JUDGMENT 1. - This case has a chequered history. The case came up for confirmation of order before me as early as 9.7.90. Learned counsel for the petitioner wanted to file a list of similar cases concerning the same Act within a week but that was not done and the case came up again for orders on 8th Oct., 1990 when it was ordered that the case shall be finally disposed of at the orders stage. Learned counsel made certain arguments and concluded his submissions without furnishing the list of other cases and the list of cases which he intended to rely orally during the course of arguments. When I set up to dictate the order, I found that nothing has been produced and therefore, directed the office to list the case again in the Court. It was given to understand thereafter that other similar cases have been disposed of but that too was not substantiated thereafter. I, therefore, heard rest of the arguments and decide this case today even in the absence of any further material being placed before me since matter is inordinately delayed for want of material to be produced. 2. The petitioner in this writ petition has challenged the action of the respondents restraining him from exhibiting the Video Cassetters in Shekhawati Restaurant with a further prayer that the respondents shall be directed not to demand re-certification of Censor Board Certificate and re-Certificate of the Copyright Act, 1957 as amended from time to time. The petitioner is running a restaurant in name and style of Shekhawati Restaurant in Udaipurvati where for the purposes of recreation of his customers exhibiting films by using VCR and Video Casetters. According to him, no licence is required for the purpose of exhibition of films through a VCR/VCP, he cannot be restrained from exhibiting he film and since the Station House Officer, Police Station, Udaipurvati is trying n restraining exhibiting the films and mounting pressure for restraining the same e filed this writ petition. His case is that the Video Cassetters which he possesses and exhibits have a declaration from the producer of Video cassettes to the extent that they have obtained necessary licence and consent from owner/.colder of the film for making a video cassettes tap. 3. His case is that the Video Cassetters which he possesses and exhibits have a declaration from the producer of Video cassettes to the extent that they have obtained necessary licence and consent from owner/.colder of the film for making a video cassettes tap. 3. Notice of the writ petition was issued and the respondents in the reply have submitted that the petitioner is obliged to obtain the certification for exhibition of the films in the restaurant. Their case is that the films are being exhibited with the help of the generator and are shown on the big screens. This exhibition of the film though may be taken on Video cassettes but shown commercially after charging the money for exhibition of the film amounts to exhibition of films and it is violation of Cinematograph Act and Rules made thereunder. It is submitted that cases have been registered against the son of the. petitioner under Section 7(1)(c) of the Cinematograph Act and Sections 51 and 52 of the Copyright Act. It is further submitted that several video parlours are being opened in the State where the only business carried out is exhibiting the films. Opening of such Video parlours exhibiting the film where films are exhibited on the big screens like that in cinema hall for payment of charges is only an alternate to defeat the requirements of law which are meant for exhibiting the films in a cinema hall. 4. During the course of arguments it was argued on behalf of the State that big halls are being constructed for exhibiting the films therein on payment of cost and the owners of the video parlours neither obtained licence under Cinematograph Act nor fulfil the requirements meant for construction of a Cinema Hall nor pay the entertainment tax as required by law, it is, therefore, submitted that no definite guidelines have been provided so far by any court. 5. I have given my thoughtful consideration to the rival submissions and perused the record. 6. Before deciding the controversy in the present case, it is essential to go through certain provisions of the relevant Act and the Rules made thereunder besides certain other laws, which have a bearing on exhibiting films in video parlour. 7. 5. I have given my thoughtful consideration to the rival submissions and perused the record. 6. Before deciding the controversy in the present case, it is essential to go through certain provisions of the relevant Act and the Rules made thereunder besides certain other laws, which have a bearing on exhibiting films in video parlour. 7. Sections 5-A and 5-B of the Cinematograph Act, 1952 (hereinafter referred to as 'the Act, 1952') are reproduced here under: "5-A. Certificate of films-(1) If, after examining a film or having it examined in the prescribed manner, the Board considers that - (a) the film is suitable for unrestricted public exhibition or, as the case may be, for unrestricted public exhibition with an endorsement of the nature mentioned in the proviso to Clause (i) of sub-section (1) of section 4, it shall grant to the person applying for a certificate in respect of the film an 'U' certificate or as the case may be an 'UA' certificate; or (b) the film is not suitable for unrestricted public exhibition, but is suitable for public exhibition restricted to adults or, as the case may be, is suitable for public exhibition restricted to members of any profession or any class of persons it shall grant the person applying for certificate in respect of the film an 'A' certificate or, as the case may be, a 'S' certificate; and cause the film to be so marked in the prescribed manner: Provided that the applicant for the certificate, any distributor or exhibitor or any other person, to whom the rights in the film have passed shall not be liable for punishment under any law relating to obscenity in respect of any matter contained in the film for which certificate has been granted under clause (a) or Clause (b). (2) A certificate granted or an order refusing to grant a certificate in respect of any film shall be published in the Gazette of India. (3) Subject to the other provisions contained in this Act, a certificate granted by the Board under this section shall be valid through out India for a period of ten years." .... .... .... .... (2) A certificate granted or an order refusing to grant a certificate in respect of any film shall be published in the Gazette of India. (3) Subject to the other provisions contained in this Act, a certificate granted by the Board under this section shall be valid through out India for a period of ten years." .... .... .... .... "5-B. Principle for guidance in certifying films: (1) A film shall not be certified for public exhibition if, in the opinion of the authority-competent to grant the certificate, the film or any part of it is against the interest of the soveriegnity and integrity of India the security of the State, friendly relations with foreign States, Public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence. (2) Subject to the provisions contained in sub-section (1), the Central Government may issue directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition." Rule 30 of the Cinematograph (Certification) Rules, 1983 is reproduced here under : "30. Compliance with Section 5-A-(1) The manner of notification to the distributor or exhibitor for the purpose of section 5-A, shall be by delivery of a duplicate copy of the certificate (Containing both parts I and II thereof) with each copy of the certified film to be distributed or exhibited: Provided that in the case of video film, a copy of Part-1 of the certificate showing the serial number, the category and other details should be pasted on every video cassette as well as on its case. (2) The provisions of sub-rule (1) shall apply in relation to an amendment of a certificate in respect of a film as it applied in relation to the certificate itself; (3) The duplicate-copy of the certificate of a film referred to in sub-rule (1) shall accompany the film and be prominently exhibited in the theatre on all days on which the film is exhibited therein." Rule 21 of the Rules, 1983 deals with the application for examination of films. 8. Before going into the legal position, it may be stated that the production of the video films has started from recent past and, therefore, there were no provisions earlier under any law concerning the same. 8. Before going into the legal position, it may be stated that the production of the video films has started from recent past and, therefore, there were no provisions earlier under any law concerning the same. It is only by virtue of provisions of Rule 30 that certification is required in form-IV-A by the producer of the film. Form IV-A, which is under Rule 35(1), is a certificate for video films for restricted public exhibition. It has two parts; in the first part, name of the film, running time, number of cassettes, certificate number, date of issue and date of expiry are required to be mentioned, while second part contains the particulars of exhibition and modification subject to which the certificate has been granted. It includes the declaration that the certificate has been issued in accordance with Rule 35 of the Rule, 1983 framed under the Act, 1952, that it is valid only in respect of the video films, then it contains the name of the applicant, name of the producer and the date of issue. Thus, the form contains all the details required regarding the video cassettes for exhibition and it is required to be pasted on the cover of the video cassetes. For obtaining the aforesaid form, it is essential to go through the procedure, which has been mentioned in Rule 21 of the Rules, 1983, which is required to be accompanied by other formalities, like paying the prescribed fee as contemplated by Rule 36 and consideration of the case under the Copy Right Act and if need be, for consideration of fresh certificate under Sub-Rule (2) of Rule 29. It may also be mentioned here that a statutory declaration required under Section 52(A) of the Copy Right Act has also to be mentioned on the cover of the cassette wherein it has to be declared on affidavit that video cassette VHS copy is the exact copy of the original film as censured by the Censure Board of India, as per the original certificate issued. It also contains the statutory declaration besides statutory warnings where ever is applicable. 