# KODUNGALLUR FILM SOCIETY & ANR v. UNION OF INDIA & ORS

- **Citation:** [2018] 12 S.C.R. 695
- **Court:** Supreme Court of India
- **Decided:** 2018-10-01
- **Bench:** Dipak Misra, A. M. Khanwilkar, Dr. D. Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kodungallur-film-society-anr-v-union-of-india-ors-32318
- **Pages:** 52

## Headnote

Constitution of India: Art. 32 - Eruption of mob violence,
protests and demonstrations across the nation in the recent past,
against cultural programmes and establishments - Resulting in
damage to public and private properties arising out of such violence
- Submission that law and order problems arose out of the release
of several films, especially film Padmaavat - PIL seeking issuance
of directions to the respondents to strictly follow and implement the
guidelines formulated by this Court in In Re: Destruction of Public
and Private Properties case to prevent destruction of public and
private properties in mass protests and demonstrations - Held: These
acts of violence highlight a deeper malaise, one of intolerance
towards others' views which then results in attempts to suppress
alternate view points, artistic integrity and the freedom of speech
and expression guaranteed by the Constitution - Nobody has the
right to become a self-appointed guardian of the law and forcibly
administer his or her own interpretation of the law on others,
especially not with violent means - Dispensation for preventing
occurrences of such crimes or remedial measures and punitive
measures would vest in the same police in the State - Therefore,
comprehensive structure to be evolved in the respective States so
that the issues of accountability and efficiency in curbing incidents
of peaceful protests turning into mob violence, causing damage to
property including investigation, remedial and punitive measures,
are duly addressed - Dispensation can be similar to Tehseen
Poonawalla case - Recommendations in addition to In Re Destruction
of Public and Private Properties case, issued under the following
heads: structural and preventive measures, remedies to minimize
the impending mob violence, liability of person causing violence,
responsibility of police officials and compensation - Central and
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[2018] 12 S.C.R. 695
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SUPREME COURT REPORTS
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State governments to implement the recommendations within the
stipulated period.
Disposing of the writ petition, the Court
HELD: 1.1 There is a disconcerting rise in the protests
and demonstrations by private entities targeting, amongst others,
exhibition of films and social functions and including sections of
people, on moral grounds, in particular, using threats and actual
violence. In addition to being patently illegal and unlawful, such
acts of violence highlight a deeper malaise, one of intolerance
towards others' views which then results in attempts to suppress
alternate view points, artistic integrity and the freedom of speech
and expression guaranteed by the Constitution of India. Indeed,
the people who perpetrate such actions, especially against private
parties, do so without fear of consequence and reprisal, probably
believing that private parties do not have the wherewithal to hold
them accountable for such actions. In such situations, the State
must step in and perform its duty by taking measures to prevent
such actions from occurring in the first place, ensuring that lawenforcement agencies exercise their power to bring the guilty
parties to book and imposing time-bound and adequate
punishment for any lapses. This Court has time and time again
underscored the supremacy of law and that one must not forget
that administration of law can only be done by law-enforcing
agencies recognised by law. Nobody has the right to become a
self-appointed guardian of the law and forcibly administer his or
her own interpretation of the law on others, especially not with
violent means. Mob violence runs against the very core of our
established legal principles since it signals chaos and lawlessness
and the State has a duty to protect its citizens against the illegal
and reprehensible acts of such groups. [Para 7] [723-C-D; 724A-D]
1.2 There is a broad consensus that the recommendations
made and directions given in In Re: Destruction of Public and
Private Properties case, at paragraph 3 are

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KODUNGALLUR FILM SOCIETY & ANR.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 330 of 2018)
OCTOBER 01, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Constitution of India: Art. 32 - Eruption of mob violence,
protests and demonstrations across the nation in the recent past,
against cultural programmes and establishments - Resulting in
damage to public and private properties arising out of such violence
- Submission that law and order problems arose out of the release
of several films, especially film Padmaavat - PIL seeking issuance
of directions to the respondents to strictly follow and implement the
guidelines formulated by this Court in In Re: Destruction of Public
and Private Properties case to prevent destruction of public and
private properties in mass protests and demonstrations - Held: These
acts of violence highlight a deeper malaise, one of intolerance
towards others' views which then results in attempts to suppress
alternate view points, artistic integrity and the freedom of speech
and expression guaranteed by the Constitution - Nobody has the
right to become a self-appointed guardian of the law and forcibly
administer his or her own interpretation of the law on others,
especially not with violent means - Dispensation for preventing
occurrences of such crimes or remedial measures and punitive
measures would vest in the same police in the State - Therefore,
comprehensive structure to be evolved in the respective States so
that the issues of accountability and efficiency in curbing incidents
of peaceful protests turning into mob violence, causing damage to
property including investigation, remedial and punitive measures,
are duly addressed - Dispensation can be similar to Tehseen
Poonawalla case - Recommendations in addition to In Re Destruction
of Public and Private Properties case, issued under the following
heads: structural and preventive measures, remedies to minimize
the impending mob violence, liability of person causing violence,
responsibility of police officials and compensation - Central and
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[2018] 12 S.C.R. 695
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SUPREME COURT REPORTS
[2018] 12 S.C.R.
