STATE OF KARNATAKA v. DODDASIDDEGOWDA — 1980 DIGILAW 194 (KAR)

( 1 ) IN this appeal, by the State, the order of acquittal dated 5-6-1979 passed by the sessions Judge, Mandya, in Criminal Appeal no. 2 of 1979, acquitting the respondent -accused of having committed the offence punishable under S. 16 of the karnataka Cinemas (Regulation) Act, 1964 (hereinafter referred to as the Act) is challenged. ( 2 ) THE respondent was prosecuted in CC no. 1505 of 1977 en the file of the Add1. Chief Judicial Magistrate, Mandya, for having committed the aforementioned offence on the allegation that on 2-7-1977 he being the proprietor of Jayalakshmi talkies in Guthal Colony, Mandya City, had exhibited a Kannada film called 'tab- baliyu Neenade Magane' in his theatre without a valid licence. The Magistrate convicted the respondent-accused for having -committed the said offence and sentenced to pay a fine of Rs. 350. S. 16 of the act provides for imposition of a fine which may extend to Rs. 1000 and in case of a continuing offence, with a further fine, which may extend to Rs. 100 for each day during which the offence continues. ( 3 ) THE substance of the accusation was read over and explained to the respondent accused and the accused was asked to show cause as to why he should not be convicted for the said offence. He pleaded not guilty. In this connection we consider it necessary to deal with one contention of sri H. S Kempanna, learned counsel appearing on. behalf of the respondent-ace. used, that the plea is not in accordance with the provisions of S. 251 of Crl. P. C. as what is required by the said provision is that the accused should be asked whether he pleads guilty or has any defence to make, When superficially examined, this contention appears to have some force. The way the substance of the accusation has been put and the respondent accused has been asked to show cause why he should not be convicted shows that the Magistrate had in his mind the provisions of S. 242 of Crl. P. C. 1898 and not the provisions of S. 251 of the Code of Criminal Procedure, 1973. But we are unble to accede to the contention of Sri kempanna, because the accused has not been misled and prejudiced since he has not pleaded guilty to the offence. P. C. 1898 and not the provisions of S. 251 of the Code of Criminal Procedure, 1973. But we are unble to accede to the contention of Sri kempanna, because the accused has not been misled and prejudiced since he has not pleaded guilty to the offence. In support of the prosecution case p. W. 1 Ananda Rao, who was working as sub-Inspector of Police at the relevant point of time, P. W. 2 Mani, a clerk in p. E. S College, Mandya, P. W. 3 Mad- iah, a milk vendor, P. W. 4 Kotchappa, a supplier in the canteen of Jayalakshmi theatre and P. W. 5 Doddalingaiah, an agriculturist, were examined. P. W. 1 has sworn that he visited the theatre on 2-7-1977 and found that the kannada picture 'tabbali Neenade Magane' was being screened. He has further sworn that he had questioned the Manager who was present in the said theatre at that time and requested him to produce the licence. The manager produced the licence which disclosed that it had expired on 30-6-1977- It is at Ex. P. 2. The counterfoils of the tickets sold-M. Os. 1 to 4-and Ex. P. 2, the licence were seized under Ex. P. 1. Thereafter P. W. 1 filed his complaint-Ex. P. 4-in the form of first information report. P. W. 2 has not supported the prosecution case. He is supposed to be one of the attestors of the panchanama. P. W. 3 has supported the prosecution inasmuch as he has spoken to the seizure of the aforementioned licence and the counterfoils of the tickets. P. W. 4 has sworn that the said picture was exhibited in the afore mentioned theatre and many persons were witnessing the picture. He has further stated that Channabasappa manager was present and he himself attested the mahazar Ex. P 1. P. W. 5 has sworn that he had visited the theatre on that day and was seeing the picture. When he was called out to act as a panch, he acted as such and had witnessed the seizure of articles as narrated by P. W. 1 and attested the panchanama Ex. P, 1. ( 4 ) THE Sessions Judge has, in the first instance, reasoned that only the Manager channabasappa-was present in the theatre and therefore it could not be said that the proprietor, namely, the accused was responsible for screening of the said picture. P, 