Biju C.K v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 25[TH] DAY OF AUGUST 2021 / 3RD BHADRA, 1943** **WP(C) NO. 1197 OF 2021** ## **PETITIONER:** BIJU C.K AGED 46 YEARS S/O.(LATE)KOCHUNARAYANAN,CHENTHUNATHY VILLAGE,MALA.PALLIPPURAM(P.O),THRISSUR DT, PIN-680732. BY ADV MRINUAAL ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY HOME DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN-695001. 2 THE STATION HOUSE OFFICER, CHALAKUDY POLICE STATION, THRISSUR DT,PIN-680732. (CORRECTED) R2. THE STATION HOUSE OFFICER, MALA POLICE STATION, THRISSUR DISTRICT, PIN - 680 732. (ADDRESS OF 2ND RESPONDENT IS CORRECTED AS PER ORDER DATED 26/2/2021 IN I.A.NO.1/2021 IN WP(C)1197/2021.) 3 ADDL.R3. KERALA FILM CHAMBER OF COMMERCE NEAR SHENOYS THEATRE, M.G.ROAD, ERNAKULAM, PIN - 682 011. REPRESENTED BY ITS GENERAL SECRETARY. (ADDL.R3 IS IMPLEADED AS PER ORDER DATED 07.04.2021 IN I.A.NO.3/2021 IN WP(C)NO.1197/2021.) BY ADV S.SUJIN **OTHER PRESENT:** WPC.1197/2021 2 C.N.PRABHAKARAN- SR.P.P THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2021, THE COURT ON 25.08.2021 DELIVERED THE FOLLOWING: WPC.1197/2021 3 ## **JUDGMENT** ## **DATED THIS THE 25TH DAY OF AUGUST, 2021** The petitioner has filed this petition under Article 226 of the Constitution of India seeking the following reliefs: 1. To issue a writ of mandamus or any other direction or order which directing or commanding the 2[nd] respondent to issue Police Clearance Certificate to the petitioner to present before Film Chamber of Commerce, Kerala. 2. Issue such other further reliefs as necessary in the interest of justice. **==> picture [399 x 11] intentionally omitted <==** petitioner, the learned counsel for the 3rd respondent and the learned Government Pleader. 3. The case of the petitioner is that he had purchased the production of a film by name “Oru Rathri” which was initially produced by one Sreedharan Bhattathiri, on executing an agreement on WPC.1197/2021 4 13.01.2020. The agreement includes registration of the film, script, dialogue etc. of the film before the Film Chamber of Commerce. But, the 2[nd] respondent, who is the Station House Officer of Chalakudy Police Station has failed to issue police clearance certificate alleging that the petitioner has been booked in a crime for having committed rape of a 46 year old lady. The said complaint was registered as Crime No.91 of 2019 before Chalakudy Police Station. When he approached the Court apprehending arrest in the falsely implicated case, he was granted bail as per Ext.P2 order. Thereafter, the 2[nd] respondent filed the final report before the Judicial First Class Magistrate, Chalakudy and the case is now pending as S.C. No. 681 of 2019 before the Additional Sessions Court, Irinjalakuda. Because of the pendency of the case, the 2[nd] respondent has failed to issue the police clearance certificate which is to be produced before the Film Chamber of Commerce to get ultimate signal for WPC.1197/2021 5 releasing the film. He had already spent huge amount by entering into the agreement and for the works related to the studio works. But violative of Article 21 of the Constitution of India, the 2[nd] respondent failed to issue the certificate and hence this Writ Petition. **==> picture [399 x 13] intentionally omitted <==** Chalakudy, has not filed any statement in this Writ Petition. But the 3[rd] respondent, who was impleaded subsequently, has filed a written statement by way of a counter affidavit stating that the Film Chamber of Commerce represents all the institutions, organizations and various other personnel. The main object is to look after the welfare of all such persons or class of persons who are engaged in production, distribution, exhibition and other branches of the industry of India and for safe guarding the rights, titles, trademarks, trade names, and copyright. In fact, this respondent had received an application of a firm namely M/s. WPC.1197/2021 6 Perikamana Brothers Cinema by Sreedharan Bhattathiri as the Proprietor of the firm and it was registered on 22.08.2019 following the procedure for the registration of the film “Oru Rathri”. The 3[rd] respondent came to know about the involvement of the petitioner only on receipt of the notice in this Writ Petition. Sreedharan Bhattathiri who registered the film had passed away about two months back. 5. The petitioner is claiming rights over the film by name “Oru Rarthri” on the basis of an agreement executed between him and Sreedharan Bhattathiri. Ext. P1 is the copy of the said agreement. The only question to be looked into is whether any direction has to be given to the 2[nd] respondent, SHO Chalakudy, to issue police clearance certificate to the petitioner. According to the petitioner, the said certificate is required to be produced before the Kerala Film Chamber of Commerce. But at the outset, it is to be noted that the 3[rd] respondent has no case that such a demand was made WPC.1197/2021 7 by it to the petitioner to produce police clearance certificate. Moreover, the statement of the 3[rd] respondent would indicate that the film “Oru Rathri” was registered by Sreedharan Bhattathiri and there is no indication that the petitioner has approached the Film Chamber of Commerce for registration of the said film in his favour. But the crucial question to be decided is whether the petitioner is entitled to get a police clearance certificate as sought for by him. 6. Section 59 of the Kerala Police Act, 2011(for short the Act) deals with the provision for issuance of police clearance certificate. For the sake of convenience Section 59 of the Act is reiterated here under: “ **59. Police to give certificates of non-involvement in offences** .