State governments to implement the recommendations within the
stipulated period.
Disposing of the writ petition, the Court
HELD: 1.1 There is a disconcerting rise in the protests
and demonstrations by private entities targeting, amongst others,
exhibition of films and social functions and including sections of
people, on moral grounds, in particular, using threats and actual
violence. In addition to being patently illegal and unlawful, such
acts of violence highlight a deeper malaise, one of intolerance
towards others' views which then results in attempts to suppress
alternate view points, artistic integrity and the freedom of speech
and expression guaranteed by the Constitution of India. Indeed,
the people who perpetrate such actions, especially against private
parties, do so without fear of consequence and reprisal, probably
believing that private parties do not have the wherewithal to hold
them accountable for such actions. In such situations, the State
must step in and perform its duty by taking measures to prevent
such actions from occurring in the first place, ensuring that lawenforcement agencies exercise their power to bring the guilty
parties to book and imposing time-bound and adequate
punishment for any lapses. This Court has time and time again
underscored the supremacy of law and that one must not forget
that administration of law can only be done by law-enforcing
agencies recognised by law. Nobody has the right to become a
self-appointed guardian of the law and forcibly administer his or
her own interpretation of the law on others, especially not with
violent means. Mob violence runs against the very core of our
established legal principles since it signals chaos and lawlessness
and the State has a duty to protect its citizens against the illegal
and reprehensible acts of such groups. [Para 7] [723-C-D; 724A-D]
1.2 There is a broad consensus that the recommendations
made and directions given in In Re: Destruction of Public and
Private Properties case, at paragraph 3 are comprehensive to deal
with the issue of large-scale destruction of private and public
properties which unwinds during violent protests and
demonstrations. The Committee's recommendations noted in the
said judgment traverse the length and breadth of the issue at
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hand and, if implemented in their entirety, would go a long way in
removing the bane of violence caused against persons and
property. As far as implementation of the said recommendations,
is concerned, and the Attorney General's submission is that the
Union is mindful of the dictum in In Re: Destruction of Public
and Private Properties case, and has advised the States to follow
the same in its letter and spirit and also drafted a bill for initiating
legislative changes in conformity with the recommendations of
this Court, namely, The Prevention of Damage to Public Property
(Amendment) Bill, 2015, which is currently being examined in
consultation with the Ministry of Law and Justice. [Para 9] [724G-H; 725-A]
1.3 This Court is conscious of the fact that the crimes
committed by groups of self-appointed keepers of public morality
may be on account of different reasons or causes, but the
underlying purpose of such group of persons is to exercise
unlawful power of authority and that too, without sanction of State
and create fear in the minds of the public or, in a given situation,
section of the community. The dispensation for preventing
occurrences of such crimes or remedial measures and punitive
measures would vest in the same police in the State. Therefore,
a comprehensive structure will have to be evolved in the
respective States so that the issues of accountability and efficiency
in curbing incidents of peaceful protests turning into mob violence,
causing damage to property including investigation, remedial and
punitive measures, are duly addressed. While doing so, the
directions given by this Court in In Re: Destruction of Public and
Private Properties's case, Shakti Vahini's case and Tehseen S.
