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1996 DIGILAW 1425 (RAJ)

GOPAL v. STATE OF RAJASTHAN

1996-12-18

A.K.SINGH

body1996
Judgment A. K. SINGH, J. ( 1 ) HEARD the learned counsel for the petitioner and learned Public Prosecutor for the State. ( 2 ) THIS Criminal miscellaneous petition under Section 482 of the Criminal Procedure Code is directed against the judgment dated 4th August, 1990 passed by the learned Chief Judicial Magistrate, Barmer in Criminal Regular Case No. 433/87 State v. Gopal whereby the petitioner Gopal was convicted under Sections 52-A read with 68a of the Copy Rights Act, 1957 and was sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 1,000/- and to further undergo simple imprisonment for 2 months for default in payment of fine. Feeling aggrieved by the aforesaid judgment passed by the learned Chief Judicial Magistrate, Barmer the petitioner has moved this petition under Section 482 of the Criminal Procedure Code and prayed that the conviction as well as sentence passed by the learned Chief Judicial Magistrate, Barmer be quashed and set aside. ( 3 ) IN the petition filed by the petitioner in this case it has been stated that according to prosecution on 27th January, 1987 at about 4. 00 p. m. Mohanlal proprietor of Amber Talkies, Barmer lodged a First Information Report to the effect that a video was being operated in Mayoor Hotel and on video the film (Loha) was being shown and since the film had been released on 29th December, 1986, the film could not be exhibited at any other public place under the Copy Rights Act and that the cassette of the aforesaid film had been stolen. It was also prayed in the First Information Report that the exhibition of the film outside the cinema be stopped because it had adversely affected the cinema business and tax payable to the Government was also being evaded. On the basis of the report lodged by Mohanlal the Police registered a case, and the Police Officer went to Mayoor Hotel where the film "loha" was being shown to 80 persons who were possessing tickets. The video cassette of the film Loha was seized by the Police and after investigation challan was submitted in the Court of learned Chief Judicial Magistrate, Barmer against the accused Gopal who is petitioner in this case. The video cassette of the film Loha was seized by the Police and after investigation challan was submitted in the Court of learned Chief Judicial Magistrate, Barmer against the accused Gopal who is petitioner in this case. It was also stated in the petition that on the same day another case of similar nature was registered against Ramchandra and in that case also after investigation the Police submitted a report under Section 173 of the Criminal Procedure Code in the Court of learned Chief Judicial Magistrate, Barmer and in spite of the fact that evidence which was produced in that case was similar to the evidence which was produced in the case filed by the petitioner, the accused Ramchandra was acquitted by the learned Chief Judicial Magistrate, Barmer by his judgment dated 28th July, 1989. The number of case in which Ramchandra was tried was Criminal Regular Case No. 432/87. Thus according to the petitioner two cases of similar nature were registered by the Police under Sections 52-A and 68-A of the Copy Rights Act one was against the petitioner Gopal and the other was against Ramchandra. Both the cases were heard by the learned Chief Judicial at Magistrate, Barmer and evidence in both the cases was similar. In Criminal Regular Case No. 432/87 the accused Ramchandra was acquitted. But in Criminal Regular Case No. 433/87 State v. Gopal the accused Gopal was convicted and sentenced as mentioned above. ( 4 ) THE ground on which this petition under Section 482 of the Criminal Procedure Code has been filed is that it is unlawful to convict the petitioner when on similar facts another person Ramchandra had been acquitted by the learned Chief Judicial Magistrate, Barmer. The plea of unlawful discrimination has been founded on the guarantee of equality enshrined in Article 14 of the Constitution. The sum and substance of the argument advanced by the learned counsel for the petitioner is that the conviction of the petitioner by the learned Chief Judicial Magistrate, Barmer is in violation of Article 14 of the Constitution and, therefore, it amounts to abuse of the process of the Court and, therefore, this petition filed under Section 482 of the Criminal Procedure Code should be allowed. The learned Public Prosecutor has supported the conviction as well as sentence of the petitioner passed by the learned Chief Judicial Magistrate, Barmer. The learned Public Prosecutor has supported the conviction as well as sentence of the petitioner passed by the learned Chief Judicial Magistrate, Barmer. ( 5 ) THE crucial question is whether conviction of the petitioner under Sections 52-A read with 68-A of the Copy Rights Act passed by the learned Chief Judicial Magistrate, Barmer is bad in law on the ground that it is in violation of Article 14 of the Constitution. ( 6 ) THE arguments advanced by the learned counsel for the petitioner is based on the supposition that Article 14 of the Constitution is applicable to convictions and sentences imposed by the Court in exercise of the powers conferred on them under the laws in force. I am afraid the supposition that the judgment and orders of the Courts can be challenged on the ground that they are in violation of Article 14 of the Constitution cannot be said to be correct. In Naresh v. State of Maharashtra, AIR 1967 SC 1 , it was held by the majority that an order passed by the Court cannot be challenged on the ground that it contravenes Article 19 (1) of the Constitution. Lordships of the Supreme Court observed as under;the argument that the impugned order affects the fundamental rights of the petitioner under Article 19 (1), is based on a complete misconception about the true nature and character of judicial process and of judicial decisions. When a Judge deals with matters brought before him for his adjudication, he first decides questions of fact on which the parties are at issue, and then applies the relevant law to the said fact. Whether the finding of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate Court. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Article 19 (1 ). What the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more. What the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more. If this basic and essential aspect of the judicial process is borne in mind it would be plain that the judicial verdict pronounced by Court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizen under Article 19 (1 ). The impugned order is, in a sense, an order of a collateral nature; it has no direct relation with the decision of the dispute which had been brought before the Court in the proceedings between the parties. The learned Judge, however, thought that in order that he should able to do full justice between the parties it was necessary to pass the impugned order. Thus, though the order in a sense is collateral to the proceedings which were pending before the Court, it was directly connected with the said proceedings in as much as the learned Judge found that he could not do justice between the parties and decide the matter satisfactorily unless the publication of Mr. Godas evidence was prohibited pending the trial. The order is not collateral in the sense that the jurisdiction of the Judge to pass that order can be challenged otherwise than by a proceeding in appeal. Just as an order passed by the Court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court so could the impugned order be challenged in appeal under Article 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioner. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners fundamental rights under Article 19 (1), must fail. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners fundamental rights under Article 19 (1), must fail. ( 7 ) ON the basis of the above observation made by the Honble Apex Court in, Budhan Choudhary v. State of Bihar, 1955-1 SCR 1045 : ( AIR 1955 SC 191 ) : (1955 Cri LJ 374), it was contended before the Honble Supreme Court that judicial order based on exercise of judicial discretion may contravene Article 14 and thereby become, invalid. The Honble Supreme Court considered the above contention in detail. Lordships observed as under :in fact the closing observations made in the judgement themselves indicate that this Court was of the view that if any judicial order was sought to be attacked on the ground that it was inconsistent with Article 14, the proper remedy to challenge such an order would be an appeal or revision as may be provided by law. We are therefore, not prepared to accept Mr. Setalvads assumption that the observations the proposition that according to this Court, judicial decisions rendered by Court of competent jurisdiction in or in relation to matters brought before them can be assailed on the ground that they violate Article 14. " ( 8 ) IT is therefore well established that the order or judgment passed by a Court of competent jurisdiction cannot be challenged on the ground that it contravenes the fundament rights. ( 9 ) IN A, Lakshmanrao v. Judicial Magistrate, Parvatipuram, AIR 1971 SC 186 : (1971 Cri LJ 253), it was contended before the Honble Supreme Court an order of remand passed under Section 344 (1-A) of the Criminal Procedure Code 1898 was violative of Article 14 of the Constitution. The contention was repelled and it was observed that Section 344 (1-A) of the Criminal Procedure Code did not confer arbitrary powers on the ground and the discretion vested in the Court under Section 344 (1-A) was a judicial discretion which was to be exercised judicially on recognised principles and was, therefore, immuned from challenge on the ground of arbitrariness and the want of guidelines and if the discretion was exercised in arbitrary or unjudicial manner remedy by a way of resort to higher Courts was always open to adverse party. ( 10 ) IN this case the validity of the judgment delivered by the learned Chief Judicial Magistrate, Barmer has been challenged by way of filing the petition under Section 482 of the Criminal Procedure Code. The petitioner has not prayed for issue of any writ under Article 226 of the Constitution. His submission is that the judgment delivered by the learned Chief Judicial Magistrate has resulted in injustice on the aforesaid ground and amounts to abuse of the process of the Court within the meaning of Section 482 of the Criminal Procedure Code. It is, therefore, further necessary to consider whether the plea of unlawful discrimination is maintainable while exercising jurisdiction under Section 482 of the Criminal Procedure Code. ( 11 ) THE guarantee of equality enshrined in Article 14 of the Constitution is of two kinds (a) equality before law (b) equal protection of laws. The right to equality between law and equal protection of laws, however, postulates the existence of a class of persons of which the person who is claiming the protection of Article 14 of the Constitution as well as one or more persons are members. Presence of a common class and membership of that class is necessary for the purpose of claiming rights to equality under Article 14 of the Constitution. It