals of any reader of the novel,
whereas obscenity has the tendency to deprave and corrupt those whose minds are open to
such immoral influences.
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42. We must, therefore, allow this appeal. We set aside the judgment of the Courts below and
the conviction recorded and sentenced imposed on the appellants. We acquit the appellants of
the charges framed against them and we hold that the novel is not obscene and does not
offend Section 292 I.P.C. We direct that the fine, if paid by the appellants, shall be refunded
to them. We make no order as to costs.
K.A. Abbas v. Union of India, AIR 1978 SC 597.
(Before M. Hidayatullah, C.J, and J. Sheit, G.K Mitter,C.A Vaidiyalingam and A.N
Ray,JJ)
This extract is taken from K.A. Abbas v. Union of India, (1970) 2 SCC 780 at page 783.
M. HIDAYATULLAH, C.J.— This petition seeks a declaration against the Union of India
and the Chairman, Central Board of Film Censors, that the provisions of Part II of the
Cinematograph Act, 1952 together with the rules prescribed by the Central Government,
February 6, 1960, in the purported exercise of its powers under Section 5-B of the Act are
unconstitutional and void. As a consequence the petitioner asks for a writ of mandamus or
any other appropriate writ, direction or order quashing the direction contained in a letter
(Annexure X), dated July 3, 1969, for deletion of certain shots from a documentary film
entitled “A Tale of Four Cities”, produced by him for unrestricted public exhibition.
2. The petitioner is a journalist, play-wright and writer of short stories. He is also a
producer and director of cinematograph films. He was a member of the Enquiry Committee
on Film Censorship (1968) and is a member of the Children's Film Committee. He has
produced and/or directed many film some of which have been well-received here and abroad
and even won awards and prizes.
20. The method changes, the rules 'are different and censorship is more strict in some places
than in others, but censorship is universal. Indeed the petitioner himself pronounced strongly
in favour of it in a paper entitled 'Creative Expression' written by him. This is what he said:
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"But even if we believe that a novelist or a painter or a musician should be free to write, paint
and compose music without the interference of the State machinery, I doubt if anyone will
advocate the same freedom to be extended to the commercial exploitation of a powerful
medium of expression and entertainment like the cinema. One can imagine the results if an
unbridled commercial cinema is allowed to cater to the lowest common denominator of
popular taste, especially in a country which, after two centuries of political and cultural
domination, is still suffering from a confusion and debasement of cultural values.
Freedom of expression cannot, and should not, be interpreted as a license for the
cinemagnates to make money by pandering to, and thereby propagating, shoddy and vulgar
taste'.
52. It was for this purpose that this Court was at pains to point out in Ranjit D. Udeshi
case certain considerations for the guidance of censorship of books. We think that those
guides work as well here. Although we are not inclined to hold that the directions are
defective in so far as they go, we are of opinion that directions to emphasize the importance
of art to a value judgment by the censors need to be included. Whether this is done by
Parliament or by the Central Government it hardly matters. The whole of the law and the
regulations under it will have always to be considered and if the further tests laid down here
are followed, the system of censorship with the procedural safeguards accepted by the
Solicitor-General will make censorship accord with our fundamental law.
53. We allow this petition as its purpose is more than served by the assurance of the
Solicitor-General and what we have said, but in the circumstances we make no order about
costs.
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Bobby Art International V. Mahendar Pal Singh Hoon, (1996) 4 SCC 1.
(Before A.M Ahmadi, C.J, S.P Bharucha and B.N Kirpal, JJ)
This extract is taken from Bobby Art International v. Om Pal Singh Hoon, (1996) 4
SCC 1 at page 4.
S.P. BHARUCHA, J.— Special leave granted.

This extract is taken from Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC
1 at page 4.
2. These appeals impugn the judgment and order of a Division Bench of the High Court
of Delhi in letters patent appeals. The letters patent appeals challenged the judgment and
order of a learned Single Judge allowing a writ petition. The letters patent appeals were
dismissed, subject to a direction to the Union of India (the second respondent). The writ
petition was filed by the first respondent to quash the certificate of exhibition awarded to the
film “Bandit Queen” and to restrain its exhibition in India.
This extract is taken from Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC
1 at page 16.
31. A film that illustrates the consequences of a social evil necessarily must show that
social evil. The guidelines must be interpreted in that light. No film that extols the social evil
or encourages it is permissible, but a film that carries the message that the social evil is evil
cannot be made impermissible on the ground that it depicts the social evil. At the same time,
the depiction must be just sufficient for the purpose of the film. The drawing of the line is
best left to the sensibilities of the expert Tribunal. The Tribunal is a multi-member body. It is
comprised of persons who gauge public reactions to films and, except in cases of stark breach
of guidelines, should be permitted to go about its task.
33. We are of the opinion that the Tribunal had viewed the film in its true perspective and
had, in compliance with the requirements of the guidelines, granted to the film an ‘A’
certificate subject to the conditions it stated. We think that the High Court ought not to have
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entertained the first respondent's writ petition impugning the grant of the certificate based as
it was principally upon the slurs allegedly cast by the film on the Gujjar community. We find
that the judgment under appeal does not take due note of the theme of the film and the fact
that it condemns rape and the degradation of and violence upon women by showing their
effect upon a village child, transforming her to a cruel dacoit obsessed with wreaking
vengeance upon a society that has caused her so much psychological and physical hurt, and
that the scenes of nudity and rape and the use of expletives, so far as the Tribunal had
permitted them, were in aid of the theme and intended not to arouse prurient or lascivious
thoughts but revulsion against the perpetrators and pity for the victim.
34. The appeals are allowed. The judgment and order under appeal is set aside. The first
respondent's writ petition is dismissed. The ‘A’ certificate issued to the film “Bandit Queen”
upon the conditions imposed by the Appellate Tribunal is restored.
B.K. Adarsh v. Union of India, 1989 SCC OnLine AP 154.
(Before Ramaswamy, J)
This extract is taken from B.K. Adarsh v. Union of India, 1989 SCC OnLine AP 154 :
AIR 1990 AP 100 : (1989) 2 AP LJ (SN) 79 : (1990) 2 An WR 34 at page 101.
1. The Petitioner had produced a film titled ‘SEX VGYAN’ (Sex Education) and applied
on Sept., 18, 1987 to the Addl. Regional Officer, Central Board of Film Certification, at
Hyderabad (4th respondent) for certification under S. 5-A of the Cinematograph Act (Act 37
of 1952) for short, “the Principal Act”. The Examining Committee met on Oct., 28, 1987 and
on preview, recommended to grant ‘A’ Certificate to the film with 13 cuts. On its placement
before the Chairman on consideration of the material, he exercised suo motu power and
referred to the Revising Committee which saw the film at Bombay on November 18, 1987.
All the eight members unanimously recommended that the film in its present form be refused
certification and on appeal, the Film Certification Appellate Tribunal confirmed it after seeing
the film on February 5, 1988 and hearing the Counsel. The petitioner is assailing the legality
of refusal to grant ‘A’ Certificate (fit for exhibiting the film to the Adults).
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2. The film starts with a Conference of Medicos and other delegates on sex education
headed by Dr. Ravi Varma who prefaced with the need to enlighten the public on sex
education in the modern society and the evil effects due to its ignorance followed by a
discussion on several topics starting with ‘Happy married life’, prostitution, venereal
diseases, Aids, pregnancy, different methods of deliveries, family planning methods, test tube
baby, sex transmission, cancer to sex organs, etc. Thereafter, there is the session viz.
questions by the delegates and answers by a panel of Doctors and lastly with sex perversion
and their evil effects.
18. On the anvil of Art. 14, an argument to accord immunity from punishment, penalty or
liability for contravention of law on par with those escaped unscathed is often being breezed
across the Bar and it received repeated echo from Sri Subhashan Reddy. He contends that
similar films in regional languages like Malayalam, Tamil, Telugu, etc. with more obscenity
and pornography have been certified by the Board for exhibition and the denial of
certification to the petitioner offends Art. 14. I find no inkling of doubt to reject the
contention outright. Undoubtedly the Constitution assures to every citizen right to avocation,
profession, trade, business as well as equality before law. It is equally paramount that
everyone has a fundamental duty to obey the law, in other words, not to contravene or violate
the law or commit an offence. He who abides by law alone is entitled to equal protection and
the converse leads to grotesque results. Law affords no immunity to any person to contravene
law and claim that he would be equally permitted to be escaped from punishment, liability or
penalty for violation thereof merely because others happened to go scot free. Merely because
the other films with more or equal obscenity and pornography have been certified for
exhibition, it does not automatically entitle the producer of a film for certification u/s. 5A for
exhibition. In Reg. v. Reiter(1954) 2 QB 16 it was held that it is no good defence to say that
there are other portions in other books or articles which contain obscene matters as serious as
or more serious than the offending article. Equally in In re D. Pandurangam, 1953 Cri LJ 763
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: (AIR 1953 Madras 418) it was also held that whether a particular book is obscene (or not) is
a question of fact and mere fact that there is no prosecution of publishers of similar books
cannot mean that the instant book does not fall within the scope of Sec. 292 IPC. Thus, I hold
that the mere grant of certification to other films which have more or similar obscene or
pornographic scenes or events or sequences does not automatically entitle a producer like
petitioner of a motion picture to a certification u/s. 5A. It is the particular film that needs
certification alone has to be viewed and if it is found to be in conformity with law then alone
it is entitled to a certification u-/s. 5A. The petitioner is not entitled to avail the protection of
Art. 14 on this ground if it is found to have violated the law.
34. Thus considered, I hold that the Examining Committee is well justified in
recommending to grant ‘A’ Certificate to the film “Sex Vigyan” of the petitioner with cut
portions already deleted and some of the portions to be cut which were suggested by the
Examining Committee and upheld during the course of judgment. The petitioner shall
accordingly make suitable alterations and submit the film afresh to the Examining Committee
for certification in the light of the law laid down above and the Board shall accordingly grant
the certificate.
35. Before parting with the case, I express my deep appreciation to Prof. Dr. Anjaneyulu for
his valuable assistance rendered to this Court.
36. The writ petition is accordingly allowed, but in the circumstances without costs.
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K. Ganeshan v. Film Certification Appellate Tribunal, 2016 SCC OnLine Mad 9355.
(Before T.S Sivagnanam, J)
This extract is taken from K. Ganeshan v. Film Certification Appellate Tribunal, 2016
SCC OnLine Mad 9355 : (2016) 4 LW 961 : (2016) 6 CTC 1 at page 965.
1.The Writ Petitioner, a native of Bangalore, claims to be a professional Film Director having
directed six Kannada films, which were box office hits. In the Writ Petition, he challenges the
order passed by the Central Board of Film Certification (CBFC), refusing to grant
certification to a feature film in Tamil directed by him, titled “Porkalathil Oru Poo”,
portraying the life of a Journalist in Sri Lanka Ms. Isai Priya, which order was confirmed in
appeal by the Film Certification Appellate Tribunal (FCAT). The third and fourth respondents
in the Writ Petition are the sister and mother of the said Ms. Isai Priya. The petitioner claims
to having been inspired to make the film after watching a telecast by a London based TV
network called ‘Channel-4’ which telecasted inhuman atrocities and barbaric acts committed
by the Sri Lankan Army personnel on Ms. Isai Priya, which ultimately led to her tragic
demise. The petitioner claims to have gathered details of Ms. Isai Priya and her family
background and that the family of Ms. Isai Priya was involved in the freedom movement of
Tamil Eelam; she was married and she had a girl child, she was an Orator, Dancer, Singer and
a Poet and she joined a Tamil Television Channel in Sri Lanka and worked as a News Reader.
The petitioner would further state that on account of the atrocities committed by the Sri
Lankan Army during 2009, which resulted in a war like situation, Ms. Isai Priya's child died
due to starvation and she is said to have arranged for the clandestine exist of her family
members from Sri Lanka, while she chose to remain there. According to the petitioner, since
the Tamil Television Channel in which Ms. Isai Priya was working, was telecasting
information about the atrocities committed by Sri Lankan Army, she was personally targeted
and illegally picked up from her house, subjected to inhuman treatment and was gang raped
and ultimately died. The petitioner is said to have narrated the “story”, to Mr. J.C. Gurunadh
Chalasani who was interested in producing the film and that is how the petitioner states that
he shot the film “Porkalathil Oru Poo”. The film opens with the scene showing the Hon'ble
Chief Minister Dr. Selvi J. Jayalalitha and referring to a resolution passed by the Tamil Nadu
State Legislative Assembly on 27.03.2013, purportedly to protect the interest of the Sri
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Lankan Tamils and to eschew violence against them. An application was preferred before the
CBFC on 06.05.2015 for certification of the film under the provisions of the Cinematograph
Act, 1952, (hereinafter referred to as the ‘Act’). The Examination Committee of the CBFC
viewed the film on 11.05.2015 and it appears that the Regional Officer had informed the
petitioner that there are objectionable materials in the film and she will not permit the film to
be certified. The matter was thereafter placed before the Revising Committee, which viewed
the film on 22.05.2015, after which the impugned order dated 25.05.2015, was passed,
refusing certification. The reasons for refusing certification as stated in the impugned order is
that the film criticise the Indian country and Sri Lankan Army and justifies Tamil Eelam by
LTTE, a banned outfit; the film shows brutal gang rape, killing of LTTE Journalist Ms. Isai
Priya and it contains too much of violence; the film is based on incidents of a LTTE
Journalist; the map shows a separated Tamil Eelam by LTTE and the last two reels deal with
brutal inhuman killing and rape. Thus, the CBFC concluded that the film violates various
clauses of the Guidelines for Certification of Films for Public Exhibition namely, clauses (2)
(xvi)-friendly relationship with foreign states are not strained, 2(ix)-scenes degrading or
denigrating women in any manner are not presented; 2(x)-scenes involving sexual violence
against Women like attempt to rape, rape or any form of molestation of scenes of a similar
nature and 2(xi) scenes showing sexual perversions. On appeal to the Tribunal (FCAT) under
Section 5C of the Act, the film was viewed on 23.06.2015 and the petitioner was given an
opportunity to putforth his submissions and he is stated to have agreed to certain cuts and also
to mute certain dialogues, after which, once again the film was viewed on 06.08.2015 and the
FCAT rejected the appeal by order dated 31.08.2015, holding that the film which depicts the
freedom struggle for an independent Tamil Eelam by LTTE, terrorist outfit banned by 30
countries in the world, is still replete with terrorism, violence, sexual perversions and
degradation of women, which reflect adversely of the Sri Lankan Administration and Army
and is therefore, likely to affect the friendly relations of India with Sri Lanka, apart from
violating the guidelines mentioned in the order of the Revising Committee. The order passed
by the CBFC as confirmed by the FCAT are impugned in this Writ Petition.
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2. The respondents 3 and 4, sister and mother of Ms. Isai Priya, have filed C.S. No. 971 of
2015, in which the first plaintiff is the fourth respondent (mother), the second plaintiff is the
third respondent (sister) and Writ Petitioner, the first defendant, the second defendant is the
producer of the film and the third defendant is CBFC. The suit is for grant of a decree of
permanent injunction restraining the defendants 1 and 2 (Writ Petitioner and Producer) from
releasing, publishing, exhibiting, publically or privately, selling, promoting or advertising or
entering into the film festivals or in any manner producing in any format film, drama, serial
or any other literary or artistic expression in respect of the life of Sobha @ Isai Priya and/or
her family members, their direct descendants without the consent of the plaintiffs. The
plaintiffs have sought for an interlocutory relief in O.A. No. 1306 of 2015, for a grant of
interim injunction to restrain the Writ Petitioner and the Producer from releasing, publishing,
etc., the life of Sobha @ Isai Priya and/or her family members, their descendants without the
consent of the plaintiffs. In this order, the respondents 3 and 4 in the Writ Petition shall be
referred to as the plaintiffs.
30. A note of caution was added by the Hon'ble Supreme Court stating that it has been
almost universally recognised that treatment of motion pictures must be different from that of
other forms of art and expression. For the reason that the art of the cameraman, with trick
photography three dimensional representation has made the cinema picture more true to life
than even the theatre or indeed any other form of representative art. The motion picture is
able to stir up emotions more deeply than any other product of art. Its effect particularly on
children and adolescents is very great, since their immaturity makes them more willingly
suspend their disbelief than mature men and women. They also remember the action in the
picture and try to emulate or/imitate what they have seen. Therefore, it was held that
classification of films into two categories of ‘U’ films and ‘A’ films is a reasonable
classification. Explaining as to why a motion picture must be regarded differently, the
Hon'ble Supreme Court made a following observations:—
22…. It is also for this reason that motion pictures must be regarded differently from
other forms of speech and expression. A person reading a book or other writing or hearing
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a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion

picture. Therefore the treatment of the latter on a different footing is also a valid
classification.
69. For all the above reasons, this Court finds no grounds to interfere with the decision
taken by the CBFC, as confirmed by the FCAT, refusing certification of the petitioner's film.
Accordingly, the Writ petition fails and is dismissed.
70. In the result, :—
(i) Writ Petition challenging the orders passed by the CBFC dated 25.05.2015, as
confirmed by the FCAT, dated 31.08.2015, is dismissed and the impugned orders are
held to be valid and proper and the prayer sought for by the petitioner to direct the
respondents to issue certificate to the Tamil film “Porkalathil Oru Poo”, for public
exhibition is rejected.
(ii) For the reasons assigned, it is held that the plaintiffs have made out a case for grant of
an order of interim injunction and accordingly, O.A. No. 1306 of 2015 in C.S. No.
971 of 2015, is allowed restraining the first and second respondents from releasing,
publishing, exhibiting, publicly or privately selling, promoting or advertising or
entering into films festivals or in any manner producing in any format film, drama,
serial or any other literary or artistic expression in respect of the life of Shoba @
Isaipriya and/or her family members their direct respondents without the consent of
the plaintiffs till the disposal of the suit.
(iii) No costs. Consequently, connected Miscellaneous Petition is closed.
Chandra Kant Kalyandas Kakodkar v. State of Maharashtra and Ors, 1970 AIR 1390,
1970 SCR (2) 80.
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(Before P. Jaganmohan Reddy, J)
This extract is taken from Chandra Kant Kalyandas Kakodkar v. State of Maharashtra
and Ors, 1970 AIR 1390, 1970 SCR (2) 80. At page 281
1. The appellant is the author of a short story entitled Shama published in the 1962
Diwali Issue of Rambha, a monthly Marathi Magazine, which story is said to be
obscene. Criminal proceedings were, therefore, initiated before the first class
Magistrate, Poona by the complainant Bhide under s. 292 I.P.C. against the Printer
and Publisher accused 1, the writer of the story accused 2 and the selling agent
accused 3. The complainant stated that he had read the aforesaid Diwali issue of
Rambha and found many articles and pictures in it to be obscene which are calculated
to corrupt and deprave the minds of the readers in general and the young readers in
particular. The Complainant further relented to several other articles in the same issue
such as the story of Savitri and certain cartoons but we are not now concerned with
these because both the Magistrate as well the High Court did not think that they
offended the provisions of s. 292 I.P.C. the magistrate after an exhaustive
consideration did not find the accused guilty of the offence with which they were
charged and, therefore, acquitted them. The complainant and the State filed appeals
against this judgment of acquittal. Before the High Court it was conceded that there
was no evidence that accused No. 3 had sold any copies of the issues of Rambha and
accordingly the order of acquittal in his favour was confirmed. In so far as the other
two accused are concerned it reversed the order of acquittal and convicted the printer
and publisher accused 1 and the writer accused 2 under s. 292 I.P.C. but taking into
consideration the degree of obscenity in the passages complained of a fine Rs. 25/-
only was imposed on each of the accused and in default they were directed to suffer
simple imprisonment for a week. It was also directed that copies of the magazine
Rambha in which the offending story was published and which may be in possession
and power of the two accused be destroyed.
16
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2. The allegation, against the accused is that certain passages in the story of Shama at
pp. 111-112, 114, 116, 118-121, 127, 128, 131, and 134 are said to be obscene. In
support of this the complainant examined himself and led the evidence of Dr. P.G.
Sahstrabudhe and Dr. G.V. Purohit in support of his allegation that the novel is
obscene and that the writer and publisher contravened the provisions of s. 292 I.P.C.
Accused No. 1 stated that the story of Shama was written by an ;able writer which
depicted the frustration in the life of a poet and denied that it was obscene. The writer
Kakodar, accused No. 2 claims to have written about 60 such stories. which are
published in different periodicals by reputed publishers. He also denies that Shama is
obscene and states that he has introduced certain characters in order to condemn the
worst and glorify the best and it was never his intention to titillate the sex feelings of
the readers, but on the other hand his attempt was to achieve the literary and artistic
standard which was in keeping with the style of some of the able and successful
writers of Marathi literature. In support of his defence, he examined Shri Keluskar
and Prof. Madho Manohar D.Ws. 1 and 2 respectively. The Court on its own
summoned and examined Prof. N.S. Phadke and Acharya P.K. Atre. Both the
magistrate as well as the learned Judge of the High Court were conversant with
Marathi and they seem to have read the story of Shama in the original, an advantage
which we have not got. However, on a consideration of the offending passages in the
story to which we shall refer presently, they came to different and opposite
conclusions. It is apparent that the question whether a particular article or story or
book is obscene or not does not altogether depend on oral evidence because it is the
duty of the court to ascertain whether the book or story or any passage or passages
therein offend the provisions of s. 292.
This extract is taken from Chandra Kant Kalyandas Kakodkar v. State of Maharashtra
and Ors, 1970 AIR 1390, 1970 SCR (2) 80. At page 305
27. The concept of obscenity would differ from country to country depending on the
standards of morals of contemporary society. What is considered as a piece of literature in
France may be obscene in England and what is considered in both countries as not harmful to
public order and morals may be obscene in our country. But to insist that the standard should
always be/or the writer to see that the adolescent ought not to be brought into contact with
17
Compendium
sex or that if they read any references to sex in what is written whether that is the dominant
theme or not they would be affected, would be to require authors to write books only for the
adolescent and not for the adults. In early English writings authors wrote only with unmarried
girls in view but society has changed since then to allow litterateurs and artists to give
expression to their ideas, emotions and objectives with full freedom except that is should not
fall within the definition of 'obscene' having regard to the standards of contemporary society
in which it is read. The standards of contemporary society in India are also fast changing. The
adults and adolescents have available to them a large number of classics, novels, stories and
pieces, of literature which have a content of sex, love and romance.
28. As. observed in Udeshi's(1) case if a reference to sex by itself is considered obscene, no
books can be sold except those which are purely religious. In the field of art and cinema also
the adolescent is. shown situations which even a quarter of a century ago would be
considered derogatory to public morality, but having regard to changed conditions are more
taken for granted without in anyway tending to debase or debauch the mind. What we have to
see is that whether a class, not an isolated case, into whose hands the book, article or story
falls suffer in their moral outlook or become depraved by reading it or might have impure and
lecherous thought aroused in their minds. The charge of obscenity must, therefore, be judged
from this aspect. We do not think that any of the impugned passages which have been held by
the High Court as offending s. 292 I.P.C.
Aveek Sarkar v State of West Bengal, (2014) 4 SCC 257.
(Before Subrata Talukdar, J)

