Advocate Sayada Shaheen Ara Laily Vs. Bangladesh & others 2017 (1) LNJ 382

Case No: Writ Petition No. 8083 of 2014

Judge: J. B. M. Hassan. J.

Court: High Court Division,

Advocate: Mr. Aklas Uddin Bhuiyan, Mr. Abdul Matin Khasru,

Citation: 2017 (1) LNJ 382

Case Year: 2017

Appellant: Advocate Sayada Shaheen Ara Laily

Respondent: Bangladesh & others

Subject: Writ Jurisdiction

Delivery Date: 2017-06-22

HIGH COURT DIVISION

 

(SPECIAL ORIGINAL JURISDICTION)

 

 

 

Moyeenul Islam Chowdhury, J

And

J. B. M. Hassan, J

Judgment on

29.01.2017

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Advocate Sayada Shaheen Ara Laily

. . . Petitioner

-VERSUS-

Bangladesh represented by the Secretary, Ministry of Information and others.

. . . Respondents

     

 

‡Kej †Uwjwfkb †bUIqvK© cwiPvjbv AvBb, 2006

 

aviv 15, 18 Ges 29

 

The Act, 2006 incorporates that three authorities i.e. (1) the Government (Ministry of Information) or (2) the Licensing Authority or (3) the Magistrate, 1st class/Metropolitan Magistrate can take action under sections 15 or 18 or 29 of the said Act respectively for violation of section 19 thereof. But in all the circumstances as mentioned above, proper enquiry/adjudication as to breach of section 19 is required. Moreover, the allegations as made in this writ petition as to violation of section 19 of the Act having been denied by the respondents, have appeared to us as disputed questions of facts. So the same have to be assessed/adjudicated and it can only be done under the provisions of section 18 or before other adjudicating forums as mentioned above but certainly not under the writ petition. Having regard to the above, there being equally efficacious alternative remedy and on failure to avail of the same, the present writ petition is misconceived and the same is premature as well. Anyway, the petitioner is at liberty to bring complaints, if any, under section 18 of the Act, 2006 against telecast of programmes by any TV channel.                                            . . . (21)

 

Supreme Court of Bangladesh (High Court Division) Rules, 1973

 

Rule 3(7)(b)(c)

 

On a plain reading of sub-rule (7) (b), it appears that after rejection of a Motion application (writ petition) as not being pressed, a fresh writ petition on the same ground/ cause cannot be filed. However, sub-rule (7) (c) has relaxed the said embargo providing a special privilege incorporating provisions that a fresh writ petition (Motion) can be filed subsequently subject to having any new/ different ground and it must contain specific reference to the previous motion/application/ petition and the rejection order.    . . . (26)

 

Supreme Court of Bangladesh (High Court Division) Rules, 1973

 

Rule 3(7)(c)

 

Therefore, we are led to hold that with a view to putting an end to the litigation/ dispute the writ jurisdiction follows the principle of res judicata debarring filing of any fresh writ petition on the self-same adjudicated cause and even after rejection of the writ petition (motion) as not being pressed. Yet the High Court Division Rules provide a very narrow space incorporating sub rule (7)(c) of rule 3 of the Chapter IVA in filing fresh writ petition (Motion) on special circumstances and that to maintain strict limitation  thereof the Rules require two conditions, firstly, new/different ground and secondly, the writ petition shall contain specific reference to the previous petition/ motion/application and the rejection order. Therefore, the requirement of rules must be followed in entertaining any fresh writ petition on the self same cause.          . . . (27)

 

Mr. Aklas Uddin Bhuiyan, Advocate with

 

Ms. Sayada Shaheen Ara Laily (in person)

 

Mr. Md. Motaher Hossain Sazu, DAG with

 

Ms. Purabi Rani Sharma, AAG  

 

. . . For the respondent No.1

 

Mr. Abdul Matin Khasru with

 

Mr. Pankaj Kumar Kundu, Advocates

 

. . .For the respondent No.5

 

Mr. Shamsul Hasan, Advocate

 

. . . For the respondent No. 7

 

JUDGMENT

 

J. B. M. Hassan, J. This Rule Nisi was issued on an application under article 102 (2)(ii) of the Constitution of the People’s Republic of Bangladesh calling upon the respondents to show cause as to why a direction should not be given upon them to stop telecast of the Indian Television (TV) Channels, namely, Star Jalsha, Star Plus and Zee Bangla in Bangladesh being violative of sub-sections (3),(4),(5),(8),(9) and (10) of section 19 of ­Lhm ®V¢m¢ine ®eVJu¡LÑ f¢lQme¡ BCe, 2006” and or such other or further order or orders passed as to this Court may seem fit and proper.

 

2.            Pertinent facts leading to issuance of the Rule Nisi, inter alia, are that the petitioner is a member of the Supreme Court Bar Association and a conscious citizen of the country. The petitioner noticed a report published on 02.08.2014 in the ÔÔ‰`wbK Avgv‡`i mgqÕÕ with a headline “f¡¢Ml ®fË­j fË¡e ¢hpSÑe” and subsequently, on 10.08.2014 another report was published in the daily newspaper with a headline “ø¡l Smp¡ ®cM­a e¡ ®f­l BaÈqaÉ¡”.  In the writ petition the petitioner also mentioned a report published on 04.08.2014 in the “ ‰`wbK hvq hvq w`b” with a headline “f¡¢M e¡ ®f­u Hh¡l Bœ¡C­u ú¥m R¡œ£l BaÈqaÉ¡”; In the ‰`wbK †fv‡ii KvMR” a report was published on 04.08.2014 with captioned “p¢lo¡h¡s£­a i¡la£u ¢V¢i QÉ¡­em h­ål c¡¢h­a j¡ehhåe”;  in the ‰`wbK Kv‡ji KÉ” dated 09.08.2014 a news was published titled “i¡la£u ¢p¢lu¡m ®cM­a e¡ ®cJu¡u p¡i¡­l ú¤m R¡œ£l BaÈqaÉ¡” wherein it was stated that “ .......­h¡­T e¡ ®p ®h¡­T e¡ ®cM¡l SeÉ ¢V¢i Q¡m¤ L­lz H pju a¡l j¡ a¡­L e¡VL e¡ ®c­M fs­a hp­a h­m ........”. In the writ petition it is also stated that on 30.08.2014 the popular columnist Mr. Muhammad Aminul Hoque wrote a column in the Noya Digonto wherein he clearly expressed that those channels are the cause of killing, rape, eve-teasing, illegal affairs, divorce and social erosion. Thus, the petitioner has become aggrieved at the telecast of Indian channels, namely, “Star Jalsha, Star Plus and Zee Bangla” as articulated in the aforementioned several daily newspapers.

 

3.            The petitioner further states that the distributors are telecasting all the aforesaid channels without prior permission of the Government in violation of section 3 of ­Lhm ®V¢m¢ine ®eVJu¡LÑ f¢lQ¡me¡ BCe, 2006” (shortly, the Act, 2006). The distributors and the agents of the aforesaid channels are also violating sections 22 and 32 of the Act, 2006 i.e. without making payment for telecasting the channels. The petitioner also states that by telecasting the Indian programmes the aforementioned channels are seriously affecting our culture misguiding the minors and the students and thereby leading them to commit suicide which is a clear violation of section 19 (10) of the Act, 2006 and hence the matter involves a question of public importance. It is again stated in the writ petition that the channels, namely, “Star Jalsha, Star Plus and Zee Bangla” are seriously hampering the public safety which has been reflected in the various newspapers with the reports of committing suicide in different districts of the country, but the respondents did not pay heed to the same as well as to such violation of law by the TV channels although the respondents are required to take steps in this regard under the provisions of the Act, 2006. The petitioner lastly states that a writ petition on the self same cause was moved earlier before a Division Bench of the High Court Division being the writ petition No. 7353 of 2014 and after hearing, the same was rejected as being not pressed.

 

4.            In this backdrop, the petitioner has filed this writ petition and obtained the present Rule Nisi.

 

5.            The respondent No.1 has filed an affidavit-in-opposition controverting the statements made in the writ petition. Contentions of this respondent, in brief, are that according to rule 3(1)(ga) of “­Lhm ®V¢m¢ine ®eVJu¡LÑ f¢lQme¡ J m¡C­p¢¾pw ¢h¢dj¡mv, 2010” (shortly, the Rules, 2010), a local distributor of Bangladesh can apply to the Government for downlinking  any foreign pay channel. Accordingly, the local distributors, namely, Digi Jadu Broadband Ltd. (respondent No. 5) got the licence for telecasting the channels, namely, “Star Jalsha, Star Plus and other channels on observance of all the required formalities as well as on payment of required fees in accordance with the Rules, 2010. It is further contended that as per sections 22 and 32 of the Act, 2006 and the Foreign Exchange Regulations Act, 1947, the distributors took permission from the Ministry of Information for sending remittance and as such the contentions of the petitioner as to violation of those laws are not true. The respondent No.1 further contends that the Government is regularly monitoring the programmes telecast by the TV Channels and that they shall take action against the TV Channels on any violation of the Act, 2006 in appropriate cases. By the supplementary affidavit, the respondent No.1 further states that the petitioner never raised any complaint before the respondent No.1 or the Licensing Authority in accordance with the provisions provided in the Act, 2006 and therefore, she is not entitled to seek any relief by filing this writ petition.

 

6.            The respondent No.5, the Chairman, Digi Jadu Broadband Ltd. appearing in the Rule Nisi, has filed an affidavit-in-opposition controverting the statements made in the writ petition. Contentions of this answering respondent, inter alia, are that in compliance with the required formalities under the Act, 2006 this respondent obtained the licence for telecasting certain foreign channels including Star Jalsha and Star Plus on payment of required fees. Although the last duration of the lincese was till 2016; but before its expiry, this respondent applied to the appropriate authority for extending the period of duration of licence which is now under consideration. This respondent categorically states that the aforementioned channels do not telecast any programme affecting the culture and religious sentiment of the people in consequence of which those channels earned immense popularity of the viewers of the country. In the circumstances, at the behest of vested quarters, out of grudge the petitioner has brought this writ petition with a malafide intention only against the three channels out of 74 foreign channels. It is further contended that the main reason for committing suicide are on various accounts, in particular, desperation for not getting their desired things and certainly,  it is not the TV channels, namely, Star Jalsha and Star Plus etc. Further contentions of the respondent are that after getting licence from the concerned authority the respondent No.5 invested approximately Tk. 70 crore in the year 2014-2016 employing about 300 employees and that without making any allegation before the concerned authority, the petitioner has directly filed this premature writ petition at the instance of the vested quarters.

 

7.            The added respondent No.7, namely, Nationwide Media Limited has also filed an affidavit-in-opposition, controverting the statements made in the writ petition. Adopting the contentions of the respondents no.1 and 5, this respondent further contends that it has obtained the licence for distributing the TV channel, Zee Bangla in accordance with the Act, 2006. The contents of Zee Bangla having high entertainment value, have earned immense popularity of the viewers and that it has not violated any provision of the Act, 2006 as well as the Rules framed thereunder. The respondent further contends that the petitioner’s interest is not real and the writ petition has been filed only to generate publicity for herself and to create sensation. It is also contended that a writ petition on the self-same issue having been rejected earlier as not being pressed, the present writ petition has been filed in violation of sub-rule (7) of rule 3 of Chapter IVA of the Supreme Court of Bangladesh (High Court Division) Rules, 1973 (as amended up to November, 2012) shortly, the High Court Division Rules. It is again contended that the news reports have to be substantiated by the reporters of the concerned newspapers and that the opinions and the views as contained in the annexed-CD to the supplementary affidavit are biased and therefore, those can not be relied upon without proper proof in accordance with law. 

 

8.            Mr. Aklas Uddin Bhuiyan, the learned Advocate appearing for the petitioner with Advocate Sayada Shaheen Ara Laily, (in person) has placed the writ petition along with annexures, the supplementary affidavits thereto. The learned Advocate submits that several vulgar and obscene programmes were telecast by the channels, namely, Star Jalsha, Star Plus and Zee Bangla affecting our religion and culture and the programes, namely, “¢Lle j¡m¡” and “h¤­T e¡ ®p h¤­T e¡” have been reported in various newspapers that many teenage girls, on being swayed by emotion, committed suicide and that some of the newspapers have also published that the citizens of the country are demoralized due to telecasting of vulgar and obscene programmes by the aforementioned TV channels which are clear violations of section 19 of the Act, 2006. Drawing our attention to sub-sections (3),(4),(5),(8),(9) and (10) of section 19 of the Act, 2006, Mr. Bhuiyan further submits that the respondents ought to have stopped these channels in accordance with section 15 of the Act, 2006; but having failed to do so,  they are required in their regard to be directed in this regard by this writ petition. In support of his submissions, Mr. Bhuiyan has drawn our attention to a particular CD (annexures-L, P and Q to the supplementary affidavit) wherein some comments were made by different persons. He also submits that the distributors do not have any licence in accordance with section 4 of the Act, 2006. Despite they are distributing the programmes of the Indian (foreign) channels which is a clear violation of the Act, 2006. He lastly submits that section 15 of the Act, 2006 empowers the respondents to stop telecasting of TV channels  for violation of the provisions of section 19 of the Act, 2006 but they have utterly failed to take any such action against the mentioned channels for violating section 19 of  the Act, 2006.

 

9.            Mr. Md. Motahar Hossain Sazu, the learned Deputy Attorney General (DAG) with Ms. Purabi Rani Sharma, the learned Assistant Attorney General (AAG) appearing for the respondent No.1 has placed the relevant provisions of the Act, 2006 and the Rules, 2010. The learned DAG contends that sections 15, 18 and 28 of the Act, 2006 incorporate provisions for taking action against the distributors for violation of the Act, 2006 pursuant to which the authority has been taking action against misdoers either on the basis of complaint under section 18 of the Act or the authority on its own motion. Learned DAG further contends that till today neither the petitioner nor any other person has ever raised any objection or complaint against these three channels before the concerned authority. He also contends that the mentioned channels have been telecasting the programmes having the licence from the Government in accordance with the provisions of the Act, 2006 and that there being no objection from any quarter, the Government did not take any action against those distributors or channels under the Act, 2006. 

 

10.        Mr. Abdul Matin Khasru, the learned Advocate with Mr. Pankaj Kumar Kundu, the learned Advocate appearing for the respondent No.5 (distributor of Star Jalsha and Star Plus), at the very outset, raises the question of maintainability of the writ petition submitting that on the self same issue, the petitioner earlier moved a writ petition being writ petition No. 7353 of 2014 and that after hearing while the Court was not inclined to issue any Rule, the petitioner made a prayer not to press the writ petition pursuant to which the writ petition was rejected as being not pressed. Therefore, the present writ petition without mentioning any new ground and specification of the earlier order having been filed, is not evidently maintainable in view of sub-rule (7) (b) (c) of rule 3 of Chapter IVA of the High Court Division Rules. He further contends that the CDs (Annexure L,P and Q to the supplementary affidavit) shown before the Court, do not disclose any of vulgar or obscene programmes as alleged by the petitioner. Moreover, the petitioner never filed any complaint before the Licensing Authority in accordance with section 18 of the Act, 2006 and as such she can not maintain this premature writ petition.  He again contends that the allegations brought by the petitioner are all disputed questions of facts which cannot be decided in this writ petition for taking any punitive action against the mentioned channels distributed by the respondent no. 5.

 

11.        Adopting all the submissions advanced by the respondents no. 1 and 5, Mr. Shamsul Hasan, the learned Advocate appearing for the added respondent No.7 (distributor of Zee Bangla) contends that the allegations of commission of suicide and demoralization cannot be solely attributable to the airing of mentioned three channels and that there are other reasons for suicide including lack of motivation.  He further contends that the Act, 2006 as well as the Rules, 2010 specifically incorporate the punitive provisions for violation of section 19 of the Act, 2006 to be decided on the basis of complaint under section 18 of the Act, 2006. But the petitioner never filed any complaint under section 18 of the Act, 2006 for taking action under the said provision and thus without availing herself of the alternative remedy, the present writ petition cannot be maintained.