Poonawalla's case, must be borne in mind. [Paras 15] [742-A-C]
1.4 There are overlapping areas of directions which albeit
apply to the situations referred to in the concerned decision. For
the purpose of the instant writ petition, it is observed that the
dispensation can be similar to the one decided recently in Tehseen
Poonawalla case, for which reason the guidelines delineated in
the said decision must apply proprio vigore in respect of peaceful
protests turning into mob violence, causing damage to public and
private properties. Ex abundanti cautela, it is clarified that similar
interim measures would operate in respect of any peaceful protest
KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
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turning into mob violence, causing loss of life or damage to public
and private properties, including violence designed to instill fear
in the minds and terrorise the common man, in the absence of
any law to that effect. [Para 16] [742-D-F]
1.5 The recommendations/directions elucidated hereunder
are not exhaustive but only to set out broad contour of the
measures required to be taken and are in addition to the
recommendations/directions given in In Re: Destruction of Public
and Private Properties case.
A. Structural and preventive measures
a) In addition to the responsibilities ascribed to the Nodal
Officer(s) as set out in Tehseen Poonawalla case, the said
Nodal Officer(s) would also be responsible for creating
and maintaining a list containing the various cultural
establishments, including theatres, cinema halls, music
venues, performance halls and centres and art galleries
within the district, and pin point vulnerable cultural
establishments and property which have been attacked/
damaged by mob violence over the past 5 (five) years.
This list would be updated on a regular basis to account
for any new openings/closings of establishments.
b) In addition to the prohibition against weaponry laid down
in paragraph 12 (II) of In Re: Destruction of Public and
Private Properties case, any person found to be carrying
prohibited weaponry, licensed or otherwise, during
protests/demonstrations would prima facie be presumed
to have an intention to commit violence and be proceeded
in that regard as per law.
c) The State governments should set up Rapid Response
Teams preferably district-wise which are specially trained
to deal with and can be quickly mobilized to respond to
acts of mob violence. These teams can also be stationed
around vulnerable cultural establishments.
d) The State governments should set up special helplines
to deal with instances of mob violence.
e) The State police shall create and maintain a cyberinformation portal on its website and on its internet-based
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application(s) for reporting instances of mob violence and
destruction of public and private properties. [Para 16]
[742-F-H; 743-A-D]
B. Remedies to minimize, if not extirpate, the impending
mob violence
a) The Nodal Officer(s) will coordinate with local
emergency services, including police stations, fire
brigades, hospital and medical services and disaster
management authorities during incidents of mob violence
in order to have a comprehensive and consolidated
response to the situation.
b) The authorities must consider the use of non-lethal
crowd-control devices, like water cannons and tear gas,
which cause minimum injury to people but at the same
time, act as an effective deterrent against mob force.
c) The authorities must ensure that arrests of miscreants
found on the spot are done in the right earnest.
d) The Nodal Officer(s), may consider taking appropriate
steps as per law including to impose reasonable
restrictions on the social media and internet-based
communication services or mobile applications, by
invoking enabling provisions of law during the relevant
period of mob violence, if the situation so warrants.
e) The Nodal Officer(s) must take coordinated efforts and
issue messages across various audio-visual mediums to
restore peace and to stop/control rumours. This can
extend to issuing communications on local TV channels,
radio stations, social media like Twitter etc. [Para 16] [743E-H; 744-A-B]
C. Liability of person causing violence
a) If a call to violence results in damage to property, either
directly or indirectly, and has been made through a
spokesperson or through social media accounts of any
group/organization(s) or by any individual, appropriate
action should be taken against such person(s) including
under Sections 153A, 295A read with 298 and 425 of the
Penal Code, 1860.
KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
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b) In instances where a group/organisation has staged a
protest or demonstration resulting in violence and damage
to property, the leaders and office bearers of such group/
organisation should physically present themselves for
questioning, on their own, within 24 (twenty four) hours,
in the police station within whose jurisdiction the violence
and damage occurred. Any such person(s) failing to present
himself/herself in such manner without any sufficient reason
should be proceeded against as a suspect and legal process
must be initiated forthwith against him/her including for
being declared an absconder in accordance with law.
c) A person arrested for either committing or initiating,
promoting, instigating or in any way causing to occur any
act of violence which results in loss of life or damage to
property may be granted conditional bail upon depositing
the quantified loss caused due to such violence or
furnishing security for such quantified loss. In case of more
than one person involved in such act of violence, each
one of them shall be jointly, severally and vicariously liable
to pay the quantified loss. If the loss is yet to be quantified
by the appropriate authority, the judge hearing the bail
application may quantify the amount of tentative damages
(which shall be subject to final determination thereof by
the appropriate authority) on the principle stated in
paragraph 15 of the decision in In Re: Destruction of Public
and Private Properties case, after hearing the submissions
of the State/agency prosecuting the matter in that regard.
