BHANUMATHY Vs. STATE

JUDGEMENT

(1.) The revision petitioner is the proprietress of Ananda Picture Palace, Kottiyam. She was prosecuted by the Executive Officer of the Mayyanadu Panchayat under S.7, 8 and 10(1) of the Kerala Cinemas (Regulation) Act, 1958 (shortly stated the Act) read with R.21 of the Kerala Cinemas (Regulation) Rules (shortly stated the Rules) and the provisions of 4(a) and (b) of the Condition of Licence, at she did not exhibit documentary films in the theatre during the period between 19th May 1967 and 8th June 1968. S.7 of the Act provides that:

(2.) The first point argued is about the competency of the Executive Officer of the Panchayat to launch this prosecution. The complaint is seen to have been preferred on behalf of the Mayyanad Panchayat. But in the Act there is no provision authorising the Executive Officer of the Panchayat to initiate action for any contravention of the provisions of the Act or Rules. The learned appellate Magistrate observes that under S.119 of the Panchayats Act the executive officer is authorised to initiate the prosecution. This is wrong. Under S.119 of the Panchayats Act, prosecution can be started by the police, executive authority or a person expressly authorised in that behalf by the Panchayat. But that applies only to offences against the Panchayats Act and the provision cannot be extended to the present complaint which is one launched against the Cinemas Regulation Act. S.10 of the Act, as already pointed out, provides for penalties for contravention of the provisions of the Act or of the rules or of the conditions under which the licence is granted. Without some one initiating the action, the penal provisions of S.10 cannot be enforced. Craies on Statute Law, 5th edition, page 105 observes:

(3.) But the prosecution, in my view; must fail on another ground, viz., that the accused has not intentionally contravened any of the provisions of the Act or Rules or the conditions of the licence. We have seen from Ext. P5 that the supply of documentary films to the accused was stopped from 19th May 1967; but in spite of that, the cinema show was continued in the theatre till 8th June 1968. This shows that no action was taken against her under any of the provisions of the Act or the Rules. The supply of documentary films was stopped since she did not make necessary remittance for getting the documentary films. She was liable, of course, to action, if any, for her failure to make the remittance and obtain the documentary films. But, for that no action lies under the Act; in other words, for failure to obtain the documentary films in time no action can be taken under S.10 of the Act. Her licence is probably liable to be cancelled; but no criminal prosecution can be instituted. For over one year, cinema shows were going on in the theatre, and the executive officer of the Panchayat used to attend the shows also as is conceded by P. W. 1 in his evidence. If this inaction, on the part of the Panchayat was construed to be an act of condonation of the offence, the accused cannot be blamed for that. A criminal prosecution can lie, only if the guilty intention is also proved on the part of the accused. It is true that in a statutory offence like this, the element of mens rea will be presumed and need not be proved by the prosecution. But if the accused succeeds in showing the negative, he could escape punishment. Subba Rao, J., (as he then was) in Nathulal v. State of M.P. ( AIR 1966 SC 43 ) observed: