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Rajasthan High Court · body

2014 DIGILAW 2069 (RAJ)

Sanjev Hiremath v. State of Rajasthan

2014-12-10

M.N.BHANDARI

body2014
JUDGMENT 1. - By this criminal misc. petition under Section 482 Cr.P.C., a challenge is made to the order dated 04.06.2004, whereby cognizance of the offence under Section 5/16 of the Cable Television Networks (Regulation) Act, 1995 (for short, 'the Act of 1995'), has been taken against the petitioner. 2. Learned counsel submits that the petitioner was not the In-charge of the broadcast, but was a technical person. He has been implicated without showing his roll for broadcast of the programme. A reference of definition of "person" under the Act of 1995, has also been given. It is to show that cognizance has been taken against MTV in ignorance of share capital largely with the foreign citizen, thus, does not fall in the definition of "person". It is further stated that the programme has been stopped. In view of the above, the impugned order taking cognizance deserves to be set aside. It is more so when violation of the Programme Code has been alleged, though the complaint does not disclose as to how it has been violated. A reference of the Programme Code, given under the Cable Television Networks Rules, 1994 (for short, 'the Rules of 1994'), has been given. 3. I have considered the submissions made by the learned counsel for the petitioner and perused the record. 4. The instant petition has been filed on behalf of Shri Sanjev Hiremath, who is a citizen of India, as admitted by the Counsel for the petitioner. The petition has not been filed on behalf of the MTV, so as to give reference of word "person", as defined under the Act of 1995. The definition of "person" is however quoted hereunder for ready reference:- 2. Definitions. In this Act, unless the context otherwise required,- (a)....... .......... (e) "person" means- an individual who is a citizen of India; (ii) an association of individuals or body of individuals, whether incorporated or not, whose members are citizens of India; (iii) a company in which not less than fifty-one percent of the paid-up share capital is held by the citizens of India." 5. The definition quote above includes an individual, who is a citizen of India. Thus, the petitioner in the instant case is covered by the definition of "person". The definition quote above includes an individual, who is a citizen of India. Thus, the petitioner in the instant case is covered by the definition of "person". The petition has not been filed on behalf of the MTV, thus, I need not to record or elaborate the discussion in reference to the status of the company. 6. The other issue is in reference to the facts. It is submitted that the petitioner was not the In-charge of the television, or anywhere connected for broadcast of the programme, alleged to have been released in violation of the Programme Code, so as to make offence under Section 5/16 of the Act of 1995. The petitioner is said to be a technical person. 7. Before dealing with the argument aforesaid, I have considered the stage of the challenge to the order. A complaint was filed followed by an order of cognizance of the offence under Section 5/16 of the Act of 1995. At that stage, the Court was required to see whether prima-facie a case is made out for taking cognizance. It was not required to find out as to whether material exists, which may lead to conviction. At the stage of cognizance, only prima-facie case is to be seen. It is also a settled law that defence of accused cannot be considered. In view of the above, whether the petitioner was involved in transmission of the programme or not, is an issue, which can be considered at the time of hearing the case for framing of the charge, and not at this stage. 8. In view of the above, I find that the argument aforesaid cannot be accepted. However, I keep it open for the petitioner to raise the aforesaid argument at an appropriate stage. 9. A reference of the Programme Code has been given, as provided under the Rules of 1994. I have gone through the contents of the Programme Code and prima-facie of the opinion that a case is made out. The opinion aforesaid should not be taken as conclusive, looking to the stage. It should rather be taken as an observation because the petitioner would be having an opportunity to raise all the arguments available to him at the time of hearing the case for framing of the charge. 10. It is lastly contended that the order of cognizance is not speaking one. 11. It should rather be taken as an observation because the petitioner would be having an opportunity to raise all the arguments available to him at the time of hearing the case for framing of the charge. 10. It is lastly contended that the order of cognizance is not speaking one. 11. To appreciate the argument aforesaid, I have gone through the order and find that the order is speaking one to the extent required. One should always understand the stage where the order has been passed. It is only for taking cognizance of the offence. If the provisions of the Code of Criminal Procedure are considered, on a complaint under Section 190 Cr.P.C., the Court can record the statement of the complainant under Section 200 and if need be, cause an enquiry under Section 202 Cr.P.C., followed by issuance of process. The recording of the statement under Section 200 and enquiry under Section 202 Cr.P.C., is subsequent to the stage of cognizance and not prior to it. After recording the evidence and the enquiry, the process can be issued under Section 204, if the proceedings are not dropped under Section 203 Cr.P.C. The order of cognizance need not to disclose every fact, but to show prima-facie satisfaction for taking cognizance of the offence. 12. In view of the aforesaid, I do not find that the impugned order can be said to have been passed without application of mind, or not a speaking order. 13. In view of the discussion made above, I do not find any merit in the misc. petition. It is accordingly dismissed. 14. However, the petitioner would be at liberty to raise all the issues available to him at the time of hearing the case for framing of the charge. Any observations made in this order, will not come in the way of petitioner for the aforesaid.Record be sent back.Petition Dismissed. *******