[Para 16] [744-C-H]
D. Responsibility of police officials
a) When any act of violence results in damage to property,
concerned police officials should file FIRs and complete
investigation as far as possible within the statutory period
and submit a report in that regard. Any failure to file FIRs
and conduct investigations within the statutory period
without sufficient cause should be considered as dereliction
of duty on behalf of the concerned officer and can be
proceeded against by way of departmental action in right
earnest.
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b) Since the Nodal Officer(s) holds the overall
responsibility in each district to prevent mob violence
against cultural establishments and against property, any
unexplained and/or unsubstantiated delay in filing FIRs
and/or conducting investigations in that regard should also
be deemed to be inaction on the part of the said Nodal
Officer(s).
(c) With reference to the videography mentioned in
paragraphs 5(iv), 10 and 12 of In Re: Destruction of Public
and Private Properties case, the officer-in-charge should
first call upon from the panel of local video operators
maintained by the concerned police station to video-record
the events. If the said video operators are unable to record
the events for whatever reason or if the officer-in-charge
is of the opinion that supplementary information is
required, then he/she can also call upon private video
operators to record the events and request the media for
information on the incident in question, if need be. Status
reports of the investigation(s)/trial(s) concerning such
offences, including the results of such trial(s), shall be
uploaded on the official website of the concerned State
police on a regular basis. In the event of acquittal of any
person(s) accused of committing such offences, the Nodal
Officer(s) must coordinate with the Public Prosecutor for
filing appeal against such acquittal, in the right earnest.
[Para 16] [745-A-B]
E. Compensation
a) The person/persons who has/have initiated, promoted,
instigated or any way caused to occur any act of violence
against cultural programmes or which results in loss of
life or damage to public or private property either directly
or indirectly, shall be made liable to compensate the victims
of such violence.
b) Claims arising out of such acts of violence should be
dealt with in the manner prescribed in In Re: Destruction
of Public and Private Properties's case.
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c) This compensation should be with regard to the loss of
life or damage done to any public or private properties,
both movable and immovable. [Para 16] [745-G-H; 746A-B]
1.4 The recommendations have to be implemented by the
Central and State governments as expeditiously as possible,
preferably within the stipulated period. [Para 18] [746-B-C]
In Re: Destruction of Public and Private Properties Vs.
State of Andhra Pradesh & Ors. (2009) 5 SCC 212 :
[2009] 6 SCR 439; Tehseen S. Poonawalla Vs. Union
of India & Ors. AIR 2018 SC 3354; Shakti Vahini Vs.
Union of India and Ors.(2018) 7 SCC 192 - relied on.
Koshy Jacob Vs. Union of India and Ors. (2018) 11
SCC 756 - referred to.
Case Law Reference
[2009] 6 SCR 439
relied on
Para 9, 15, 16
AIR 2018 SC 3354
relied on
Para 7, 15
(2018) 11 SCC 756
referred to
Para 13
(2018) 7 SCC 192
relied on
Para 15
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No. 330 of 2018
Under Article 32 of the Constitution of India.
P. V. Dinesh, Adv. for the petitioners.
K. K. Venugopal, AG, Aman Lekhi, ASG, Rohit Bhat, Ms. Madhavi
Diwan, Ms. Charanya L. for B.V. Balaramdas, Advs. for the
respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. The petitioners have filed the
present writ petition on 25th January, 2018, in the backdrop of mob
violence, protests and demonstrations which erupted across the nation
in the recent past, especially against cultural programmes and
establishments and the ensuing damage to public and private properties
arising out of such violence. Petitioner No. 1 is a registered film society
and petitioner no. 2, is a member of the petitioner no.1 film society.
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They have highlighted law and order problems arising out of the release
of several films, especially the violence surrounding the release of the
film 'Padmaavat', and submit that fundamentalist outfits and fringe groups
have been issuing threats and engaging in acts of violence against people
and property to disrupt and prevent public exhibitions of these films on
the pretext that they offend their cultural/religious sentiments. These
groups engage in violence against artistic expression, with utter impunity
and show complete disregard for the rule of law and constitutional values.