1. ( 4 ) THE Sessions Judge has, in the first instance, reasoned that only the Manager channabasappa-was present in the theatre and therefore it could not be said that the proprietor, namely, the accused was responsible for screening of the said picture. No ordinary prudent person can accept this reasoning. The Manager was acting in his capacity as Manager. The proceeds of the tickets sold were for the benefit of the proprietor of the theatre, namely, the accused. There cannot be any dispute about it. It is common knowledge. The next reasoniag of the Sessions Judge is rather confusing. He has made it appear that Rule 86 of the Karnataka Cinemas (Regulation) Rules, 1971 (hearin after referred to as 'the Rules') provides for issue of a temporary permit in Form 'h' if an application is made for the regrant of licence under Rule 85, and, therefore, Rule 86 does not by itself create any penal provision. ( 5 ) ACCORDING to him S. 5 of the Act deals with exhibition of film and it enjoins that any person who intends to exhibit a film has to obtain a licence for exhibition of cinematograph films. Further on, according to him, S. 16 of the Act provides that if the owner or person in charge of a cinematograph uses the same or allows it to be used, or if the owner or occupier of any place permits or suffers that place to be used, in contravention of the provisions of the Act or of the rules made thereunder or of any of the conditions and restrictions upon or subject to which any licence or permission has been granted under the Act, shall, on conviction, be punished with fine which may extend to Rs. 1000 or in the case of a continuing offence, with a further fine, which may extend to Rs. 100 for each day during which the offence continues. On this basis he has concluded that the proprietor respondent accused had not committed the offence The reasoning is on the face of it confusing. In fact, confusion in the mind of the Sessions Judge is confounded. S. 5 of the Act makes it incumbent on a person, intending to give exhibition of cinematograph, to take a licence by making necessary application. In fact, confusion in the mind of the Sessions Judge is confounded. S. 5 of the Act makes it incumbent on a person, intending to give exhibition of cinematograph, to take a licence by making necessary application. S. 16 of the act provides that breach of any of the provisions of the Act and the rules made thereunder is an offence and is punishable as aforesaid. Therefore, this reasoning of the Sessions Judge cannot at all be accepted. ( 6 ) THE last and the strongest reason put forth by the Sessions Judge is that the act makes the offence a non-cognizable offence, but P. W. 1 had investigated into it before securing permission of the concerned magistrate and therefore the prosecution was bad in law in view of S. 155 (2) Crl. P. C. What is provided in the explanation to S. 2 (d)Crjp. C. 1973 has been totally ignored by the Sessions Judge and all concerned. S. 2 (d) Crl. P. C. , 1973. including the Explanation reads as follows :"2 (D) 'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a plice report ; explanation-A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. " ( 7 ) THEREFORE, Ex. P-4 submitted by PW. 1 is deemed to be a complaint under S. 2 (d) cr. P. C. , in view of the Explanation of s. 2 (d) Crp. C. Hence this reasoning of the Sessions Judge is not tenable in law. It might have been tenable if the provisions of the Code of Criminal Procedure 1898 fold Code) were to be applicable. But the offence being of July 1977, the provisions of the old Code would not be applicable. ( 8 ) IN view of the foregoing reasons, we hold that the Se-sions Judge was not right in allowing Crla. No. 2 of 1979 and acquitting the respondent-accused. Hence we allow the appeal and set aside the order of acquittal dt. But the offence being of July 1977, the provisions of the old Code would not be applicable. ( 8 ) IN view of the foregoing reasons, we hold that the Se-sions Judge was not right in allowing Crla. No. 2 of 1979 and acquitting the respondent-accused. Hence we allow the appeal and set aside the order of acquittal dt. 5 6-1979 passed by the Sessions Judge, Mandya, in Criminal appeal No. 2 of 1979 and restore the conviction and sentence passed on the respondent-accused by the additional chief Judicial Magistrate, Mandya, in c. C. No. 1505/1977. --- *** --- .