9. Before I proceed to examine the matter further, it would be purposeful to quote the copy of the letter issued by the Government of Rajasthan on 10th Feb., 1986, which reads as under : "GOVERNMENT OF RAJASTHAN HOME (Group-V) DEPARTMENT. No. F.1/7(17)Home-V/85 Jaipur, Dated 10th February, 86. 9. Before I proceed to examine the matter further, it would be purposeful to quote the copy of the letter issued by the Government of Rajasthan on 10th Feb., 1986, which reads as under : "GOVERNMENT OF RAJASTHAN HOME (Group-V) DEPARTMENT. No. F.1/7(17)Home-V/85 Jaipur, Dated 10th February, 86. To, The District Magistrate, Dholpur. Sub: Grant of licence for VCRs/VCPs. Sir, I am directed to refere to your letter No. 22(2) Judl/85/3094, dated 11.9.1985 on the above subject, and to say that since the Rajasthan Cinema Regulations Act, 1952 has not been amended, strictly speaking no licence is required from exhibition of films through VCRs/VCPs legally. However, the District Magistrate, for administrative reasons and in public interest, are issuing such licences of their own in usual form with such additional conditions as may be necessary to regulate exhibition in larger public interest. In the absence of legal requirement to have a 'licence, the Videos cannot be seized for this reason. The State Government is shortly coming with THE RAJASTHAN VIDEO FILMS (REGULATION) ACT', which provides for regulation of exhibition on VIDIEOs. However, it may be noted that there are two other provisions-(1) the amended Cinematograph (Certification) Rules, 1983 whereby only the films certified as such for exhibition in VIDEOS BY THE BOARD OF FILM CERTIFICATION for Videos can be exhibited; and (2) the compliance of the Copy Right (Amendment) Act, 1984 under which action can be taken against those contravening the provisions of the aforesaid Rules and Act. Thus, it may be clarified that while a VIDEO found exhibiting films without a licence cannot be seized, action of seizure as per law can be taken if it is found exhibiting unidentified films and where the compliance under amended Copy Right Act has not been done. Yours' faithfully, Sd/ (S. C. Pagoria) Deputy Secretary to the Govt."The entire matter came up for consideration of this Court in Ghoomar Cafe and 37 others v. State of Rajasthan and others, 1986(2) WLN 748 , wherein my learned brother Hon'ble Mr. Justice A.K. Mathur thread-bare dealt with the various provisions of law and held as under:- "With the advancement of modern technology, the film would mean a TV film as well and, therefore, if any film may be exhibited in the Cinema or may be exhibited on TV screen, then both have to be properly certified whether such films are fit for exhibition or not. Thus, it cannot be said that the amended proviso to rule 30 is beyond the scope of the provisions of sections 5A and 5B of the Act.The amended proviso to rule 30 can be read harmoniously with sections 5A and 5B and every T.V. film which is produced by the producer has to obtain a certificate from the Censor Board as required under Rule 21." ... ... ... ... The T.V. films which are produced by the producers are required to undergo necessary certification in terms of sections 5A and 5B read with rule 21 and such certification cannot be said to violate freedom of business of the petitioner and as such it cannot be said that the certification of the video films is violative of Articles 19(1) (a) and 19(1)(g) of the Constitution. ... ... ... ... "The celluloid films which are converted into T.V. films for exhibition on T.V. does not require re-certification. Once a celluloid film has already been produced and same has been duly certified by Censor Board then it will be an idle formality to send that T.V. films to the Censor Board for re-certification. Once the celluloid film has been certified then that film still carries the certificate and that certificate can be exhibited and same can also be pasted on the video cassete case as required in Form IV-A. That will be a sufficient compliance of the amended proviso to rule 30." ... ... ... ... "The Copy Right Act and the Cinematograph Act, 1952 have different areas of operation. Under the Cinematograph Act what is checked is that the films which are being exhibited should not harm the public order, decency and morality and other considerations which are contained in Section 5-B........As against this the Copyright Act has a different purpose and which saves the producers from piracy. Thus, while interpreting the amended proviso to r.30 the consideration of Copyright Act are absolutely different from the considerations contained in the Cinematograph Act and the rules made thereunder." 