18
Compendium
This extract is taken from Aveek Sarkar v. State of W.B., (2014) 4 SCC 257 : (2014) 2
SCC (Cri) 291 : 2014 SCC OnLine SC 98 at page 261.
Subrata Talukdar, J.— A German magazine by name Stern having worldwide
circulation published an article with a picture of Boris Becker, a world renowned tennis
player, posing nude with his dark-skinned fiancée by name Barbara Feltus, a film actress,
which was photographed by none other than her father. The article states that, in an interview,
both Boris Becker and Barbara Feltus spoke freely about their engagement, their lives and
future plans and the message they wanted to convey to the people at large, for posing to such
a photograph. The article picturises Boris Becker as a strident protester of the pernicious
practice of “Apartheid”. Further, it was stated that the purpose of the photograph was also to
signify that love champions over hatred.
2.Sports World, a widely circulated magazine published in India reproduced the article
and the photograph as cover story in its Issue 15 dated 5-5-1993 with the caption:
“Posing nude, dropping out of tournaments, battling racism in Germany. Boris Becker
explains his recent approach to life”—Boris Becker Unmasked.
3.Anandabazar Patrika, a newspaper having wide circulation in Kolkata, also published
in the second page of the newspaper the abovementioned photograph as well as the article on
6-5-1993, as appeared in Sports World.
Community standard test
23. We are also of the view that Hicklin test [R. v. Hicklin, (1868) LR 3 QB 360] is not
the correct test to be applied to determine “what is obscenity”. Section 292 of the Penal Code,
of course, uses the expression “lascivious and prurient interests” or its effect. Later, it has also
been indicated in the said section of the applicability of the effect and the necessity of taking
the items as a whole and on that foundation where such items would tend to deprave and
corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or
hear the matter contained or embodied in it. We have, therefore, to apply the “community
standard test” rather than the “Hicklin test” [R. v. Hicklin, (1868) LR 3 QB 360] to determine
what is “obscenity”. A bare reading of sub-section (1) of Section 292, makes clear that a
picture or article shall be deemed to be obscene
19
Compendium
(i) if it is lascivious;
(ii) it appeals to the prurient interest; and
(iii) it tends to deprave and corrupt persons who are likely to read, see or hear the
matter, alleged to be obscene.
Once the matter is found to be obscene, the question may arise as to whether the impugned
matter falls within any of the exceptions contained in the section. A picture of a nude/semi-
nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse the
feeling of or revealing an overt sexual desire. The picture should be suggestive of deprave
mind and designed to excite sexual passion in persons who are likely to see it, which will
depend on the particular posture and the background in which the nude/semi-nude woman is
depicted. Only those sex-related materials which have a tendency of “exciting lustful
thoughts” can be held to be obscene, but the obscenity has to be judged from the point of
view of an average person, by applying contemporary community standards.
29. We have found that no offence has been committed under Section 292 IPC and then
the question whether it falls in the first part of Section 79 IPC has become academic. We are
sorry to note that the learned Magistrate, without proper application of mind or appreciation
of background in which the photograph has been shown, proposed to initiate prosecution
proceedings against the appellants. The learned Magistrate should have exercised his wisdom
on the basis of judicial precedents in the event of which he would not have ordered the
appellants to face the trial. The High Court, in our view, should have exercised powers under
Section 482 CrPC to secure the ends of justice.
30. We are, therefore, inclined to allow this appeal and set aside the criminal proceedings
initiated against the appellants. The appeal is allowed as above.
Delhi Jal Board v. Raj Kumar and Ors, 2005 SCC OnLine Del 1140.
(Before Markandeya Katju, C.J and Madan B. Lokur, J)
20
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This extract is taken from Delhi Jal Board v. Raj Kumar, 2005 SCC OnLine Del 1140 :
ILR (2005) 2 Del 778 : AIR 2006 Del 75 : (2005) 125 DLT 120 : PLR (2006) 142 Del 33 :
(2005) 2 TN MAC 357 : (2006) 2 AIR Jhar R (NOC 405) 22 : 2006 ACJ 1025 : (2006) 2
CCC 324 at page 781.
2. This appeal has been filed against the impugned judgment of a learned Single Judge dated
30th September, 2005. The facts in detail have been mentioned in the judgment of the learned
Single Judge and hence it is not necessary for us to repeat the same except where necessary.
3. There is no dispute that one Vikas Gupta who was driving a scooter on 20.4.2003 at
about 9 p.m. drove over a manhole which was three inches below the regular surface of the
road and met with an accident. In para 5 of the writ petition it is alleged that there was no
caution/sign board put at the site. Vikas Gupta received fatal injuries as a result of the
accident. His right eye was crushed. There was bleeding from ear and nose. The flesh of his
face scattered on the grill of the road divider. His teeth, blood and flesh scattered on the road.
Due to the said injuries, Shri Vikas Gupta died on the spot. It is stated in paragraph 9 of the
counter affidavit of Delhi Jal Board that:
“Admittedly, the manhole of the sewer line was covered properly, but the upper
surface level of the manhole cover was not in tandem with the road surface level and this
was the exact reason for the said fatal accident. That as far as the responsibility of
levelling the road surface is concerned, the same lies with the MCD. It is the
responsibility of MCD to raise the plinth of the existing manholes, as and when, the plinth
of the existing level of the road is raised by fresh carpeting.”
These extract are taken from Delhi Jal Board v. Raj Kumar, 2005 SCC OnLine Del
1140 : ILR (2005) 2 Del 778 : AIR 2006 Del 75 : (2005) 125 DLT 120 : PLR (2006) 142
Del 33 : (2005) 2 TN MAC 357 : (2006) 2 AIR Jhar R (NOC 405) 22 : 2006 ACJ 1025 :
(2006) 2 CCC 324 at page 788.
38. In India, Article 38(1) of the Constitution states “The State shall strive to promote the
welfare of the people by securing and protecting as effectively as it may a social order in
which justice, social, economic and political, shall inform all the institutions of the national
life.”
39. Thus, it is the duty of the State under our Constitution to function as a Welfare State,
and look after the welfare of all its citizens.
21
Compendium
40. In various social welfare statutes the principle of strict liability has been provided to
give insurance to people against death and injuries.
This extract is taken from Delhi Jal Board v. Raj Kumar, 2005 SCC OnLine Del 1140 :
ILR (2005) 2 Del 778 : AIR 2006 Del 75 : (2005) 125 DLT 120 : PLR (2006) 142 Del 33 :
(2005) 2 TN MAC 357 : (2006) 2 AIR Jhar R (NOC 405) 22 : 2006 ACJ 1025 : (2006) 2
CCC 324 at page 789.
51. When a manhole is constructed the DJB must see to it not only that it is properly
covered but also that the manhole is in line with the surface of the road. If the manhole is
only covered but the cover is below the surface of the road it is likely to cause an accident,
particularly if a person is driving a two wheeler in insufficient light and there is no caution
sign. It is the duty of the Delhi Jal Board to construct and maintain manholes properly, and
not at its whims and fancies. Maintaining a manhole with a cover which is below the surface
of the road, in our opinion is wholly improper and hazardous and in violation of the duty of
the Jal Board. The Delhi Jal Board cannot pass on its responsibility in this connection to the
MCD, which is only responsible for maintaining the roads and not manholes.
52. In view of the above, we are not inclined to interfere with the judgment of learned
Single Judge.
53. We fully agree with the reasoning given by the learned single Judge while adding our
own reasoning and dismiss the appeal. Appeal dismissed.
Retired Employees of non-Government College Association v. State of Maharashtra,

1987 SCC OnLine Bom 86.
(Before C.S Dharmadhikari and H.W Dhawe, JJ)
22
Compendium
This extract is taken from Retired Employees of non-Government College Association v.

State of Maharashtra, 1987 SCC OnLine Bom 86 : (1987) 2 LLN 73 : (1987) 2 Bom CR
348 : 1987 Mah LJ 326 : (1987) 4 SLR 418 : 1987 Lab IC 1183at page 74
DHARMADHIKARI, J.:— This writ petition is filed by the retired employees of the non-
Government College Association Nagpur, praying for a writ of mandamus that the date
prescribed by the Government in the Government resolution, dated 21 July 1983, extending
the pension-cum-gratuity scheme to the teaching and non-teaching staff of the non-
agricultural universities and affiliated non-Government colleges to the persons who retire or
retired on or after 1 October 1982, be declared as violative of Art. 14 of the Constitution.
According to the petitioners, the date prescribed, viz., 1 October 1982, is not only arbitrary
but also makes a hostile discrimination between the persons similarly situated but who retired
prior to 1 October 1982, and the persons who retired thereafter. According to the petitioners,
this prescription of the date is void ab initio since it violates the petitioners' fundamental right
guaranteed under Art. 14 of the Constitution of India.
2. The petitioner 1 is an association of the employees of the non-Government colleges in

the Vidarbha region. The petitioner 2, Sri Ramchandra Ambadas Tijare, is a retired professor
and secretary of the association. The petitioner 3 is also a retired professor. The petitioner 2,
Sri Tijare, retired in the year 1973, and the petitioner 3 retired in the year 1981. According to
them, since the date prescribed by the aforesaid Government resolution is 1 October 1982,
they are denied the benefits of the pension-cum-gratuity scheme though they are similarly
circumstanced with the teachers who retired after 1 October 1982. The petitioners carried out
a long correspondence with the Government but did not receive any reply. The only reply
which they received from the Government was that the matter is under consideration. Since
the various representations made by them were of no avail, they were ultimately constrained
to file the present writ petition on 16 December 1985. The respondent State Government filed
its return. However, no explanation has, been given as to why the date 1 October 1982, was
chosen. After the matter was fully argued, a further time was asked by Sri Badar and Sri
Tayade, counsel appearing for the respondents, to seek further instructions. Today they have
23
Compendium
produced before us a telegram which only states that the date 1 October 1982, was fixed in
view of the assurance given by the Government in the Assembly. No other reason has been
disclosed either in the return filed before us or even during the course of arguments.