 

12.        We have gone through the writ petition, the affidavits-in-opposition separately filed by the respondents no.1, 5 and 7 as well as the supplementary affidavits thereto. We have also thoroughly examined the Act, 2006 and the Rules, 2010 framed in accordance with section 34 of the Act.

 

13.        Although the contending parties have advanced their submissions on various accounts but the Rule Nisi was issued asking the respondents to show cause as to why they should not be directed to stop telecast of three TV channels, namely, Star Jalsha, Star Plus and Zee Bangla for violation of sub-sections (3),(4),(5),(8),(9) and (10) of section 19 of the Act, 2006. In support of the Rule Nisi, the learned Advocate for the petitioner has placed the allegations about telecast of several programmes by the said TV channels affecting our society, particularly, drawing our attention to some paper clippings which reflect that three minor girls committed suicide for not having their desired dress (cvwL Rvgv) which earned popularity/craze of the viewers of the programmes telecast by the aforementioned TV channels so much so that the petitioner alleges that the respondent channels are airing vulgar and obscene programmes which lead our society to a disappointing destination. 

 

14.        In view of the above allegations, to appreciate the submissions of the learned Advocate for the contending parties, we are to first examine the relevant provisions in this regard, in particular, sections 15, 18, 19, 28 and 29 of the Act, 2006, which are reproduced herein below for better understanding of the issue:

 

15z   Ae¤­j¡¢ca QÉ¡­em p’¡me h¡ pÇfÐQ¡l Øq¢NaLlZ, CaÉ¡¢cz- (1) Ae¤­j¡¢ca ®L¡e QÉ¡­em ¢hfZe, p’¡me h¡ pÇfÐQ¡lL¡­m k¢c plL¡­ll ¢eLV HC j­jÑ fËa£uj¡e qu ®k, Eš² QÉ¡­e­m fËQ¡¢la Ae¤ù¡e d¡l¡ 19  Hl f¢lf¿Û£ a¡q¡ qC­m plL¡l a¡vr¢eL h¡ ®rœja, k¡Q¡Cf§hÑL Eš² QÉ¡­e­ml ¢hfZe, p’¡me h¡ pÇfÐQ¡l p¡j¢uL h¡ Øq¡u£i¡­h hå L¢lu¡ ®cJu¡l ¢e­cÑn ¢c­a f¡¢l­hz

 

(2)Øq¡u£i¡­h hå L¢lu¡ ®cJu¡ ®L¡e QÉ¡­e­ml ¢hfZe, p’¡me h¡ pÇfÐQ¡l Eš² QÉ¡­e­ml ¢Xp¢VÊ¢hEV­ll ¢m¢Ma B­hc­el ­fË¢r­a plL¡l Efk¤š² j­e L¢l­m, ¢edÑ¡¢la ¢g f¢l­n¡d p¡­f­r, f¤el¡u Q¡m¤ L¢lh¡l ¢e­cÑn ¢c­a  f¡¢l­hz

 

18z NË¡qL­cl A¢i­k¡N NËqZ J ¢eÖff¢šz- (1) HC BC­el Ad£e ®ph¡fËc¡eL¡l£ LaѪL fËcš ®ph¡ fË¡¢çl ®r­œ NË¡qL­cl ®L¡e A¢i­k¡N b¡¢L­m Eq¡ pw¢nÔø m¡C­p¢¾pw LaѪfr hl¡h­l ¢m¢Mai¡­h ®fn Ll¡ k¡C­hz

 

(2) Ef-d¡l¡ (1)  Hl Ad£e A¢i­k¡N fË¡¢çl fl m¡C­p¢¾pw  LaѪfr  Eq¡l kb¡bÑa¡  k¡Q¡Cf§hÑL ®ph¡fËc¡eL¡l£­L acÚ¢hl¦­Ü Be£a A¢i­k¡­Nl  ¢hou¢V Ae¢dL 7 (p¡a)  ¢c­el  j­dÉ ¢eÖf¢š L¢lh¡l SeÉ ¢e­cÑn ¢c­a f¡¢l­h Hhw ¢e­cnÑ f¡m­el hÉbÑa¡l ®r­œ m¡C­p¢¾pw  LaѪfr Eq¡l m¡C­p¾p h¡¢am h¡ p¡j¢uLi¡­h Øq¢Na  L¢l­a f¡¢l­hz

 

19z pÇfÐQ¡l h¡ p’¡m­el ®r­œ h¡d¡-¢e­odz- ®ph¡fËc¡eL¡l£ ®Lhm ®V¢m¢ine ®eVJu¡­LÑl j¡dÉ­j ®kph Ae¤ù¡e pÇfÐQ¡l h¡ p’¡me L¢l­a f¡¢l­h e¡ a¡q¡ ¢ejÀl¦f, kb¡x-

 

(1) ®c­nl AMäa¡, ü¡d£ea¡, p¡hÑ­i±jaÄ J j¤¢š²k¤­Ül ®Qae¡ J BcÑ­nl  f¢lf¿Û£ ®L¡e Ae¤ù¡e;

 