10. In Tamilnadu, the State Government enacted Tamilnadu Exhibition of Films on TV Screen through Video Cassette Recorder (Regulation) Act. Vires of certain provisions of the aforesaid Act came up for consideration before the Division Bench of Madras High Court in the case of Entertaining Enterprises, Madras and others v. State of Tamil Nadu and another, AIR 1984 Madras 278 . In Tamilnadu, the State Government enacted Tamilnadu Exhibition of Films on TV Screen through Video Cassette Recorder (Regulation) Act. Vires of certain provisions of the aforesaid Act came up for consideration before the Division Bench of Madras High Court in the case of Entertaining Enterprises, Madras and others v. State of Tamil Nadu and another, AIR 1984 Madras 278 . The Court came to the conclusion that the impugned legislation passed by the State Legislature falls within Entry 33 of List-II of Schedule-VII of the Constitution of India and the State Legislature had, therefore, legislative competence. It further considered Sections 9(2) and 10 of the aforesaid Act about its validity. In view of the provisions of the Copy Right Act and the Central Cinematograph Act, the Court held as under:Section 9(2) is not a mere incidental encroachment on the entry "Copyright" falling in List I, but it amounts to an addition to the provisions of the Copyright Act and, therefore, it falls outside the permitted limit of encroachment and as such, it should be taken to be ultra vires. Section 9(2) is not in-any way connected with the collection of entertainment tax. A reading of Section 9(2) will clearly show that it has nothing to do with the levy, assessment or collection of entertainment tax. The said section merely enables the owner of the copyright to stipulate conditions for parting away with the so-called copyright in the video films and it does not provide for any improvement of the State revenues, for, insisting a consent letter from the owner of the copyright does not in any way, improve the State revenues. It cannot be disputed that Section 9(2) proceeds on the basis that the owner of the cinematograph film which as been recorded in the VCR is also a owner of the copyright in the video film. In the guise of an incidental provision, the State Legislature has practically amended the Copyright Act, in that they have made the infringement of the copyright a cognizable of- fence, and has provided more serious punishment for such infringement. If the legislature wanted to invoke the provisions of the Copyright Act for infringement of a copyright in a video film, it could refer to the relevant provisions of the Copyright Act and deal with the infringement of the copyright on the same basis as an infringement under the Copyright Act. If the legislature wanted to invoke the provisions of the Copyright Act for infringement of a copyright in a video film, it could refer to the relevant provisions of the Copyright Act and deal with the infringement of the copyright on the same basis as an infringement under the Copyright Act. If the intention of the Legislature is to see that the owner of the video library carries on his business lawfully, it is not necessary for making the infringement a cognizable offence, while an infringement of a copyright under the Copyright Act is not a cognizable offence. Providing for a more serious punishment than what is done under the Copyright Act is virtually making an addition to the provisions of the Copyright Act. In this view of the matter, the Legislature has done indirectly what it cannot do directly, and that will amount to a colourable exercise of power. As such Section 9(2) should be considered to be ultra vires as it is clearly severable from the other sections of the Act." ... ... ... .... "Having regard to the fact that the provisions of the Cinematograph Certification Rules, 1983 do not contemplate the certification of a video film for private exhibitions it the residence of the members of the video library, the requirement of the production of a certificate in respect of video films hired out by a video library.to its members under Section 10(2) is invalid. Certification is contemplated in the Certification Rules, only if an applicant for certification intends to use the video film for public exhibition and not when he does not intend to do so. Thus, the insistence on certification under the Act and the Rules framed thereunder is not valid. A video library which merely hires out to its members a video film for their own use and not for public show or exhibition cannot approach the Censor Board for a Certificate, for the owner of the library does not intend to use the video tape for public exhibition. In this view of the matter, Section 10(2) is not only invalid but unworkable." 11. My brother Hon'ble Mr. In this view of the matter, Section 10(2) is not only invalid but unworkable." 11. My brother Hon'ble Mr. Jultice D.L. Mehta in the case of Manoranjan Hotel Disco v. State of Rajasthan and another, 1983 RLR 581 , considered the meaning of magnetic tapes and video cassettes and held that petitioner cannot exhibit the films as defined under Rule 3(G) of the Cinematograph Rules, 1948 by any means including the VCR. He further held that the petitioner is entitled to exhibit the video cassette which are based on magnetic tapes and which do not fall within the purview of Rule Section 3(G) of the Rules. 12. In Anand Jaiswal v. State of Madhya Pradesh and others, AIR 1987 MP 96 , a Division Bench of the Madhya Pradesh High Court considered the questions of payment of entertainment tax and exhibition of the films. A' question also arose about the cancellation of the licence and the renewal thereof since the refusal was made on the ground that licencee was exhibiting films through a projection unit. The contentions raised on behalf of the State Government were repealed and the order cancelling the petitioner's licence was quashed on various grounds. 