4. Law on the point is by now well settled. In this context a reference could usefully be
made to the observations of the Supreme Court in Paras. 32, 42 and 43 of the judgment
in Nakara case, [1983 — I L.L.N. 289] (vide supra), which read as under:
“Having succinctly focussed our attention on the conspectus of elements and incidents
of pension the main question may now be tackled. But, the approach of Court while
considering such measure is of paramount importance. Since the advent of the
Constitution, the State action must be directed towards attaining the goals set out in Part
IV of the Constitution which, when achieved, would permit us to claim that we have set
up a welfare State. Article 38(1) enjoins the State to strive to promote welfare of the
people by securing and protecting as effective as it may a social order in which justice
social, economic and political shall inform all institutions of the national life. In
particular, the State shall strive to minimise the inequalities in status, facilities and
opportunities. Article 39 (d) enjoins a duty to see that there is equal pay for equal work
for both men and women and this directive should be understood and interpreted in the
light of the judgment of this Court in Randhir Singh v. Union of India, [1982-I L.L.N.
327]. Revealing the scope and content of this facet of equality, Chinnappa Reddy, J.,
speaking for the Court observed as under in Para. 1 at page 329:
“…Now, thanks to the rising social and political consciousness and the
expectations roused as a consequence, and the forward looking posture of this Court,
the under-privileged also are clamouring for their rights and are seeking the
intervention of the Court with touching faith and confidence in the Court. The Judges
of the Court have a duty to redeem their constitutional oath and do justice no less to
the pavement dweller than to the guest of five star hotel.”
Proceeding further, this Court observed that where all relevant considerations are the same,
persons holding identical posts may not be treated differently in the matter of their pay
24
Compendium
merely because they belong to different departments. If that can't be done when they are in
service, can that be done during their retirement? Expanding this principle, one can
confidently say that if pensioners form a class, their computation cannot be by different
formula affording unequal treatment solely on the ground that some retired earlier and some
retired later. Article 39(e) requires the State to secure that the health and strength of workers,
men and women, and children of tender age are not abused and that citizens are not forced by
economic necessity to enter avocation unsuited to their age or strength. Article 41 obligates
the State within the limits of its economic capacity and development to make effective
provision for securing the right to work, to education and to provide assistance in cases of
unemployment, old age, sickness and disablement and in other cases of undeserved want.
Article 43(3) requires the State to endeavour to secure amongst other things full enjoyment of
leisure and social and cultural opportunities.”
Then in Paras, 42 and 43, the Supreme Court observed:
“42. If it appears to be undisputable as it does to us that the pensioners for the purpose
of pension benefits form a class, would its upward revision permit a homogeneous class
to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision,
and would such classification be founded on some rational principle? The classification
has to be based, as is well settled, on some rational principle and the rational principle
must have nexus to the objects sought to be achieved. We have set out the objects
underlying the payment of pension. If the State considered it necessary to liberalise the
pension scheme, we find no rational principle behind it for granting these benefits only
tothose who retired subsequent to that date simultaneously denying the same to those who
retired prior to that date. If the liberalisation was considered necessary for augmenting
social security in old age to Government servants then those who retired earlier cannot be
worse off than those who retire later. Therefore, this division which classified pensioners
into two classes is not based on any rational principle and if the rational principle is the
one of dividing-pensioners with a view to giving something more to persons otherwise
equally placed, it would be discriminatory. To illustrate, take two persons, one retired just
a day prior and another a day just succeeding the specified date. Both were in the same
pay bracket, the average emolument was the same and both had put in equal number of
years of service. How does a fortuitous circumstance of retiring a day earlier or a day
later will permit totally unequal treatment in the matter of pension. One retiring a day
earlier will have to be subject to ceiling of Rs. 8,100 per annum and average emolument
25
Compendium
to be worked out on 36 months' salary while the other will have a ceiling of Rs.
12,000 per annum and average emolument w 11 be computed on the basis of last ten
months' average. The artificial division stares into face and is unrelated to any principle
and whatever principle, if there be any has absolutely no nexus to the objects sought to be
achieved by liberalising the pension scheme. In fact this arbitrary division has not only no
nexus to the liberalised pension scheme but it is counter productive and runs counter to
the whole gamut of pension scheme. The equal treatment guaranteed in Art. 14 is wholly
violated inasmuch as the pension rules being statutory in character, since the specified
date, the rules accord differential and discriminatory treatment to equals in the matter of
commutation of pension. A 48 hours' difference in matter of retirement would have
traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the
classification does not stand the test of Art. 14.
43. Further, the classification is wholly arbitrary because we do not find a single
acceptable or persuasive reason for this division. This arbitrary action violated the
guarantee of Art. 14. The next question is what is the way out?”