(2) l¡øÊ f¢lQ¡me¡l j§me£¢a Hhw l¡øÊ£u e£¢al f¢lf¿Û£ ®L¡e Ae¤ù¡e;

 

(3) ¢qwp¡aÄL, p¿»¡p, ¢h­ào J Afl¡dpð¢ma ®L¡e Ae¤ù¡e;

 

(4) h¡wm¡­c­nl C¢aq¡p J I¢aqÉ, ¢nr¡ J pwúª¢a, p¡j¡¢SL J dj£Ñu j§mÉ­h¡d, S¡a£u pwq¢a  J l¡øÊ£u i¡hj§¢aÑl f¢lf¿Û£ ®L¡e Ae¤ù¡e;

 

(5) S¡a£u ¢el¡fš¡ J Seü¡bÑ q¡¢eLl ®L¡e Ae¤ù¡e;

 

(6) ®c­nl ®L¡e pÇfÐc¡u h¡ ®N¡ù£l B­hN Ae¤i¨¢a­a BO¡a q¡¢e­a f¡­l Hje ®L¡e Ae¤ù¡e;

 

(7) The Censorship of films Act, 1963 (Act XVIII of 1963) h¡ Eq¡l Ad£e  fËe£a ¢h¢d h¡ e£¢aj¡m¡l f¢lf¿Û£ ®L¡e Ae¤ù¡e;

 

(8) An¡m£e h¡ Bœ²jZ¡aÄL ®L¡e l¢pLa¡, A‰i‰£, eªaÉN£a, ¢h‘¡fe, pwm¡f h¡ p¡hV¡C­Vm       pð¢ma ®L¡e Ae¤ù¡e;

 

(9) eNÀa¡, eNÀ R¡u¡R¢h, hÙ» E­Çj¡Qe cªnÉ, ®cq fËcnÑe, A­n¡ie Aw‰i‰£, ®k¡~e¢œ²u¡l Cw¢Na p§QL h¡ fËa£L£ e¡Q Abh¡ A­n¡ie c§nÉ¡hm£ pð¢ma Hje ­L¡e AnÔ£e Ae¤ùÉe;

 

(10) EµRªwMma¡, dhwpk‘, ¢nö-¢L­n¡l Afl¡d h¡ Af pwØL«¢a­L BLÑoZ£u J Evp¡¢qa L¢l­a f¡­l h¡ ¢nö­cl h¤¢Üjš¡ ¢hL¡­n r¢al L¡lZ qC­a f¡­l Hje ®L¡e Ae¤ù¡e;

 

(11) j§mÉ a­bÉl hÙº¢eùa¡ Ar¨ZÀ e¡ l¡¢Mu¡ pÇfÐQ¡¢la Hje ®L¡e Ae¤ù¡e;

 

(12) AeÉ ®L¡e BCe à¡l¡ h¡¢la h¡ ®p¾plL«a R¡u¡R¢h h¡ ­L¡e AnÔ£m Ae¤ù¡e;

 

(13) h¡wm¡­c­nl cnÑL­cl SeÉ ¢h­cn£ ®L¡e QÉ¡­e­ml j¡dÉ­j ¢h‘¡fe;

 

(14) plL¡­ll Ae¤j¢a hÉ¢a­l­L p¤¢e¢cøi¡­h h¡wm¡­c­nl cnÑL­cl E­Ÿ­nÉ ¢h­cn£ QÉ¡­e­ml   ®L¡e Ae¤ù¡e pÇfÐQ¡l;

 

28z n¡¢Ù¹z- (1)  HC BC­el Ad£e d¡l¡ 3, 4, 7(3) J (4), 16, 17(2), 17(3), 17(5), 19, 21, 22, 23 J 25 Hl ­L¡e ¢hd¡e mwOe qC­h HL¢V Afl¡dz

 

(2) k¢c ®L¡e hÉ¢š² HC BC­el Ad£e ®L¡e Afl¡d pwOVe L­le, a¡q¡ qC­m ¢a¢e Ae¢dL 2 (c¤C)  hvpl pnËj L¡l¡cä h¡ Ae¢dL 1(HL)  mr V¡L¡ ¢L¿º Ae§Ée 50 (f’¡n)  q¡S¡l V¡L¡ AbÑcä h¡ Eiuc­ä  cäe£u qC­he Hhw Afl¡d f¤el¡hª¢šl ®r­œ ¢a¢e Ae¢dL 3(¢ae) hvpl pnËj L¡l¡cä h¡ Ae¢dL 2(c¤C)  mr V¡L¡ ¢L¿º Ae§Ée 1(HL)  mr V¡L¡ AbÑcä h¡ Eiuc­ä cäe£u qC­hez

 

(3) HC BC­el  AeÉ¡eÉ ¢hd¡e p¡­f­r, ¢h¢d à¡l¡ L¢afu Afl¡d ¢Q¢q²a Hhw  Eš² Afl¡d pwOV­el SeÉ cä ¢edÑ¡lZ Ll¡ kC­h, a­h HCl¦f cä 1 (HL) hvpl pnËj L¡l¡cä h¡ 50 (f’¡n) q¡S¡l V¡L¡ AbÑcä h¡ Eiu c­äl A¢a¢lš² qC­h e¡ z

 