- The District Police Chief or the Station House Officer may, on the application of any person, give a certificate to the effect that such person is not involved in any offence after suitable enquiries and after realising such charges as may be fixed by the Government in this regard.” WPC.1197/2021 8 From a reading of this provision it is explicitly clear that a certificate will be issued to a person only if he is not involved in any offence after suitable inquiry. So, it indicates that if a person is involved in any criminal offence, such a certificate cannot be issued. The certificate is to be issued to the effect that the applicant is not involved in any offence and that too will be after suitable inquiry and after realizing charges as may be fixed by the Government. Here, admittedly, the petitioner is the accused in S.C. No. 681 of 2019 on the file of the Additional Sessions Court, Irinjalakuda registered for the offences punishable under Sections 376 and 420 of Indian Penal Code. Ext. P3 would show that he has approached this Court with an application for bail apprehending arrest and that has been granted by this Court. According to the petitioner he has been falsely implicated in this case. But it is clear that he is the accused in S.C. No. 681 of 2019 arising from Crime No. 91 of WPC.1197/2021 9 2019. So, he is involved in a case pending before the Additional Sessions Court, Irinjalakuda. It is well settled that an accused is presumed to be innocent unless proved beyond a reasonable doubt. Whether he is falsely implicated or not, are not matters for consideration in this writ petition. Section 59 of the Kerla Police Act mandates to give certificates of non- involvement in criminal cases. So, it could be seen that right now the petitioner is not entitled to get a police clearance certificate to the effect that he is not involved in any offence. But here, the argument projected by the petitioner is that just because of the failure to issue police clearance certificate, he is unable to release the film which he purchased as per Ext. P1. As mentioned earlier, the 3[rd] respondent has no case that there was such a demand and the Film Chamber of Commerce has not raised a contention that it is entitled to ask for such a certificate from a producer who purchased a film and submitted for WPC.1197/2021 10 registration. Here, such a situation is also not there as no document has been produced by the petitioner to the effect that he has approached the Film Chamber of Commerce with a request or the Film Chamber of Commerce has demanded for such a certificate. However, as this petitioner is involved in a criminal case, the 2[nd] respondent is unable to issue a certificate to the effect that he is not involved in any offence as contemplated under Section 59 of the Kerala Police Act. The Film Chamber of Commerce has not raised a contention that a police clearance certificate is required for registration of a film and hence it is not necessary to probe into those details. More over Article 21 of the Constitution of India mandates that no one shall be deprived of his life or personal liberty except according to a procedure established by law. In **Board of Trustees of the** **Port of Bombay v. Dilipkumar Raghavendranath** **Nadkarni** (AIR 1983 SC 109), the Apex Court held as WPC.1197/2021 11 follows: “The expression 'life' does not merely connote animal existence or a continued drudgery through life. The expression 'life' has a much wider meaning.” Therefore, the Supreme Court took the view that the Right to life guaranteed by Article 21 includes 'the right to livelihood' also. 7. As a citizen of India, the petitioner is entitled to engage in any job for his livelihood. One can make his life meaningful and beautiful by engaging with any job to his satisfaction which is not forbidden by law as enshrined under Article 21 of the Constitution of India. But here there are no records available to show that he has approached the Film Chamber of Commerce for registration of the film and such an unjust or unreasonable demand has been made by Film Chamber of Commerce depriving his fundamental right. The counter affidavit filed by the General Secretary for the Film Chamber of Commerce demonstrate that it is also precluded WPC.1197/2021 **==> picture [13 x 9] intentionally omitted <==** from making such a demand from the petitioner in violation of Article 21 of the Constitution of India. In view of the above and for the reasons stated herein above, this writ petition is disposed of. **==> picture [54 x 13] intentionally omitted <==** **SHIRCY V JUDGE** sb WPC.1197/2021 13 ## **APPENDIX OF WP(C) 1197/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE AGREEMENT ENTERED INTO BY THE PETITIONER AND SHRIDHARA BHATTATHIRI DATED 13/01/2020. EXHIBIT P2 TRUE COPY OF THE ORDER IN BA.962/2019 DATED 18/02/2019 BY THIS HONOURABLE HIGH COURT OF KERALA. EXHIBIT P3 TRUE COPY OF THE FINAL REPORT DATED 02/04/2019 PENDING AS SC 681/19 AT IRINJALAKUDA SUB-COURT. EXHIBIT P4 THE TRUE COPY OF THE BAIL ORDER IN B.A.962/2019 OF THIS HON'BLE COURT DATED 18.2.2019 EXHIBIT P4 THE TRUE COPY OF THE PETITION FILED BY PETITIONER BEFORE S.H.O. MALA POLICE STATION THROUGH ONLINE DATED 27.1.2021