13. In Surajmal Jain and another v. State of Orissa, 1989 Cri. L.J. 1960 , the question was as to whether the VCR, T.V., screen and other apparatus can be seized for violation of the provisions of Cinematograph Act and the Copy Right Act and answering the limited question, the Court held that at best the uncertified films, if it was there could be seized and not the other apparatus. 14. In Anand Jaiswal v. District Magistrate, Shahdol, 1989 Jabalpur Law Journal 562 , the Court held that Government can restrict the size of the screen by an executive order nor the conditions of licence depriving trade and business can be ordered. In that case, licence was refused for exhibiting the films in video parlours in a videotorium having capacity of 160 persons and the Court considered all the previous cases decided by the High Court and other High Courts and held that the circulars issued by the State Government cancelling the video licence on the ground of violation of the order was struck down. 15. 15. Having gone through the aforesaid case law, I have no doubt in my mind that in this age when the technologies are growing fast and video cassettes having range of all types of subjects are flooding the market which not only contain entertaining material but the material which is of great educative values, based on historical themes, classic fictions, classical music, Indian as well as Western, Pop, Jazz and Morgart to instrumental and choers, cartoon films for children, nursery ryhms, ecology and environment, wild life to weather man's achievements and innumerable other subjects including imparting education by U.G.C. and other bodies. There can be no restriction on any video parlours and they should be permitted to exhibit all sort of films except those prohibited by law and not covered by certificate under Cinematograph Act and is not in violation of Copy Right Act. Not only the youth has to be kept away from blue films and strict vigilance is essential but the function of the piracy has also to be restricted. The State machinery, therefore, has only to regulate the exhibition of films in video parlours and not to restrict it. The regularisation has to be within four corners of law and restriction should only be placed when there is gross violation of Cinematograph Act or the Copy Right Act or the Rajasthan Video Films (Regulations) Act or the rules made thereunder. I am in complete agreement with the view taken by this court in Ghoomer Cafe's case. However, it may be mentioned that each case has to be decided on its own merits in case a charge- sheet is filed for violation of any of the provisions of law and the same cannot bet gone into in extraordinary jurisdiction. It is neither the intention of any law nor is permissible that unnecessary obstacles be placed in the way of exhibition and they may be harassed and humiliated. Police authorities must act with restrain and not to put day-to-day hurdles before the exhibitors of the films. They are not required to seize either TV or the projector or the screen or other material connected with the exhibition of film except the objectionable films, video or literature etc. 16. Police authorities must act with restrain and not to put day-to-day hurdles before the exhibitors of the films. They are not required to seize either TV or the projector or the screen or other material connected with the exhibition of film except the objectionable films, video or literature etc. 16. Coming to the facts of the present case, since the matter is subjudice before the criminal court, it is not appropriate for this court to issue any direction in extra ordinary jurisdiction. My learned brother Hon'ble N.C. Sharma, J. had already directed that VCRs and the TVs may not be seized by the respondents even when there is violation of the provisions of law and no further order is required to be passed. In fact, one can only hemoan about the knowledge possessed by some of the functionaries of the State about the material used for exhibiting the films. It is borne out from the reply in this case and the papers prepared by the police that they are ignorant about fundamentals of articles of electric and their use. They do not even understand the distinction between stabliser, projector and generator. Generators and the stablisers are connected with the production and consistently maintaining of electricity and the functioning of these two has no relation whatsoever with the exhibition of the film as such. It is thus essential that any authority raiding the video parlours must know the functions first and unless one is assured about the functioning of each of the material, no restriction should be placed in the way of exhibitors by them also else they would lead themselves in trouble some day. As I have already mentioned above that the matter is subjudice before the criminal court, I would not like to express any opinion on the merits of this case and for that the petitioner may invoke the provisions of Section 482 Criminal Procedure Code, for quashing the proceedings if so advised. Suffice it to observe here that nothing contrary to the provisions of law shall be done against the petitioner in future. It behoves the State to issue suitable directions to various authorities including police. 17. This writ petition is disposed of with the aforesaid observations.Petition disposed of with observations. *******