N. NANMARAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner has filed the above writ petition seeking for a Mandamus, directing the first respondent to initiate proceeding under Section 7 of the Emblems and Names (Prevention of improper use) Act to prosecute the third respondent herein for their improper use of the National Emblem and the Government of India seal in their Tamil feature film 'Rajamuthirai'.

(2.) THE petitioner's case is that the third respondent has commercially exhibited the official seal of the Government of India and disfigured the National Emblem by super embossing the title of the said film in wall posters and other advertisements thereby wounding the feelings of the patriotic Indian. The writ petition was admitted on 17.2.1995 and in the W.M.P., notice was ordered. The second respondent has filed counter stating that under Section 6 of the said Act of XII of 1950 no prosecution for any offence punishable under the said Act can be instituted without previous sanction of the Central Government or of any other officer authorised in this behalf by the general or special order of the Central Government. Further, the Central Government is the authority to decide as to the colourable imitation of the emblem.

(3.) HOWEVER the Learned Counsel for the petitioner represents that already the picture has gone to the storage. But still whenever the picture is likely to be released, the third respondent may use the same pattern of advertisements and posters. Hence that should be prevented. Even though I agree with the counsel for the petitioner, I am of the view that no direction can be issued directly to the first respondent to initiate the prosecution against the third respondent. The prosecution cannot be initiated without the prior permission of the Central Government. Moreover, the Central Government is the authority to find out whether the emblem used by the third respondent is an imitation or the same that is being used by the Government. Without going into these facts, it may not be possible to issue a direction as prayed for. When the Central Government is the concerned authority to sanction the prosecution, it is open to the petitioner to bring it to the notice of the first respondent about the third respondent's conduct and seek for permission to initiate prosecution and lay a complaint or otherwise, he can send a communication to the first respondent informing the conduct of the third respondent and to take necessary steps. Without doing so, straightway the first respondent cannot be directed to initiate prosecution. For the reasons stated above, the writ petition is dismissed and, however, it is open to the petitioner to make his representation to the Central Government, namely, the first respondent, to take necessary action against the third respondent.