5. If the principle laid down in the said judgment is applied to the present case, in our
view the conclusion is inevitable that the cut out date prescribed by the Government, viz., 1
October 1982, is wholly irrational and results in the hostile discrimination between persons
who have retired before 1 October 1982, or after that date. It is not disputed that the persons
who have retired either prior to 1 October 1982 or thereafter are similarly circumstanced and
belong to the same class. But for the statement made during the course of arguments, there is
nothing on record to show as to why the date 1 October 1982 was chosen. If it was chosen
because an assurance was given by the then Minister for Education on the floor of the House
on that day, then it has no nexus with the object sought tobe achieved by the pension-cum-
gratuity scheme. In this context, it is worthwhile to note that in view of the recommendations
made by the Kothari Commission and the Sen Committee, the pay-scales for the said class of
teachers came to be prescribed with effect from 1 January 1973. Superannuation age was also
prescribed by the said resolution. Pension or gratuity is payable under the scheme in view of
26
Compendium
the superannuation of the person concerned. If this is so then the said scheme must apply
even to the persons who retired on or after 1 January 1973, when for the first time the age of
superannuation and pay-scale came to be prescribed for them. Therefore, without deciding
the larger question as to whether the said scheme should apply even to the pensioners who
retired prior to date 1 January 1973, it can safely be held that the members of the petitioner
association, the petitioners (2) and (3), as well as the persons who retired after 1 January
1973, are entitled to this pension-cum-gratuity scheme. Prescription of the cut out date viz., 1
October 1982 being irrational is wholly violative of Art. 14 of the Constitution. Hence rule is
made absolute and it is declared that the date fixed by the Government resolution, dated 21
July 1983, i.e., 1 October 1982, for entitlement of retirement benefits is violative of Art. 14 of
the Constitution and the petitioners and other employees similarly circumstanced who retired
on or after 1 January 1973 will also be entitled to the benefits granted by the said
Government resolution. As a necessary consequence of this, the Government will have to
prescribe a reasonable date for exercising necessary option by such employees.
Babulal Parate v. State of Maharashtra, (1961) 3 SCR 423.
(Before B.P Sinha, S.K Das, A.K Sarkar, Rajagopal Ayangar and J.R Mudholkar, JJ)
This extract is taken from Babulal Parate v. State of Maharashtra, (1961) 3 SCR 423 :
AIR 961 SC 884 : (1961) 2 Cri LJ 16.
27
Compendium
2. The facts which have led up to the petition are briefly as follows:
3. There are two unions of textile workers in Nagpur, one known at the Rashtriya Mill
Majdoor Sangh and the other as Nagpur Mill Majdoor Sangh. The former is a branch of the
Indian National Trade Union Congress. The Rashtriya Mill Majdoor Sangh entered into an
agreement with the management of the Empress Mills regarding the closure of Empress Mill
No. 1 for rebuilding it and regarding the employment of workers who were employed therein
in a third shift. This agreement was opposed by the Nagpur Mill Majdoor Sangh. On 25-1-
1956 a group of workers belonging to the Nagpur Mill Majdoor Sangh went in a procession
to Gujar's Wada, Mahal, Nagpur where the office of the Rashtriya Mill Majdoor Sangh is
located. It is said that a scuffle took place there between some members of the procession and
some workers belonging to Rashtriya Mill Majdoor Sangh. Thereupon an offence under
Section 452 read with Section 147 of the Indian Penal Code was registered by the police on
27-1-1956. A large procession consisting of the workers of the Nagpur Mill Majdoor Sangh
was taken out. This procession marched through the city of Nagpur shouting slogans which,
according to the District Magistrate, were provocative.
AIR 1961 SC 884 : (1961) 2 Cri LJ 16.
28. It is no doubt true that since the duty to maintain law and order is cast upon the
Magistrate, he must perform that duty and not shirk it by prohibiting or restricting the normal
activities of the citizen. But it is difficult to say that an anticipatory action taken by such an
authority in an emergency where danger to public order is genuinely apprehended is anything
other than an action done in the discharge of the duty to maintain order. In such
circumstances that could be the only mode of discharging the duty. We, therefore, reject the
contention that Section 144 substitutes suppression of lawful activity or right for the duty of
public authorities to maintain order.
AIR 1961 SC 884 : (1961) 2 Cri LJ 16.
33. We have, therefore, reached the conclusion that the order of the District Magistrate is
not unconstitutional either because Section 144 is itself violative of fundamental rights
recognised in Article 19 or on the ground that it is vague and places unreasonable restrictions
on those fundamental rights. We, therefore, dismiss this petition.
28
Compendium
34. Shortly after this petition was made to this Court, the petitioner presented a special
leave petition in which he seeks to challenge the judgment of the Nagpur High Court dated 9-
4-1956 dismissing his writ petition to that High Court. The points raised in the special leave
petition are similar to those raised in this petition. Since we are dismissing this petition, there
can be no question of granting the special leave to the petitioner to appeal against the
judgment of the Nagpur High Court.
Ram Nandan V. State, 1958 SCC OnLine All 117.
(Before M.C Desai, R.N Gurtu and N.U Baig, JJ)
This extract is taken from Ram Nandan v. State, 1958 SCC OnLine All 117 : 1958 All LJ
793 : AIR 1959 All 101 : 1959 Cri LJ 128 at page 794
S.N. SAHAI, J.:— (March 4, 1958)—The appellant Ramanand alias Sita Seth has been
convicted and sentenced to three years' R.I. for an offence punishable under Sec. 124-A,
I.P.C.
2. Learned counsel for the appellant has urged before me that Sec. 124-A, I.P.C. was ultra
vires the Constitution of India and therefore the conviction of the appellant was illegal and
could not be maintained. In support of his contention the learned counsel relied upon a Bench
decision of the Punjab High Court in the case of Tara Singh v. State [1951 A.I.R. Punjab 27.]
and on another unreported single Judge decision of this Court in criminal appeal no. 1434 of
1955 decided by Dayal, J. on 11th February, 1958, (Sabir Raza Khan v. State). A contrary
view has been taken by the Patna High Court in a Division Bench decision reported in Debi
Soren v. The State [A.I.R. 1954 Pat. 254.] , in which it was held that:
“The provisions of Sec. 124-A and 153-A, Penal Code are not rendered void on the
ground that they are inconsistent with the fundamental right of freedom of speech and
expression guaranteed to all citizens of India under Art. 19(1)(a), Constitution of India. In
construing the provisions of Sec. 124-A and 153-A, Penal Code it should be the effort of
the Court to give that interpretation of those provisions which would make them
consistent with the Constitution of India, unless the language of the provisions precludes
such an interpretation. Sec. 124-A and 153-A, Penal Code impose reasonable restrictions
in the interests of public order, giving that expression a fair and reasonably wide meaning.
29
Compendium
Clause (2) of Art. 19, as it now stands, saves the provisions of Secs. 124-A and 153-A,
Penal Code.”
793 : AIR 1959 All 101 : 1959 Cri LJ 128 at page 796.
12. Any reasonable restriction can be imposed on the right to freedom of speech and
expression in the interests of public order, i.e. for the purpose of maintaining public order, or
in order that public order may be maintained, or in order to prevent disorder or an
apprehension of disorder. In the case of Ram Manohar Lohia [A.I.R. 1955 All. 131.] I said
that the words “in the interests of public order” mean for maintenance of “public order.” Das,
C.J. drew a distinction between “in the integers of” and “for maintenance oi” in Ramjilal
Modi v. State of U.P. [1957 A.L.J. 773.] and observed that the words “in the interests of”
make the ambit of the protection very wide and that a law though not designed to maintain
public order directly might have been enacted in the interests of public order; (see page 775).
Proceeding further he observed that the expression “in the interests of public order” is much
wider than “for maintenance of public order” and that a law penalising activities having a
tendency to cause public disorder imposes a restriction in the interests of public order
although in some cases the activities may not actually lead to a breach of public order. The
interests of public order lie only in its being maintained. Any restriction that helps to maintain
public order or prevents an apprehension of public disorder is in the interests of public order.
A restriction that has nothing to do with the maintenance of public order, i.e. one that does
not help the maintenance of public order or does not avert a threat to public order cannot be
said to be in the interest of public order. The words “in the interests of” are wider than “for
maintenance of” only in this sense that they include anything that even indirectly helps the
maintenance of public order. The argument about the maintenance of public order being the
sole object probably draws its inspiration from the following words of Patanjali Sastri J. in
the case of Romesh Thappar [1950 A.L.J. 485.] at page 602; “Unless a law restricting
freedom of speech and expression is directed solely against the undermining of the security of
the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of
Art. 19 although the restrictions which it seeks to impose may have been conceived generally
in the interests of public order”.
30
Compendium
793 : AIR 1959 All 101 : 1959 Cri LJ 128 at page 835.
160. Judging the matter again and finally in the light of the standard laid down by their
Lordships of the Supreme Court above, I am of opinion that the restrictions imposed by the
impugned law are unreasonable and Sec. 124-A, I.P.C. should, therefore, fall on this ground
also. For the above reasons, I am of opinion that Sec. 124-A, Indian Penal Code, is ultra
vires of Article 19(1) of the Constitution, both because it is not in the interests of public order
as well as because the restrictions imposed thereby are not reasonable restrictions. This
section is, therefore, not saved by the reservations contained in Article 19(2) of the
Constitution, and should be declared to be void.
161.BY THE FULL BENCH—For the reasons stated in our judgments in Criminal Appeal
No. 1081 of 1955 we hold that the Provisions of sec. 124-A, I.P.C. have be come void, after
the enforcement of the Constitution. The appellant, therefore, could not be convicted for the
offence of Sec. 124-A. We allow his appeal, set aside the conviction and the sentence
imposed upon him and acquite him. His bail bonds are discharged.
162.Appeal allowed.
163.BY THE FULL BENCH—For the reasons stated in our judgments in Criminal Appeal
No. 1081 of 1955, we hold that the Provisions of sec. 124-A, I.P.C. have be come void with
the enforcement of the Constitution. The applicant has, therefore, committed no offence and
his detention is illegal. We allow the application and set him at liberty. He will get his costs of
the petition from the opposite party.
M.B. Cotton Assn. Ltd. v. Union of India, AIR 1954 SC 634.
(Before M.C Mahajan, CJ, B.K Mukherjee, Sudhi Ranjan Das, Vivian Bose and
Ghulam Hasan, JJ)
This extract is taken from M.B. Cotton Assn. Ltd. v. Union of India, AIR 1954 SC 634
31
Compendium
VIVIAN BOSE, J.— This is a petition made by the Madhya Bharat Cotton Association
Limited, under Article 32 of the Constitution, complaining of discrimination under Article 14
and restraint of trade under Article 19(1)(g). The restraint to trade is because the petitioner
has been prevented by certain notifications, which it impugns, from carrying on the business
of hedge contracts; the discrimination lies in the fact that whereas the petitioner has been
prevented from carrying on this trade the East India Cotton Association Limited, Bombay,
has been allowed to do so and has been given a virtual monopoly in India.
2. The action of which complaint is made was taken under the Cotton Control Order of
1950. Clause 4 of this Order banned all cotton contracts and options in cotton except those
permitted by the Textile Commissioner by a general order made under Clause 6. The Textile
Commissioner was also authorised to place such restrictions and conditions as he thought fit
on the contracts and options which he permitted.
6. Cotton was listed as an “essential commodity” under Section 2(a) of the Essential
Supplies (Temporary Power) Act, 1946 (Act 24 of 1946), so the right of the State to control,
and even to prohibit, transactions in it is evident. “Hedging” is a vital importance in cotton
trading. It not only acts as an insurance and protects cotton growers, manufacturers and
merchants but also acts as a check on reckless speculation and gambling when properly
controlled. Consequently, it is important to have this type of dealing under proper supervision
and control, otherwise, as in the case of banks and insurance companies, innocent persons
may have to suffer for the reckless gambling and speculation of a handful of persons anxious
to get rich quickly. Further, cotton being a commodity essential to the life of the community,
it is reasonable to have restrictions which may, in certain circumstances, extend to total
prohibition for a time, of all normal trading in the commodity. Accordingly, we are of opinion
that Clause 4 of the Cotton Control Order of 1950 does not offend Article 19(1)(g) of the
Constitution because sub-clause (5) validates it.
7. Turning now to Article 14. It is not disputed that the East India Cotton Association of
Bombay is a well organised association which has been dealing in hedge contracts for some
twenty years and the fitness of that Association to be given an exemption has not been
challenged. What the petitioner alleges is that the Madhya Bharat Cotton Association of
Ujjain is also well organised and has almost identical rules and is also capable of operating
hedge contracts. Therefore, it complains that it has been discriminated against.
32
Compendium
20. It will be seen that the New Ujjain Society did not merge with the petitioning
Association till after the impugned order was passed. The fact of merger cannot therefore be
used to impugn that order; and as regards the other two orders, they were made within four
and six months of the merger and that has not left the Textile Commissioner sufficient time to
judge of the effectiveness of the merger. The merger has been accomplished in a very
leisurely and somewhat unbusiness like way; for example, it took from 4-10-1951 to 23-3-
1953 to effect the merger. Consequently, there is justification for the omission to include the
petitioning Association in the exemption given to the East India Cotton Association of
Bombay. Also, the two Associations cannot be said to be on a footing of equality, so no
question of discrimination under Article 11 can arise.
21. The petition is dismissed with costs.
State of Bombay v. F.N. Balsara, 1951 SCR 682
(Before SAIYID FAZL ALI, M. PATANJALI SASTRI, B.K. MUKHERJEA, S.R. DAS AND
VIVAN BOSE, JJ)
This extract is taken from State of Bombay v. F.N. Balsara, 1951 SCR 682 : AIR 1951 SC
318 : (1951) 52 Cri LJ 1361
SAIYID FAZL ALI, J.:— These appeals arise from the judgment and order of the High
Court of Judicature at Bombay upon the application of one F.N. Balsara (hereinafter referred
to as the petitioner), assailing the validity of certain specific provisions of the Bombay
Prohibition Act, 1949 (Bombay Act 25 of 1949), as well as of the Act as whole. The
petitioner, claiming to be an Indian citizen, prayed to the High Court inter alia for a writ of
mandamus against the State of Bombay and the Prohibition Commissioner ordering them to
forbear from enforcing against him the provisions of the Prohibition Act and for the issue of a
writ of mandamus ordering them (1) to allow him to exercise his right to possess, consume
and use certain articles, namely, whisky, brandy, wine, beer, medicated wine, eau-de-cologne
etc. and to import and export across the customs frontier and to purchase, possess, consume
and use any stock of foreign liquor, eau-de-cologne, lavender water, medicated wines and
medicinal preparations containing alcohol, and (2) to forbear from interfering with his right to
33
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possess these articles and to take no steps or proceedings against him, penal or otherwise,
under the Act. The petitioner also prayed for a similar order under Section 45 of the Specific
Relief Act against the respondents. The High Court, agreeing with some of the petitioner's
contentions and disagreeing with others, declared some of the provisions of the Act to be
invalid and the rest to be valid. Both the State of Bombay and the petitioner, being
dissatisfied with the judgment of the High Court, have appealed to this Court after obtaining a
certificate from the High Court under Article 132(1) of the Constitution.
318 : (1951) 52 Cri LJ 1361
2. The Act in question was passed by the legislature of the Province of Bombay as it was
constituted in 1949, and was published in the Bombay Government Gazette on 20th May,
1949, and came into force on 16th June, 1949. The Act consists of 148 sections with 2
Schedules and is divided into 11 chapters. It is both an amending and consolidating Act and
incorporates the provisions of the Bombay Abkari Act which it repeals and also those of the
Bombay Opium and Molasses Acts and contains new provisions for putting into force the
policy of prohibition which is one of the objects mentioned in the preamble of the Act. The
most important provision in Chapter I is the definition of “liquor” which has been vigorously
assailed as being too wide and therefore beyond the powers of the Provincial Legislature.
Chapter II relates to establishment and is not relevant to the present appeal. Chapter III,
which contains a number of prohibitions in regard to liquor as defined in the Act, is said to
enact sweeping provisions which are liable to be assailed. Sections 12 and 13 and the relevant
provisions of Sections 23 and 24 in this chapter may be quoted:
12. No person shall—
(a) manufacture liquor;
(b) construct or work any distillery or brewery;
(c) import, export, transport or possess liquor; or
(d) sell or buy liquor.
(a) bottle any liquor for sale;
(b) consume or use liquor; or
34
Compendium
(c) use, keep or have in his possession any materials, still, utensils, implements or
apparatus whatsoever for the manufacture of any liquor.
(a) commend, solicit the use of, offer any intoxicant or hemp, or
(b) incite or encourage any member of the public or any class of individuals of the
public generally to commit any act, which frustrates or defeats the provisions of this
Act, or any rule, regulation or order made thereunder, or ….
24. (1) No person shall print or publish in any newspaper, news-sheet, book leaflet,
booklet or any other single or periodical publication or otherwise display or distribute any
advertisement or other matter—
(a) which commends, solicits the use of, or offers any intoxicant or hemp.
(b) which is calculated to encourage or incite any individuals or the public
generally to commit an offence under this Act, or to commit a breach of or to evade
the provisions of any rule, regulation or order made thereunder or the conditions of
any licence, permit, pass or authorisation granted thereunder.”
318 : (1951) 52 Cri LJ 1361
33. There is in my opinion another method of approaching the question which also
deserves consideration. Remembering that the object of the Prohibition Act was not merely to
levy excise duties but also to prohibit use, consumption, possession and sale of intoxicating
liquor, the legislature had the power to legislate upon the subjects included in the Act not only
under Entry 31 of List II, but also under Entry 14, which refers inter alia to public health.
Article 47 of the Constitution, which contains one of the directive principles of State policy,
provides that “the State shall regard the raising of the level of nutrition and the standard of
living of its people and the improvement of public health as among its primary duties and, in
particular, the State shall endeavour to bring about prohibition of the consumption, except for
medicinal purposes, of intoxicating drinks and of drugs which are injurious to health”. This
article has no direct bearing on the Act which was passed in 1949, but a reference to it
supports to some extent the conclusion that the idea of prohibition is connected with public
health, and to enforce prohibition effectively the wider definition of the word “liquor” would
have to be adopted so as to include all alcoholic liquids which may be used as substitutes for
35
Compendium
intoxicating drinks, to the detriment of health. On the whole, I am unable to agree with the
High Court's finding, and hold that the definition of “liquor” in the Bombay Prohibition Act
is not ultra vires.
318 : (1951) 52 Cri LJ 1361
60. The only other point which remains to be decided is whether as a result of some of the
sections of the Act having been declared to be invalid, what is left of the Act should survive
or whether the whole Act should be declared to be invalid. This argument was raised before
the High Court also, but it was rejected and it was held that it was not possible on a fair
review of the whole matter to assume that the legislature would not have enacted the part
which remained without enacting the part that was held to be bad. It is to be noted that upon
the findings of the High Court, the question should have assumed a more serious aspect than
it presents now, because the High Court has declared several important sections of the Act
including the definition of “liquor” to be ultra vires the legislature. I have now examined
those sections and have held many of them to be valid. The provisions which are in my view
invalid cannot affect the validity of the Act as a whole. The test to be applied when an
argument like the one addressed in this case is raised, has been very correctly summed up by
the Privy Council in Attorney-General for Albertav. Attorney-General for Canada [(1947)
AC 505 at 518] in these words:
“The real question is whether what remains is so inextricably bound up with the part
declared invalid that what remains cannot independently survive or as it has sometimes
been put, whether on a fair review of the whole matter it can be assumed that the
legislature would have enacted what survives without enacting the part that is ultra vires
at all.”
61. It is quite clear that the provisions held by me to be invalid are not inextricably bound
up with the remaining provisions of the Act, and it is difficult to hold that the legislature
would not have enacted the Act at all without including that part which is found to be ultra
vires. The Act still remains substantially the Act as it was passed i.e. an Act amending and
consolidating the law relating to the promotion and enforcement of the policy of prohibition
and also the Abkari law in the Province of Bombay.
62. In the result, I declare the following provisions of the Act only to be invalid:
36
Compendium
(1) clause (c) of Section 12, so far as it affects the possession of liquid medicinal and
toilet preparations containing alcohol.
(2) clause (d) of Section 12, so far as it affects the selling or buying of such medicinal
and toilet preparations containing alcohol.
(3) clause (b) of Section 13, so far as it affects the consumption or use of such
medicinal and toilet preparations containing alcohol.
(4) clause (a) of Section 23, so far as it prohibits the commendation of any intoxicant
or hemp.
(5) clause (b) of Section 23, in entirety.
(6) clause (a) of sub-section (1) of Section 24, so far as it prohibits commendation of
any intoxicant or hemp.
(7) sub-section (1) of Section 36, in entirety.
(8) clauses (b), (c), (e), and (f) of sub-section (2) of Section 136, in their entirety.
63. I hold that the rest of the provisions of the Act are valid, and I also hold that my
decision declaring some of the provisions of the Act to be invalid does not affect the validity
of the Act as it remains. Appeal No. 182, preferred by the State of Bombay, is therefore
substantially allowed and Appeal No. 183 preferred by the petitioner is dismissed.
64. On the question of costs, I am disposed to make the same order as the High Court has
made, not only because some of the provisions of the Act are still found to be invalid, but also
because the present case appears to have been instituted to test the validity of a controversial
measure and to secure a final decision on it to set at rest the doubts and uncertainties which
may have clouded the minds of a section of the public as to how far the provisions of the Act
conform to law and to the Chapter on Fundamental Rights in the present Constitution.
318 : (1951) 52 Cri LJ 1361
M. PATANJALI SASTRI, J.:— I agree and have nothing more to add.