29z Afl¡­dl ¢hQ¡lz- Code of Criminal Procedure, 1898 (Act V of 1898) h¡ AeÉ ®L¡e BC­e k¡q¡ ¢LR¤C b¡L¥L e¡ ®L¡e, HC BC­e h¢ZÑa pLm Afl¡d fËbj ®nËZ£l jÉ¡¢S­ØVÊV h¡ ®j­VÊ¡f¢mV¡e Hm¡L¡u ®j­VÊ¡f¢mV¡e jÉ¢S­ØVÊV LaѪL ¢hQ¡kÑ qC­hz”

 

15.        On a plain reading of the aforesaid provisions, we find that section 19 of the Act has provided a clear guideline about the programmes to be telecast by the TV channels and here law is very much clear to the effect that vulgar or obscene programmes as well as the programmes which adversely affect our society or demoralize the children, cannot be telecast within the territory of the country. Therefore, if the allegations as made by the petitioner are found true, certainly it falls within the mischief of section 19 of the Act and thereby action has to be taken under the law by stopping telecast of the said TV channels. In this regard sections 15, 18 and 28 of the Act are the relevant provisions.

 

16.        Section 15 of the Act, 2006 specifically empowers the Government to stop telecast of the TV channels temporarily or permanently, for violation of any provisions provided in section 19 of the said Act. This action can be taken by the Government but subject to its satisfaction upon verification of facts (k¡Q¡Cf§hÑL) which can only be possible on proper enquiry and by giving the party concerned an opportunity of being heard as the provision envisages “fËa£uj¡e qu ®k” and “k¡Q¡C f§hÑL”.

 

17.        Besides section 18 of the Act, 2006 incorporates a provision for receipt and disposal of any complaint to be made by any consumer. Section 18(2) of the said Act specifically empowers the Licensing Authority to stop telecast of the TV channels on examination of propriety of a complaint under section 18(1) of the said Act by cancelling or suspending licence. According to section 2(16) of the Act, 2006 Licensing Authority means the Deputy Commissioners of the respective districts or any officer appointed by the Government in this regard.  

 

18.        Moreover, sections 28 and 29 of the Act, 2006 also provide a punitive provision by way of adjudication for violation of section 19 and other provisions thereof.

 

19.        Thus, it is apparent that the Act, 2006 itself provides exhaustive provisions for monitoring and controlling the TV channels in telecasting their programmes in accordance with the restrictions provided in section 19 of the Act, 2009. But it has to be done on proper examination and adjudication of the complaint to be brought either by any person or by the Government itself.

 

20.        The petitioner’s grievance is that the Government is not taking any action against those TV channels for violation of section 19 of the Act, 2006. But in the affidavit-in-opposition, the Government states that violation of section 19 of the Act on the part of respondent-channels has not appeared to the Government and that even no allegation was brought to the Government against the respondent TV channels for violation of the Act, 2006. From the writ petition and the supplementary affidavits thereto, we do not find that the petitioner has ever filed any petition or complaint either before the Government or before the Licensing Authority in accordance with section 18 of the Act, 2006 so as to have an inference that the Government-or the Licensing Authority are not doing their legal duties as required by law. Therefore, it cannot be said that the respondents are loath to take any action against the respondent-TV channels.

 

21.        The Act, 2006 incorporates that three authorities i.e. (1) the Government (Ministry of Information) or (2) the Licensing Authority or (3) the Magistrate, 1st class/Metropolitan Magistrate can take action under sections 15 or 18 or 29 of the said Act respectively for violation of section 19 thereof. But in all the circumstances as mentioned above, proper enquiry/adjudication as to breach of section 19 is required. Moreover, the allegations as made in this writ petition as to violation of section 19 of the Act having been denied by the respondents, have appeared to us as disputed questions of facts. So the same have to be assessed/adjudicated and it can only be done under the provisions of section 18 or before other adjudicating forums as mentioned above but certainly not under the writ petition. Having regard to the above, there being equally efficacious alternative remedy and on failure to avail of the same, the present writ petition is misconceived and the same is premature as well. Anyway, the petitioner is at liberty to bring complaints, if any, under section 18 of the Act, 2006 against telecast of programmes by any TV channel.

 

22.        However, in the present situation, particularly in the era of digitalization, it is not possible to shut our eyes to the reality and therefore, it will not be appropriate to stop telecasting of the TV channels on mere allegations of violation of section 19 of the Act, 2006 without following the procedure under the Act, 2006. By the same token, it is not desirable that the TV channels shall telecast such programmes which are not befitting to our culture and tradition and the programmes which adversely affect the values of our society.

 

23.        In this context, we like to observe that section 12 of the Act, 2006 itself provides for an Advisory Committee and that rules 10, 11 and 12 of the Rules, 2010 incorporate the following provisions regarding functions of the Advisory Committee:

 

d¡l¡ 12z       fl¡jnÑL L¢j¢Vz- (1) HC BCe h¡ ¢h¢dl ¢hd¡ehm£ h¡Ø¹h¡u­el m­rÉ fË­u¡Se­h¡­d plL¡l Ae¢dL 11 (HN¡l) pcpÉ¢h¢nø fl¡jnÑL L¢j¢V NWe L¢l­a f¡¢l­hz

 

(2) fl¡jnÑL L¢j¢Vl c¡¢uaÄ J L¡kÑ¡hm£, pi¡ J Be¤o¢‰L ¢hou¡¢c ¢h¢d à¡l¡ ¢edÑ¡¢la qC­hz

 