The films which are protested against are certified for public exhibition
in accordance with law under the Cinematograph Act and by attempting
to stop their exhibition, these groups operate as 'super censors', exercising
unlawful authority and power outside the control and without the sanction
of the State. These attacks on films are part of a larger problem whereby
private individuals and groups impose unlawful restraints by threatening
violence upon citizens' artistic freedoms and thereby impinge on the
freedom of speech and expression under Article 19(1)(a) of the
Constitution of India. The petitioners contend that the respondent state
governments then themselves ban the exhibition of such films, citing law
and order problems, without clamping down on the root cause of such
problems namely the individuals and groups who incite and commit
violence. It is also contended that many such groups have tacit support
from the political parties in power.
2. The petitioners have consequently prayed for the following
reliefs:
"a) Issue a writ in the nature of mandamus, or any other
appropriate writ, direction or order directing the respondents to
strictly follow and implement the guidelines formulated by this
Hon'ble Court in In Re: Destruction of Public and Private
Properties v. Govt. of AP (2009) 5 SCC 212 with regard to
measures to be taken to prevent destruction of public and private
properties in mass protestes and demonstrations, and also
regarding the modalities of fixing liability and recovering
compensation for damages caused to public and private properties
during such demonstrations and protests, particularly mentioned
in Paragraph 12 and 15 of SCC Report of the said judgment.
b) appoint Claims Commissioner in the manner stated in
paragraph 15 of the judgment in In Re: Destruction of Public
and Private Properties v. Govt. of AP (2009) 5 SCC 212 to
KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
[A. M. KHANWILKAR, J.]
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assess damages caused to public and private properties by
protestors and also to fix liability not only on the perpetrators but
also on the leaders of the groups/outfits/organizations which
instigated agitations with their threats against film makers and
exhibitors and through their call for destroying multiplexes, malls,
cinema-halls, theaters etc. in order to prevent the exhibition of
films;
c) Issue a writ or order or direction in the nature of Mandamus
or any other appropriate Writ or order directing all the state
governments to initiate forthwith action under the Indian Penal
Code 1860 and the Prevention of Destruction to Public Property
Act 1984 against persons who commit, cause to commit and
incite violence and acts of destruction with the intention of
preventing and disrupting the screening of films which are certified
for public exhibition under the Cinematograph Act, 1952 as it is
violative of Article 19 (1)(a) of the Constitution of India, in the
interest of justice; and ;
d) Issue a writ or order or direction in the nature of Mandamus
or any other appropriate Writ or order directing the respondents
to recover the additional expenditure involved in providing security
to film exhibition centers from those people who have raised
threats against exhibiting certified films, in the interest of justice;
and
e) Issue a writ or order or direction in the nature of Mandamus
or any other appropriate Writ or order directing the respondents
to complete the investigation and trial in such offences in a time
bound manner, in the interest of justice; and
f) Issue a writ or order or direction in the nature of Mandamus
or any other appropriate Writ or order that the bail applications,
if any, moved by persons arrested for committing, causing,
abetting or inciting acts of violence and destruction with the
intention of preventing and disrupting the screening of films
certified for public exhibition under the Cinematograph Act 1952
will be allowed only on condition that they deposit the sum
equivalent to the loss quantified to have been caused by them, or
furnish security for such quantified loss and also, in the interest
of justice; and
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g) Issue a writ or order or direction in the nature of Mandamus
or any other appropriate Writ or order that the assets and
properties of such arrested persons and also the leaders of
protesting groups which incited or abetted violence and
destruction, will remain under attachment for the loss quantified
to have been caused until its realization, in the interest of justice;
and
h) Issue a writ in the nature of mandamus, or any other
appropriate writ, direction or order directing the respondents to
file status reports regarding the implementation of actions taken
by them with respect to guidelines formulated by this Hon'ble
Court in strictly follow and implement the guidelines formulated
by this Hon'ble Court in In Re: Destruction of Public and
Private Properties v. Govt. of AP (2009) 5 SCC, particularly
mentioned in Paragraph 12 and 15 of SCC Report of the said
judgment.
i) Issue a writ in the nature of mandamus, or any other
appropriate writ, direction or order directing the respondents to
explore the options of invoking the provisions of Unlawful
Activities (Prevention) Act 1967 against the outfits/groups/
organizations which make brazen threats on film makers and
artists, and indulge in systematic and organized acts of destruction
and damage of property so as to achieve their unlawful ends by
striking terror in society;
j) Please to issue any other writ or direction(s) or Order(s) as
the Hon'ble Court may deem fit and proper in view of the facts
and circumstances of the case and in the interest of justice."