B.K. MUKHERJEA, J.:— I have read the judgment of my learned Brother Mr Justice Fazl
Ali and I am in entire agreement with his conclusions and reasons. There is nothing further
which I can usefully add.
S.R. DAS, J.:— I agree and I have nothing further to add.
VIVAN BOSE, J.:— I also agree.
37
Compendium
State of Madras v. V.G. Row, 1952 SCR 597
(Before PATANJALI SASTRI, CJ, MC MAHAJAN, B.K MUKHERJEE, SUDHI RANJAN DAS
AND S. CHANDRASEKHAR AIYAR, JJ)
This extract is taken from State of Madras v. V.G. Row, 1952 SCR 597 : AIR 1952 SC 196
: 1952 Cri LJ 966
M. PATANJALI SASTRI, C.J.— This is an appeal from an order of the High Court of
Judicature at Madras adjudging Section 15(2)(b) of the Indian Criminal Law Amendment
Act, 1908 (Act 14 of 1908) as amended by the Indian Criminal Law Amendment (Madras)
Act, 1950, (hereinafter referred to as the impugned Act) as unconstitutional and void, and
quashing Government Order 1517, Public (General) Department, dated 10th March, 1950,
whereby the State Government declared a Society called the People's Education Society an
unlawful association.
2. The respondent, who was the general secretary of the Society, which was registered
under the Societies' Registration Act, 1860, applied to the High Court on 10th April, 1950,
under Article 226 of the Constitution complaining that the impugned Act and the Order dated
10th March, 1950, purporting to be issued thereunder infringed the fundamental right
conferred on him by Article 19(1)(c) of the Constitution to form associations or unions and
seeking appropriate reliefs. The High Court by a full bench of three Judges (Rajamannar,
C.J., Satyanarayana Rao and Viswanatha Sastri, JJ.) allowed the application on 14th
September, 1950, and granted a certificate under Article 132. The State of Madras has
brought this appeal.
The Government Order referred to above runs as follows:
“WHEREAS in the opinion of the State Government, the Association known as the
People's Education Society, Madras, has for its object interference with the administration
of the law and the maintenance of law and order, and constitutes a danger to the public
peace;
NOW, therefore, His Excellency the Governor of Madras, in exercise of the powers
conferred by Section 16 of the Indian Criminal Law Amendment Act, 1908 (Central Act
38
Compendium
14 of 1908) hereby declares the said association to be an unlawful association within the
meaning of the said Act.
No copy of this order was served on the respondent or any other office-bearer of the society
but it was notified in the Official Gazette as required by the impugned Act.
: 1952 Cri LJ 966
15. This Court had occasion in Dr Khare case [(1950) SCR 88] to define the scope of the
judicial review under clause (5) of Article 19 where the phrase “imposing reasonable
restrictions on the exercise of the right” also occurs, and four out of the five Judges
participating in the decision expressed the view (the other Judge leaving the question open)
that both the substantive and the procedural aspects of the impugned restrictive law should be
examined from the point of view of reasonableness; that is to say, the Court should consider
not only factors such as the duration and the extent of the restrictions, but also the
circumstances under which and the manner in which their imposition has been authorised. It
is important in this context to bear in mind that the test of reasonableness, wherever
prescribed, should be applied to each individual statute impugned, and no abstract standard or
general pattern, of reasonableness can be laid down as applicable to all cases. The nature of
the right alleged to have been infringed, the underlying purpose of the restrictions imposed,
the extent and urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In
evaluating such elusive factors and forming their own conception of what is reasonable, in all
the circumstances of a given case, it is inevitable that the social philosophy and the scale of
values of the Judges participating in the decision should play an important part, and the limit
to their interference with legislative judgment in such cases can only be dictated by their
sense of responsibility and self-restraint and the sobering reflection that the Constitution is
meant not only for people of their way of thinking but for all, and that the majority of the
elected representatives of the people have, in authorising the imposition of the restrictions,
considered them to be reasonable.
: 1952 Cri LJ 966
39
Compendium
18. There was some discussion at the bar as to whether want of knowledge of the
notification would be a valid defence in a prosecution under that section. But it is not
necessary to enter upon that question, as the very risk of prosecution involved in declaring an
association unlawful with penal consequences, without providing for adequate
communication of such declaration to the association and its members or office-bearers, may
well be considered sufficient to render the imposition of restrictions by such means
unreasonable. In this respect an externment order stands on a different footing, as provision is
made for personal or other adequate mode of service on the individual concerned, who is thus
assured of an opportunity of putting forward his case. For all these reasons the decision in Dr
Khare case [(1950) SCR 519] is distinguishable and cannot rule the present case as claimed
by the learned Attorney General. Indeed, as we have observed earlier, a decision dealing with
the validity of restrictions imposed on one of the rights conferred by Article 19(1) cannot
have much value as a precedent for adjudging the validity of the restrictions imposed on
another right, even when the constitutional criterion is the same, namely, reasonableness, as
the conclusion must depend on the cumulative effect of the varying facts and circumstances
of each case.
19. Having given the case our best and most anxious consideration, we have arrived at the
conclusion, in agreement with the learned Judges of the High Court, that, having regard to the
peculiar features to which reference has been made, Section 15(2)(b) of the Criminal Law
Amendment Act, 1908, as amended by the Criminal Law Amendment (Madras) Act, 1950,
falls outside the scope of authorised restrictions under clause (4) of Article 19 and is,
therefore, unconstitutional and void.
20. The appeal fails and is accordingly dismissed with costs.
Deepa v. S.I. of Police, 1985 SCC OnLine Ker 285
(Before Padmanabhan, J.)
This extract is taken from Deepa v. S.I. of Police, 1985 SCC OnLine Ker 285 : 1986 KLT
158 : 1986 Cri LJ 1120 at page 159
1. Some of the petitioners are Cabaret dancers and others are Managers of restaurants.
Against them various cases were registered, investigated and charge-sheeted in different
40
Compendium
courts by different investigating agencies for offences punishable under Ss. 294(a) and 114 of
the Indian Penal Code. The general allegation in all the cases is that inside posh hotels nude
and obscene dances and other cabaret performances were conducted. All these petitions are to
quash those proceedings invoking the inherent jurisdiction of this court. I have heard counsels
for petitioners and the Director of Public Prosecutions. Courts holding inquiry or trial under
the Criminal Procedure Code are invested with ample powers to dispense with the ordeal of
full trial in appropriate cases. A magistrate conducting an inquiry into a complaint under S.
202 can dismiss the complaint at the inquiry stage itself if be is of opinion that there is no
sufficient ground for proceeding. The power of discharge under S. 227 and the provision for
discharge under S. 245 are examples of identical instances. An investigating agency is also
having the discretion to decide whether the materials collected are sufficient to place the
accused for trial. Taking cognizance by courts is also a judicial act. Refusal to take
cognizance in appropriate cases, say for instance, for want of requisite sanction or non
disclosure of an offence, is within judicial discretion. Only when such authorities refuse to
exercise their discretion properly or act illegally resulting in abuse of process of court and
failure of justice that this court intervenes in the exercise of inherent power to set matters
right. Taking cognizance of an offence whether an a complaint or on a police charge which do
not disclose any offence at all will be an abuse of the process of court. Charge-sheeting an
accused on the basis of an investigation which did not succeed in collecting materials to place
the accused for trial will also be an illegality. In these cases the general allegation is that the
materials supporting the concerned charge sheets and allegations contained therein do not
constitute the ingredients of the offence under S. 294(a) but on the other hand they disprove
the ingredients. If that contention is correct these are fit cases in which this court will be
justified in interfering in exercise of its inherent powers to quash the proceedings because it
will be an abuse of the process of court to ask the accused to stand the ordeal of harassment
by trial in such proceedings. It will definitely cause miscarriage of justice and prejudice.
Investigation is the field of the police. Taking cognizance and deciding to proceed with
inquiry or trial is the province of the courts. Normally in exercise of the inherent power this
court will be reluctant to interfere with those discretions unless and until the materials on
which such discretions were exercised show that the actions are illegal and amount to abuse
of process of court resulting in prejudice or harassment. The inherent powers may not be
ordinarily extended in such cases because investigating agencies are having the authority to
assess the evidence and decide whether the accused are to be charge-sheeted and courts are
41
Compendium
also having the powers to dismiss the complaint or discharge the accused even without trial in
appropriate cases. Inherent powers are intended to be exercised in cases of grave and patent
injustice.
158 : 1986 Cri LJ 1120 at page 160
2. Normally a charge must fail for want of mens rea but there may be offences where
mens rea may not be required. But actus reus must always exist. Without it there cannot be
any offence. Mens rea can exist without actus reus, but if there is no actus reus there can be
no crime. Even if mens rea is there, no conviction could be had without actus reus without
which there cannot be a crime. For example a man may intend to marry during the life time
of his wife and enter into a marriage believing that he is committing the offence of bigamy.
Mens rea is there. But if unknown to him his wife died before he married again, inspite of the
mens rea there cannot be an offence of bigamy. Over and above the three ingredients under S.
294(a) of which I will be referring hereafter the above aspects are also factors normally to be
considered in deciding whether commission of a crime is proved or the ingredients exist. But
in these cases while exercising the inherent jurisdiction to quash the proceedings before trial
it will be premature to consider those aspects which will have to be decided on evidence. The
allegations by themselves are not capable of excluding the above ingredients even though it
was argued that mens rea and actus reus cannot be read from the allegations.
158 : 1986 Cri LJ 1120 at page 165
18. Reasonable restrictions on consideration of public order, decency or morality are
intended in the interest of the general public and as such in the interest of public decency and
morality. If a particular performance is against that interest and is capable of depraving and
corrupting those whose minds are open to such immoral influences it will be against public
interest and as such objectionable. The interest of Society will have to tilt the scales in such
cases. Considerations of possible damage to the Society and promotion of public decency and
morality will have to outweigh considerations of the interests of those who are running the
show for profit or those who conduct the performance for livelihood. So also the enjoyment
and satisfaction of those who deserve pleasure by seeing the performances willingly cannot
outweigh the interest of the Society which should be of paramount consideration. The
42
Compendium
argument of Advocate Mr. P.N. Ramakrishnan Nair that there is no allegation of annoyance
does not appear to be correct. It might not have been alleged that any particular individual
was annoyed. The allegation that the acts are capable of annoyance is there. If annoyance
actually caused to anybody has to be proved, on which question I am not expressing any
definite opinion, it could be proved during trial. The allegations definitely cover possibility of
depraving and corrupting those whose minds are open to such immoral influences and the
consequent damage to the society. The gist of what has been laid down in AIR. 1965 SC. 881,
1970 (2) SCR. 80 and 1965 (1) SCR. 65 is that it is obscenity that is capable of depraving and
corrupting those whose minds are open to such immoral influences. Standard of annoyance is
that of an ordinary prudent roan in the contemporary public life having regard to the
standards of contemporary public life.
158 : 1986 Cri LJ 1120 at page 166
21. But anyhow Ss. 87 and 88 of the Indian Penal Code do not come into play in these
cases where interest of the Society is involved. There is no question of crime being obviated
by consent. I do not think I will be able to accept the contention of Mr. P.N. Ramakrishnan
Nair that in these cases even if there could be annoyance to anybody it will create only a
tortuous liability and not any crime. Whether it is possible to consent to a tort which is also a
crime is doubtful. Some assaults are criminal whether or not there is consent. No person can
license another to commit a crime. Even in tort if the transaction consented to is contrary to
public policy consent may well be excluded as a defence. Ordinarily consent can act only as a
waiver against civil action though there are acts which may not be crimes on account of
consent. The cases in hand are not those which could erase the crime by consent of anybody.
In all crimes State is supposed to be the aggrieved party and the Prosecutor especially in
those crimes in which the interest of the society is the prime consideration.
22. If the allegations in the charge-sheets and connected papers are considered it is not
possible to conclude at this stage that the ingredients of S. 294 or 114 of the Indian Penal
Code are not satisfsed. As to whether the petitioners actually committed the offences or not
are matters to be decided by the trial courts after taking evidence. The impugned cases do not
project any abuse of the process of court or any possible miscarriage of justice or harassment.
This court will not be justifed in interfering under the inherent powers. All the petitions are
dismissed.
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Compendium
S.S. Ahluwalia vs. Union of India (UOI) and Ors.
(Before S. Rajendra Babu and S.N. Phukan, JJ.)
S.S. Ahluwalia vs. Union of India (UOI) and Ors. (16.03.2001 - SC) :
MANU/SC/0176/2001
S. Rajendra Babu, J.-