(3) fl¡jnÑL L¢j¢V, pju, plL¡l hl¡h­l fl¡jnÑ h¡ ®rœja, p¤f¡¢ln fËc¡e L¢l­a f¡¢l­hz

 

¢h¢d 10| civgk©K KwgwU MVb, BZ¨vw`|- aviv 12 Gi D‡Ïk¨ c~ibK‡í miKvi wbgewY©Z m`m¨ mgš^‡q GKwU civgk©K KwgwU, AZtci KwgwU ewjqv D‡j­wLZ MVb Kwi‡e, h_vt-

 

(K) Z_¨ gš¿bvj‡qi mwPe, whwb Dnvi mfvcwZI nB‡eb;

 

(L) cÖavbgš¿xi Kvh©vjq KZ©„K g‡bvbxZ Ab¨yb gnvcwiPvjK c`gh©v`vi GKRb Kg©KZ©v;

 

(M) AvBb, wePvi I msm` welqK gš¿bvjq KZ„©K g‡bvbxZ Ab¨yb hyM¥-mwPe c` gh©v`vi GKRb Kg©KZ©v;

 

(N) ¯^ivó« gš¿bvjq KZ„©K g‡bvbxZ Ab¨yb hyM¥-mwPe c` gh©v`vi GKRb Kg©KZ©v;

 

(O) WvK I †Uwj‡hvMv‡hvM gš¿bvjq KZ©„K g‡bvbxZ Ab¨yb hyM¥-mwPe c` gh©v`vi GKRb Kg©KZ©v;

 

(P) evwYR¨ gš¿Yvjq KZ„©K g‡bvbxqZ Ab¨yb hyM¥-mwPe c` gh©v`vi GKRb Kg©KZ©v;

 

(Q) ms¯‹„wZ welqK gš¿Yvjq KZ©„K g‡bvbxZ Ab¨yb hyM¥-mwPe c` gh©v`vi GKRb Kg©KZ©v;

 

(R) Z_¨ gš¿Yvj‡qi hyM¥-mwPe (m¤úÖPvi);

 

(S) evsjv‡`k †Uwjwfkb Gi gnv-cwiPvjK;

 

(T) miKvi KZ©„K g‡bvbxZ †emiKvix m¤úÖPvi gva¨‡gi GKRb cÖwZwbwa:

 

(U) Z_¨ gš¿Yvj‡qi Dc-mwPe (wUwf), whwb Dnvi m`m¨-mwPeI nB‡eb|

 

11| `vwqZ¡ I Kvh©vejx|- KwgwUi `vwqZ¡ I Kvh©vejx nB‡e wbgi“c, h_vt-

 

(K) AvBb I Dnvi Aaxb cÖYxZ wewagvjv h_vh_fv‡e cÖwZcvwjZ nB‡Z‡Q wK bv Zvnv g~j¨vqb;

 

(L) jvB‡mw›ms KZ„©c¶ KZ©„K wWwó«weDUi Ges †mevcÖ`vbKvix eive‡i h_vh_fv‡e jvB‡m›m Bm¨y Kiv nB‡Z‡Q wKbv Zvnv m‡iRwg‡b Z`viKxKiY;

 

(M) wWwó«weDUi, †mevcÖ`vbKvix, MÖvnK, wdW Acv‡iUi, †Kej Acv‡iUi, gvwëcj wm‡÷g Acv‡iUi BZ¨vw` KZ©„K AvB‡bi wewfbœ avivq D‡j­wLZ weavbvejx h_vh_fv‡e Abymib Kiv nB‡Z‡Q wKbv †m m¤ú‡K© mswk­ó KZ©„c¶ KZ©„K Z_¨ msMÖnKiY Ges D³i“c Z‡_¨i wfwˇZ miKv‡ii wbKU KiYxq welqv`x m¤ú‡K© civgk© ev mycvwik cÖ`vb;

 

(N) miKvi KZ©„K wewfbœ mg‡q Awc©Z `vwqZ¡ m¤úv`b;

 

(O) we‡`kx †c-P¨v‡bj I we‡`kx wd« Uy Gqvi P¨v‡bj evsjv‡`‡k WvDb wjs‡Ki msL¨v wbav©ibmn Aby‡gv`‡bi j‡¶¨ miKvi eive‡i mycvwik cÖ`vb;

 

(P) aviv 19 Gi Av‡jv‡K we‡`kx †c-P¨v‡bj I wd« Uy Gqvi P¨v‡bj wbe©vPb;

 

(Q) DcwiD³ `vwqZ¡ I KZ©e¨mg~n m¤úv`‡bi Rb¨ cÖ‡qvRbxq †h †Kvb e¨e¯’v MÖnY ev miKvi eive‡i mycvwikgvjv †cÖiY|

 

12| KwgwUi mfv|-(1) KwgwU Dnvi mfvi Kvh©c×wZ wba©vib Kwi‡Z cvwi‡e|

 

(2)    KwgwUi mfv Dnvi †Pqvig¨vb KZ©©©„K wbavwiZ ¯’vb I mg‡q AbywôZ nB‡et

 

      Z‡e kZ© _v‡K †h, cÖwZ Qq gv‡m KwgwUi Kgc‡¶ GKwU mfv AbywôZ nB‡et

 

Av‡iv kZ© _v‡K †h, KwgwU cÖ‡qvR‡b, †h †Kvb mgq, ¯^í mg‡q †bvwUk Rvix Kwiqv Ri“ix mfv Avnevb Kwi‡Z cvwi‡e|