3. The principal relief is to issue directions to the States/Union
of India to strictly implement the decision rendered by this Court in In
Re: Destruction of Public and Private Properties Vs. State of Andhra
Pradesh & Ors.1 concerning the large-scale destruction of properties
in the name of agitations, bandhs, hartals etc. The Court, after taking
note of certain suggestions given by the Committees appointed by the
Court inter alia recommended amendments to the Prevention of Damage
to Public Property Act, 1984 (for short 'the PDPP Act'), Criminal
Procedure Code, 1973 and other criminal law statutes; and also set out
1 (2009) 5 SCC 212
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[A. M. KHANWILKAR, J.]
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guidelines to assess damages to property in the absence of a statutory
framework. The relevant portion of the judgment is set out hereunder:
"4. Two reports have been submitted by the Committees. The
matter was heard at length. The recommendations of the
Committees headed by Justice K.T. Thomas and Mr. F.S.
Nariman have been considered. Certain suggested guidelines
have also been submitted by learned Amicus Curiae.
 5.The report submitted by Justice K.T. Thomas Committee
has made the following recommendations:
(i) The PDPP Act must be so amended as to incorporate a
rebuttable presumption (after the prosecution established the two
facets) that the accused is guilty of the offence.
(ii) The PDPP Act to contain provision to make the leaders of
the organisation, which calls the direct action, guilty of abetment
of the offence.
(iii) The PDPP Act to contain a provision for rebuttable
presumption.
(iv) Enable the police officers to arrange videography of the
activities damaging public property.
6. The recommendations of the Justice Thomas Committee have
been made on the basis of the following conclusions after taking
into consideration the materials.
In respect of (i)
7. "According to this Committee the prosecution should
be required to prove, first that public property has been
damaged in a direct action called by an organization and
that the accused also participated in such direct action.
From that stage the burden can be shifted to the accused
to prove his innocence. Hence we are of the view that in
situations where prosecution succeeds in proving that
public property has been damaged in direct actions in
which accused also participated, the court should be given
the power to draw a presumption that the accused is guilty
of destroying public property and that it is open to the
accused to rebut such presumption. The PDPP Act may
be amended to contain provisions to that effect."
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In respect of (ii)
8. "Next we considered how far the leaders of the organizations
can also be caught and brought to trial, when public property is
damaged in the direct actions called at the behest of such
organizations. Destruction of public property has become so
rampant during such direct actions called by organizations. In
almost all such cases the top leaders of such organisations who
really instigate such direct actions will keep themselves in the
background and only the ordinary or common members or grass
root level followers of the organisation would directly participate
in such direct actions and they alone would be vulnerable to
prosecution proceedings. In many such cases, the leaders
would really be the main offenders being the abettors of
the crime. If they are not caught in the dragnet and allowed
to be immune from prosecution proceedings, such direct
actions would continue unabated, if not further escalated,
and will remain a constant or recurring affair.
Of course, it is normally difficult to prove abetment of the offence
with the help of direct evidence. This flaw can be remedied
to a great extent by making an additional provision in
PDPP Act to the effect that specified categories of leaders
of the organization which make the call for direct actions
resulting in damage to public property, shall be deemed
to be guilty of abetment of the offence. At the same time, no
innocent person, in spite of his being a leader of the organization
shall be made to suffer for the actions done by others. This
requires the inclusion of a safeguard to protect such innocent
leaders."
In respect of (iii)
9. "After considering various aspects to this question we
decided to recommend that prosecutions should be
required to prove (i) that those accused were the leaders
or office bearers of the organisation which called out the
direct actions and (ii) that public property has been damaged
in or during or in the aftermath of such direct actions. At
that stage of trial it should be open to the court to draw a
presumption against such persons who are arraigned in
the case that they have abetted the commission of offence.
KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
[A. M. KHANWILKAR, J.]
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However, the accused in such case shall not be liable to
conviction if he proves that (i) he was in no way connected
with the action called by his political party or that (ii) he
has taken all reasonable measures to prevent causing
damage to public property in the direct action called by
his organisation."