1. In the wake of assassination of Smt. Indira Gandhi on October 31, 1984 there were several
killings of Sikhs in Delhi and other parts of the country between October 31, 1984 till
November 1984 which involved arson, looting and murder. A Committee was constituted
headed by Justice R.N. Misra of this Court which made an inquiry and reported that Sikhs
killed in those riots were 3874 in Delhi, 127 in Kanpur and 69 in Bokaro. Civil Writ Petition
No. 1429 of 1996 titled Bhajan Kaur v. Delhi Administration was filed in the High Court of
Delhi for paying compensation to the dependents of those killed in the riots after the
assassination of Smt. Indira Gandhi as the State had a duty to protect the life of its citizens
and the State ought to pay compensation thereof. The High Court of Delhi by its order dated
July 5, 1996 held that in the expanded meaning attributed to Article 21 of the Constitution it
is the duty of the State to create a climate where members of the society belonging to
different faiths, caste and creed live together and, therefore, the State has a duty to protect
their life, liberty, dignity and worth of an individual which should not be jeopardised or
endangered. If in any circumstance the State is not able to do so, then it cannot escape the
liability to pay compensation to the family of the person killed during riots as his or her life
has been extinguished in clear violation of Article 21 of the Constitution. The High Court,
therefore, directed payment of a sum of Rs. 2 lakhs with interest and also made a general
direction that this direction should apply to similar cases also.
2. Certain claims have been made in para 13.3 of this writ petition setting out certain facts
which need to be verified. After this petition was filed notices were issued to the
Governments of different States and they have filed responses in each one of those cases
stating the steps that have been taken by them in cases where there had been death or other
kinds of violence resulting in injuries or loss of property. But in the nature of the
circumstances of the case, it is very difficult for us to extend the decision of the High Court
44
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of Delhi in Bhajan Kaur v. Delhi Administration (supra) to all the States without making a
detailed examination of the circumstances arising in each case. Such examination cannot be
done by us. Therefore, it would be appropriate for us to direct the High Courts of Delhi,
Rajasthan, Orissa, Punjab & Haryana, Himachal Pradesh, Patna, Madhya Pradesh, Allahabad,
and Bombay in the States of Delhi, Rajasthan, Orissa, Haryana, Himachal Pradesh, Bihar,
Madhya Pradesh, Uttar Pradesh, Maharashtra and Goa to deal with the matter in respect of
the allegations made herein in respect of the State falling in its jurisdiction by treating this
writ petition as a petition filed in that High Court. These proceedings, therefore, shall stand
transferred to the respective High Courts. A copy of the petition with Annexures and response
of the respective State Government shall be sent to the High Court for appropriate action.
3. The writ petition stands disposed of accordingly.
Bandhua Mukti Morcha vs. Union of India (UOI) and Ors, (1984) 3 SCC 161.
(Before P.N.Bhagwati,CJ, R.S. Pathak And Amarendra Nath Sen, JJ)
This extract is taken from Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 :
1984 SCC (L&S) 389 at page 173.
P.N. BHAGWATI, J.— The petitioner is an organisation dedicated to the cause of release
of bonded labourers in the country. The system of bonded labour has been prevalent in
various parts of the country since long prior to the attainment of political freedom and it
constitutes an ugly and shameful feature of our national life. This system based on
exploitation by a few socially and economically powerful persons trading on the misery and
suffering of large number of men and holding them in bondage is a relic of a feudal
hierarchical society which hypocritically proclaims the divinity of man but treats large
masses of people belonging to the lower rungs of the social ladder or economically
impoverished segments of society as dirt and chattel. This system under which one person
can be bonded to provide labour to another for years and years until an alleged debt is
supposed to be wiped out which never seems to happen during the lifetime of the bonded
labourer, is totally incompatible with the new egalitarian socio-economic order which we
have promised to build and it is not only an affront to basic human dignity but also
constitutes gross and revolting violation of constitutional values. The appalling conditions in
which bonded labourers live, not as humans but as serfs, recall to the mind the following lines
45
Compendium
from “Man with the Hoe” which almost seem to have been written with reference to this
neglected and forlorn species of Indian humanity:
“Bowed by the weight of centuries he leans
Upon his hoe and gazes on the ground
The emptiness of ages on his face,
And on his back the burden of the world,”
They are non-beings, exiles of civilization, living a life worse than that of animals, for the
animals are at least free to roam about as they like and they can plunder or grab food
whenever they are hungry but these outcastes of society are held in bondage, robbed of their
freedom and they are consigned to an existence where they have to live either in hovels or
under the open sky and be satisfied with whatever little unwholesome food they can manage
to get, inadequate though it be to fill their hungry stomachs. Not having any choice, they are
driven by poverty and hunger into a life of bondage a dark bottomless pit from which, in a
cruel exploitative society, they cannot hope to be rescued.
1984 SCC (L&S) 389 at page 174.
2. This pernicious practice of bonded labour existed in many States and obviously with
the ushering in of independence, it could not be allowed to continue to blight the national life
any longer and hence, when we framed our Constitution, we enacted Article 23 of the
Constitution which prohibits “traffic inhuman beings and begar and other similar forms of
forced labour” practised by anyone. The system of bonded labour therefore stood prohibited
by Article 23 and there could have been no more solemn and effective prohibition than the
one enacted in the Constitution in Article 23. But, it appears that though the Constitution was
enacted as far back as January 26, 1950 and many years passed since then, no serious effort
was made to give effect to Article 23 and to stamp out the shocking practice of bonded
labour. It was only in 1976 that Parliament enacted the Bonded Labour System (Abolition)
Act, 1976 providing for the abolition of bonded labour system with a view to preventing the
economic and physical exploitation of the weaker sections of the people. But, unfortunately,
as subsequent events have shown and that is borne out also by the report made by the Centre
for Rural Development Administration, Indian Institute of Public Administration to the
Ministry of Labour, Government of India on “Rehabilitation of Bonded Labour in Monghyr
District, Bihar”, the report made by the Public Policy and Planning Division of the Indian
46
Compendium
Institute of Public Administration to the Ministry of Labour, Government of India on