is not sufficient that person in relation to whom the right to equality is being claimed should belong to similar though separate classes. Viewed from this angle every case decided by a Court in view of the particular facts and circumstances, constitutes a class by itself. The person who is a party to a case cannot, therefore, claim equality vis a vis persons who are parties in other cases. Of course it does not mean that the law enacted by the legislature cannot be challenged on the ground that it violates Article 14 of the Constitution. There is well known distinction between challenging a law on the ground that it violates fundamental right and challenging the order or judgment of competent Court on the ground that it violates a fundamental right. The former is permitted by Article 13 of the Constitution. The latter is not permitted by any law in force. There is well known distinction between challenging a law on the ground that it violates fundamental right and challenging the order or judgment of competent Court on the ground that it violates a fundamental right. The former is permitted by Article 13 of the Constitution. The latter is not permitted by any law in force. In my humble opinion the reason why the order and judgments of the Court are not allowed to be challenged on the ground that they violate fundamental rights is not difficult to be known. Every law applies within certain limits. Those who are within the limits of law obtain the benefits given by such law or suffer the liabilities imposed by such laws. Those who are outside the limits of law in question neither obtain any advantage nor they suffer any liability under such law. The disputes arising before the Court are generally regarding the application of law to the particular subject matter in dispute. Therefore, after ascertaining the facts the court has to find out whether the case of the parties before it falls within the limits of law in question or is outside the limits of law in question. This finding is a pure and simple finding of the fact and the necessity of giving this finding of fact arises on account of the dispute between the parties to the case. If the law which is sought to be administered by the Courts is intended to be challenged on the ground that it contravenes any fundamental right, such challenge is permissible in view of Article 13 of the Constitution but if the finding relating to application of law which is otherwise valid to the particular facts of the case is challenged the finding can be challenged on the ground that it is incorrect. As pointed out above Honble Supreme Court in Naresh v. State of Maharashtra, ( AIR 1967 Sc 1 ) (Supra) what the Court aims to do is to decide the dispute between the parties before the court and nothing more and if this basic and essential aspect of the judicial process is borne in mind it would be plain that judicial verdict delivered by the Court cannot be said to affect the fundamental rights of the citizens. In other words it may be said that every case instituted before a Court is an independent class by itself and, therefore unless the decision is binding on persons other than the parties to the case, under any law for the time in force, those who are not parties to the case, cannot raise the plea of discrimination if in their case a different decision is delivered by a competent Court. Since every case instituted before a Court is entitled to be treated as a separate class by itself, only those persons who are parties to the case can raise the plea of right to equality if they are similarly placed. Every person who commits an offence made punishable by law in force, incurs the liability for punishment according to law, if found guilty. Article 14 does not entitle him to acquittal because in some other case some other persons accused of similar offences were acquitted by the Court which heard and decided their case. The liability for punishment imposed by a valid law in force cannot be avoided by persons who commit the crime on the ground that some other persons accused of similar crime were acquitted in some other case. In Section 43 of the Indian Evidence Act judgments delivered by Courts have been declared to be irrelevant excepting those which are relevant under : section 43. "judgments, etc. , other than those mentioned in Sections 40 to 42, when relevant :- Judgments, order or decrees, other than those mentioned in Sections 40, 41 and 42 are irrelevant unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act. " ( 12 ) THE object behind enacting Section 43 of the Evidence Act appears to be two fold; the first object appears to be to treat every case a class by itself so that the judgment delivered in one case may not be availed of by parties to another case and the second object appear to be to maintain the independence of the Courts by preventing the parties from submitting before the Court hearing their case the judgments of other Courts. The exception to above rule are judgments which are relevant under Article 141 or 227 of the Constitution as binding precedents or the judgments which are relevant under Sections 41 and 42 of the Evidence Act or which are necessary to be taken into consideration when plea of res judicata is raised. ( 13 ) IN the instant case the judgment delivered by the learned Chief Judicial Magistrate, Barmer in Criminal Regular Case No. 432/89 State v. Ramchandra, is irrelevant within the meaning of Section 43 of the Evidence Act, therefore, it cannot be looked into for any purpose. As a result of above discussion, there appears to be no force in this petition it deserves to be rejected and is hereby rejected. Petition dismissed.