In respect of (iv)
10. "The Committee considered other means of adducing
evidence for averting unmerited acquittals in trials
involving offences under PDPP Act. We felt that one of the
areas to be tapped is evidence through videography in addition
to contemporaneous material that may be available through the
media, such as electronic media. With the amendments brought
in the Evidence Act, through Act 21 of 2000 permitting evidence
collected through electronic devices as admissible in evidence,
we wish to recommend the following:
i) If the officer in charge of a police station or other law enforcing
agency is of opinion that any direct action, either declared or
undeclared has the potential of causing destruction or damage to
public property, he shall avail himself of the services of video
operators. For this purpose each police station shall be
empowered to maintain a panel of local video operators who
could be made available at short notices.
(ii) The police officer who has the responsibility to act on the
information that a direct action is imminent and if he has reason
to apprehend that such direct action has the potential of causing
destruction of public property, he shall immediately avail himself
of the services of the videographer to accompany him or any
other police officer deputed by him to the site or any other place
wherefrom video shooting can conveniently be arranged
concentrating on the person/ persons indulging in any acts of
violence or other acts causing destruction or damage to any
property.
iii) No sooner than the direct action subsides, the police officer
concerned shall authenticate the video by producing the
videographer before the Sub Divisional or Executive Magistrate
who shall record his statement regarding what he did. The original
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tapes or CD or other material capable of displaying the recorded
evidence shall be produced before the said Magistrate. It is open
to the Magistrate to entrust such CD/material to the custody of
the police officer or any other person to be produced in court at
the appropriate stage or as and when called for.
The Committee felt that offenders arrested for damaging public
property shall be subjected to a still more stringent provision
for securing bail. The discretion of the court in granting bail to
such persons should be restricted to cases where the court feels
that there are reasonable grounds to presume that he is not guilty
of the offence. This is in tune with Section 437 of the Code of
Criminal Procedure, 1973 and certain other modern Criminal Law
statutes. So we recommend that Section 5 may be amended
for carrying out the above restriction.
Thus we are of the view that discretion to reduce the
minimum sentence on condition of recording special
reasons need not be diluted. But, instead of "reasons"
the court should record "special reasons" to reduce the
minimum sentence prescribed.
However, we felt that apart from the penalty of
imprisonment the court should be empowered to impose
a fine which is equivalent to the market value of the
property damaged on the day of the incident. In default of
payment of fine, the offender shall undergo imprisonment
for a further period which shall be sufficient enough to
deter him from opting in favour of the alternative
imprisonment."
11. The recommendations according to us are wholesome
and need to be accepted.
12. To effectuate the modalities for preventive action and
adding teeth to enquiry/investigation following guidelines
are to be observed:
As soon as there is a demonstration organized:
(I) The organizer shall meet the police to review and revise
the route to be taken and to lay down conditions for a
peaceful march or protest;
KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
[A. M. KHANWILKAR, J.]
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(II)All weapons, including knives, lathis and the like shall
be prohibited;
(III) An undertaking is to be provided by the organizers
to ensure a peaceful march with marshals at each relevant
junction;
(IV) The police and State Government shall ensure
videograph of such protests to the maximum extent
possible;
(V) The person in charge to supervise the demonstration
shall be the SP (if the situation is confined to the district)
and the highest police officer in the State, where the
situation stretches beyond one district;
(VI) In the event that demonstrations turn violent, the
officer-in-charge shall ensure that the events are
videographed through private operators and also request
such further information from the media and others on the
incidents in question.
(VII) The police shall immediately inform the State
Government with reports on the events, including damage,
if any, caused .
(VIII) The State Government shall prepare a report on
the police reports and other information that may be
available to it and shall file a petition including its report
in the High Court or Supreme Court as the case may be
for the Court in question to take suo motu action.
13. So far as the Committee headed by Mr. F.S. Nariman is
concerned the recommendations and the views are essentially
as follows:
"There is a connection between tort and crime - the purpose of
the criminal law is to protect the public interest and punish
wrongdoers, the purpose of tort-law is to vindicate the rights of
the individual and compensate the victim for loss, injury or damage
suffered by him: however - the distinction in purpose between
criminal law and the law of tort is not entirely crystal-clear, and
it has been developed from case-to-case. The availability of
exemplary damages in certain torts (for instance) suggest an
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overtly punitive function - but one thing is clear: tort and criminal
law have always shared a deterrent function in relation to
wrongdoing.