 

(3)   mfvcwZ KwgwUi mKj mfvq mfvcwZZ¡ Kwi‡eb Ges Zvnvi Abycw¯’wZ‡Z ZrKZ©„K wb‡`©wkZ †Kvb m`m¨ ev GBi“c †Kvb wb‡`©k bv _vwK‡j mfvq Dcw¯’Z m`m¨M‡Yi Øviv wbe©vwPZ Ab¨ †Kvb m`m¨ mfvq mfvcwZZ¡ Kwi‡eb|

 

(4)    KwgwUi mfvi †Kviv‡gi Rb¨ Dnvi †gvU m`m¨ msL¨vi Ab¨yb GK-wØZxqvsk m`‡m¨i Dcw¯’wZi cÖ‡qvRb nB‡e, Z‡e gyjZex mfvi †¶‡Î †Kvb †Kviv‡gi cÖ‡qvRb nB‡e bv|

 

(5)   KwgwUi cÖ‡Z¨K m`‡m¨i GKwU Kwiqv †fvU _vwK‡e Ges †fv‡Ui mgZvi †¶‡Î mfvq mfvcwZZ¡Kvix m`‡m¨i wØZxq ev wbY©vqK †fvU cÖ`v‡bi ¶gZv _vwK‡e|

 

(6)    ïaygvÎ †Kvb m`m¨ c‡` k~b¨Zv ev KwgwU MV‡b ΓwU _vwKevi Kvi‡Y KwgwUi †Kvb Kvh© ev Kvh©aviv A‰ea nB‡e bv Ges Zrm¤ú‡K© †Kvb cÖkœI DÌvcb Kiv hvB‡e bv|ÕÕ

 

24.        On a plain reading of the aforesaid provisions, it appears that the Advisory Committee is authorized to monitor the programmes of every TV channel and therefore this committee shall keep vigilance on their own, irrespective of any complaint in this regard and further the Licensing Authority must make enquiry into any complaint, if filed, in accordance with section 18 of the Act, 2006.

 

25.        Now, to appreciate the submission of Mr. Matin Khasru as to competence of the fresh writ petition on the self-same cause, after rejection of the earlier writ petition as not being pressed, we have examined the relevant sub- rule (7) (b)(c) of rule 3 of Chapter IVA of the High Court Division Rules which run as follows:

 

“(7) No take back etc: Where any motion application/petition is-

 

(a)    . . . . . . . . . . . . .  .

 

(b)   summarily rejected on merit or is rejected for its being not pressed or for any other reason, a fresh application/petition on the same  ground/ cause shall not be made:

 

(c)    rejected as mentioned in clause (b) above and a fresh application is made on a new/ different ground, it must contain a specific reference to the previous Motion application(s) / petition(s) and the rejection order(s).”

 

26.        On a plain reading of sub-rule (7) (b), it appears that after rejection of a Motion application (writ petition) as not being pressed, a fresh writ petition on the same ground/ cause cannot be filed. However, sub-rule (7) (c) has relaxed the said embargo providing a special privilege incorporating provisions that a fresh writ petition (Motion) can be filed subsequently subject to having any new/different ground and it must contain specific reference to the previous motion/application/petition and the rejection order.

 

27.        Therefore, we are led to hold that with a view to putting an end to the litigation/dispute the writ jurisdiction follows the principle of res judicata debarring filing of any fresh writ petition on the self-same adjudicated cause and even after rejection of the writ petition (motion) as not being pressed. Yet the High Court Division Rules provide a very narrow space incorporating sub rule (7)(c) of rule 3 of the Chapter IVA in filing fresh writ petition (Motion) on special circumstances and that to maintain strict limitation  thereof the  Rules require two conditions, firstly, new/different ground and secondly, the writ petition shall contain specific reference to the previous petition/motion/application and the rejection order. Therefore, the requirement of rules must be followed in entertaining any fresh writ petition on the self same cause.

 

28.        Thus, to have an effective compliance of the first requirement of the rules, there shall be a specific statement in the later writ petition quoting the new/different ground and that to appreciate the said new/different ground of the writ petition, it is proper if the Bench which heard the previous motion (writ petition), subject to availability, hears the said fresh writ petition. Moreover, this special privilege should not be allowed to enjoy for an indefinite period causing prejudice to the other part of the litigation and also in contradiction to the principle, delay defeats equity. Therefore, the subsequent fresh writ petition (Motion) has to be filed within a reasonable time preferably within 30 days from the date of earlier rejection as not being pressed following the provision of validity period of affidavit of a new writ petition (Motion) as provided in rule-4 of chapter IVA of  the High Court Division Rules.

 

29.        Here admittedly, on the same cause the petitioner earlier moved writ petition No. 7353 of 2014 which was rejected as being not pressed. Paragraph 17 of the present writ petition shows that the petitioner just mentioned the number of the previous writ petition and stated “after hearing the Hon’ble Court was pleased to reject as being not pressed”. Except for this sentence, we do not find any other averments or statements or new ground within the four corners of the present writ petition as well as the supplementary affidavit thereof in accordance with the requirement of the High Court Division Rules. Therefore, this Rule Nisi on this score also fails. 

 

30.        In view of the above discussions, we do not find any merit in this Rule.

 

         In the result, the Rule is discharged without any order as to costs.

 

         Communicate the judgment and order to the respondents at once. 

 

Ed.