“Evaluation Study of Bonded Labour — Rehabilitation Scheme in Tehri-Garhwal, U.P.”, the
report of Laxmi Dhar Misra, the Director-General (Labour Welfare) of the Government of
India based on On-the-Spot Studies Regarding Identification, Release of Bonded Labourers
and Rehabilitation of Freed Labourers in Uttar Pradesh, Madhya Pradesh, Andhra Pradesh,
Karnataka, Orissa, Bihar, Rajasthan, Tamil Nadu and Kerala and the report of the National
Seminar on “Identification and Rehabilitation of Bonded Labour” held from February 7 to 9,
1983 that the pernicious practice of bonded labour has not yet been totally eradicated from
the national scene and that it continues to disfigure the social and economic life of the
country at certain places. There are still a number of bonded labourers in various parts of the
country and significantly, as pointed out in the report of the National Seminar on
“Identification and Rehabilitation of Bonded Labour” a large number of them belong to
Schedule Castes and Schedule Tribes account for the next largest number while the few who
are not from Scheduled Castes or Scheduled Tribes are generally landless agricultural
labourers. It is absolutely essential — we would unhesitatingly declare that it is a
constitutional imperative — that the bonded labourers must be identified and released from
the shackles of bondage so that they can assimilate themselves in the mainstream of civilised
human society and realise the dignity, beauty and worth of human existence. The process of
identification and release of bonded labourers is a process of discovery and transformation of
non-beings into human-beings and what it involves is eloquently described in the beautiful
lines of Rabindra Nath Tagore in “Kadi and Komal”:
“Into the mouths of these
Dumb, pale and meek
We have to infuse the language of the soul.
Into the hearts of these
Weary and worn, dry and forlorn
We have to minstrel the language of humanity.”
This process of discovery and transformation poses a serious problem since the social and
economic milieu in which it has to be accomplished is dominated by elements hostile to it.
But this problem has to be solved if we want to emancipate those who are living in bondage
and serfdom and make them equal participants in the fruits of freedom and liberty. It is a
problem which needs urgent attention of the Government of India and the State Governments
and when the Directive Principles of State Policy have obligated the Central and the State
47
Compendium
Governments to take steps and adopt measures for the purpose of ensuring social justice to
the have-nots and the handicapped, it is not right on the part of the concerned Governments to
shut their eyes to the inhuman exploitation to which the bonded labourers are subjected. It is
not uncommon to find that the administration in some States is not willing to admit the
existence of bonded labour, even though it exists in their territory and there is
incontrovertible evidence that it does so exist. We fail to see why the administration should
feel shy in admitting the existence of bonded labour, because it is not the existence of bonded
labour that is a slur on the administration but its failure to take note of it and to take all
necessary steps for the purpose of putting an end to the bonded labour system by quickly
identifying, releasing and permanently rehabilitating bonded labourers. What is needed is
determination, dynamism and a sense of social commitment on the part of the administration
to free bonded labourers and rehabilitate them and wipe out this ugly inhuman practice which
is a blot on our national life. What happened recently in the Ranga Reddy District of Andhra
Pradesh as a result of the initiative taken by this Court in Writ Petitions Nos. 1574 of 1982
and 54 of 1983 shows clearly that if the political and administrative apparatus has a sense of
commitment to the constitutional values and is determined to take action for identifying,
releasing and rehabilitating bonded labourers despite pressures and pulls from different
quarters, much can be done for securing emancipation and rehabilitation of bonded labourers.
The District Administration of Ranga Reddy District could in less than six months release
over 3000 bonded labourers from the clutches of contractors in stone quarries in Ranga
Reddy District and send them back to their homes with tickets and pocket expenses. It is
therefore essential that whichever be the State Government it should, where there is bonded
labour, admit the existence of such bonded labour and make all possible efforts to eradicate it.
By doing so, it will not only be performing a humanitarian function but also discharging a
constitutional obligation and strengthening the foundations of participatory democracy in the
country.
14. Moreover, when a complaint is made on behalf of workmen that they are held in bondage
and are working and living in miserable conditions without any proper or adequate shelter
over their heads, without any protection against sun and rain, without two square meals per
day and with only dirty water from a nullah to drink, it is difficult to appreciate how such a
complaint can be thrown out on the ground that it is not violative of the fundamental right of
the workmen.
It is the fundamental right of every one in this country,
48
Compendium
assured under the interpretation given to Article 21 by this Court in Francis Mullen's case, to
live with human dignity, free from exploitation.
This right to live with human dignity enshrined in Article 21 derives its life breath from the
Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and
Articles 41 and 42 and at the least, therefore, it must include protection of the health and
strength of workers men and women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in a healthy manner and in conditions of
freedom and dignity, educational facilities, just and humane conditions of work and maternity
relief. These are the minimum requirements which must exist in order to enable a person to
live with human dignity
and no State neither the Central Government nor any State Government-has the right to take
any action which will deprive a person of the enjoyment of these basic essentials.
1984 SCC (L&S) 389 at page 242.
81. I may incidentally observe that as a result of such action on the part of the Court
attention of the appropriate authorities concerned has in a number of cases been pointedly
drawn to the existence of bonded labourers in various parts of the country and to their
miserable plight and a large number of bonded labourers have been freed from their bondage.
To my mind, the litigation of this type particularly in relation to bonded labourers is really not
in nature of an adversary litigation and it becomes the duty of the State and also of the
appropriate authorities to offer its best cooperation to see that this evil practice which has
been declared illegal is ended at the earliest. The existence of bonded labour in the country is
an unfortunate fact. Whenever there is any allegation of the existence of bonded labour in any
particular State, the State instead of seeking to come out with a case of denial of such
existence on the basis of a feeling that the existence of bonded labour in the State may cast a
slur or stigma on its administrative machinery, should cause effective enquiries to be made
into the matter and if the matter is pending in this Court, should cooperate with this Court to
see that death-knell is sounded on this illegal system which constitutes a veritable social
menace and stands in the way of healthy development of the nation.
82. For reasons aforesaid, I do not find any merit in the preliminary objections raised and
I agree with my learned Brother that the preliminary objections must be overruled.
49
Compendium
83. On the merits of the case my learned Brother Bhagwati, J. has in his judgment
carefully and elaborately discussed all the aspects. Apart from the principal grievance made
that the workmen in the instant case are bonded labourers, various grievances on behalf of the
workmen have been voiced and denial to the workmen of various other just rights has been
alleged. The grievance .of denial of other just rights to the workmen and the reliefs claimed
for giving the workmen the benefits to which they may be entitled under various legislations
enacted for their welfare are more or less in the nature of consequential reliefs incidental to
the main relief of freedom from bonded and forced labour to which the workmen are
subjected. I must frankly confess that in the facts and circumstances of this case I have some
doubts as to the applicability of the provisions of Inter-State Migrant Workmen (Regulation
of Employment and Conditions of Service) Act, 1979. The views expressed by my learned
Brother Bhagwati, J. in his judgment, to my mind, do not amount to any adjudication on the
question of applicability of the Inter-State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979. The observations made by my learned Brother Bhagwati, J.
and the directions given by him on the various aspects with regard to the merits of the case
after carefully considering the provisions of all the relevant labour legislations enacted for the
benefit of labourers and for improvement and betterment of their lot, are for furthering the
interests of the workmen and for proper protection and preservation of their just rights and to
enable the appropriate authorities to take necessary action in the matter. As I am in agreement
with the views expressed by my learned Brother Bhagwati, J. I do not propose to deal with
these aspects at any length and I content myself by expressing my agreement with the
judgment of my learned Brother Bhagwati, J. on these matters.
50
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3rd C.

L Agrawal Memorial Moot Court Competition, 2019

Of the Cases Cited

On behalf of the Respondents in the matter of

Mr. Kishan Juneja & Ors………………….………………………Appellant

Central Baord of Film Certification & Ors……………………Respondent

Ranjit D. Udeshi, 1965 AIR 881, 1965 SCR (1) 65.

(Before R.S Pathak and A.N Sen, JJ)

K.A. Abbas v. Union of India, AIR 1978 SC 597.

Bobby Art International V. Mahendar Pal Singh Hoon, (1996) 4 SCC 1.

S.P. BHARUCHA, J.— Special leave granted.

B.K. Adarsh v. Union of India, 1989 SCC OnLine AP 154.

(Before T.S Sivagnanam, J)

a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion

(Before P. Jaganmohan Reddy, J)

Aveek Sarkar v State of West Bengal, (2014) 4 SCC 257.

(Before Subrata Talukdar, J)

(Before Markandeya Katju, C.J and Madan B. Lokur, J)

Retired Employees of non-Government College Association v. State of Maharashtra,

(Before C.S Dharmadhikari and H.W Dhawe, JJ)

This extract is taken from Retired Employees of non-Government College Association v.

2. The petitioner 1 is an association of the employees of the non-Government colleges in

This extract is taken from Retired Employees of non-Government College Association v.

This extract is taken from Retired Employees of non-Government College Association v.

Babulal Parate v. State of Maharashtra, (1961) 3 SCR 423.

Ram Nandan V. State, 1958 SCC OnLine All 117.

(Before M.C Desai, R.N Gurtu and N.U Baig, JJ)

M.B. Cotton Assn. Ltd. v. Union of India, AIR 1954 SC 634.

State of Bombay v. F.N. Balsara, 1951 SCR 682

M. PATANJALI SASTRI, J.:— I agree and have nothing more to add.

State of Madras v. V.G. Row, 1952 SCR 597

Deepa v. S.I. of Police, 1985 SCC OnLine Ker 285

(Before Padmanabhan, J.)

S.S. Ahluwalia vs. Union of India (UOI) and Ors.

(Before S. Rajendra Babu and S.N. Phukan, JJ.)

S. Rajendra Babu, J.-

(Before P.N.Bhagwati,CJ, R.S. Pathak And Amarendra Nath Sen, JJ)

Institute of Public Administration to the Ministry of Labour, Government of India on

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