The entire history of the development of the tort law shows a
continuous tendency, which is naturally not uniform in all common
law countries, to recognise as worthy of legal protection, interests
which were previously not protected at all or were infrequently
protected and it is unlikely that this tendency has ceased or is
going to cease in future. There are dicta both ancient and modern
that categories of tort are not closed and that novelty of a claim
is no defence. But generally, the judicial process leading to
recognition of new tort situations is slow and concealed for judges
are cautious in making innovations and they seldom proclaim
their creative role. Normally, a new principle is judicially accepted
to accommodate new ideas of social welfare or public policy
only after they have gained their recognition in the society for
example in extra judicial writings and even then the decision
accepting the new principle is supported mainly by expansion or
restriction of existing principles which 'gradually receive a new
content and at last a new form'.
Where persons, whether jointly or otherwise, are part of a protest
which turns violent, results in damage to private or public property,
the persons who have caused the damage, or were part of the
protest or who have organized will be deemed to be strictly liable
for the damage so caused, which may be assessed by the ordinary
courts or by any special procedure created to enforce the right.
This Committee is of the view that it is in the spirit of the
observation in M.C. Mehta v. Union of India that this Court
needs to lay down principles on which liability could be
fastened and damages assessed in cases in which due to
behaviour of mobs and riotous groups public and private
property is vandalized and loss of life and injury is
occasioned to innocent persons. These are clearly "unusual
situations", which have arisen and likely to arise in future and
need to be provided for in the larger interest of justice.
It is on the principles set out above that (it is suggested) that the
Hon'ble Court should frame guidelines and venture to evolve
KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
[A. M. KHANWILKAR, J.]
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new principles (of liability) to meet situations that have already
arisen in the past and are likely to arise again in future, so that
speedy remedies become available to persons affected by loss
of life, injury and loss of properties, public or private, as a result
of riots and civil commotions.
Damages in the law of torts in India include:
(a) damages based on the concept of restituto in interregnum to
enable total recompense; and
(b) exemplary damages"
14. The basic principles as suggested by Nariman
Committee are as follows which we find to be appropriate:
(1) The basic principle for measure of damages in torts (i.e.
wrongs) in property is that there should be 'restituto in
interregnum' which conveys the idea of "making whole".
(2) Where any injury to property is to be compensated by damages,
in settling the sum of money to be given for reparation by way of
damages the Court should as nearly as possible get at that sum
of money which will put the party who has suffered, in the same
position as he would have been in if he had not sustained the
wrong for which he is now getting his compensation or reparation.
(3) In this branch of the law, the principle of restitution in
interregnum has been described as the "dominant" rule of law.
Subsidiary rules can only be justified if they give effect to that
rule.
(3.1) In actions in tort where damages are at large i.e. not limited
to the pecuniary loss that can be specifically proved, the Court
may also take into account the defendant's motives, conduct
and manner of committing the tort, and where these have
aggravated the plaintiff's damage e.g. by injuring his proper
feelings of dignity, safety and pride - aggravated damages may
be awarded. Aggravated damages are designed to compensate
the plaintiff for his wounded feelings-they must be distinguished
from exemplary damages which are punitive in nature and which
(under English Law) may be awarded in a limited category of
cases.
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(3.2) "Exemplary damages" has been a controversial topic for
many years. Such damages are not compensatory but are
awarded to punish the defendant and to deter him and others
from similar behaviour in the future. The law in England (as
restated in Rookes v. Barnard affirmed in Cassell v. Broome) is
that such damages are not generally allowed. In England they
can only be awarded in three classes of cases (i) where there is
oppressive, arbitrary or unconstitutional action by servants of
the Government; (ii) where the defendants conduct has been
calculated by him to make a profit for himself which may well
exceed the compensation payable to the claimant; and (iii) where
such damages are provided by statute.
(3.3) In the decision in Kuddus v. Chief Constable of
Leicestershire Constabulary, the most recent judgment of the
House of Lords, the Law Lords did not say that in the future the
award of exemplary damages should be restricted only in the
cases mentioned in Rookes v. Barnard (as affirmed in Cassell v.
Broome). Lord Nicholls in his speech at page 211 stated that:
"68. ...the essence of the conduct constituting the Court's
discretionary jurisdiction to award exemplary damages is conduct
which was such as to be an outrageous disregard of the claimant's
rights.
(3.4) " In this committee's view, the principle that Courts
in India are not limited in the law of torts merely to what
English Courts say or do, is attracted to the present
situation.