The petitioner challenges through this petition the order dated 7th of February, 1981 passed by the District Magistrate, Gujranwala, suspending his licence for exhibition of films in Khan Mahal Cinema, Gujranwala, for a period of two months.
2. The facts of the case as stated by the District Magistrate in his report are that, on receipt of a number of complaints that the management of the cinema was exhibiting blue films, he deputed City Magistrate, to conduct a raid. On doing, so, the City Magistrate while accompanied by other official found that obscene scenes were being exhibited. With objectional songs. The.City Magistrate also came to know that the Proprietor had sublet the cinema without the prior permission of the District Magistrate.
3., Consequently, a show-cause notice was issued to which the petitioner submitted 'his reply. The District Magistrate examined Muhammad Aslam Khan, City Magistrate, and allowed full opportunity to' the petitioner to produce his defence and argue the case. He, thereafter, found that the cinema had earned notoriety in exhibiting blue films and had not desisted from it, though it had been allowed several opportunities to conduct its affairs according to law and the rules. He, therefore, finding that the petitioner did not deserve any leniency passed the impugned order. Reliance was placed on rule II1(1) of the Punjab Cinematograph Rules, 1976. The rules 81 and 87 of the same Rules were also referred, to say that the District Magistrate could authorise any officer to inspect the cinema house, or a film which is proposed to be exhibited therein.
4. It was contended by the learned counsel for the petitioner that the power conferred on the District Magistrate to suspend the exhibition of a film for one month, provided there is an apprehension of breach of peace, is conferred under section 8(2) of the Motion Pictures Ordinance.
He also referred to section 8(5) to say that only an Inspector of Police is authorised to enter upon a cinema to see if there is taking place exhibition of an uncertified film. In this view of the law, it was pleaded that the impugned order is bad in law. Section 8, however, concerns exhibition of films and not the licensed places or their licensing, the point with which we are concerned in this petition.
5. As regards rule 111 of 1976 Rules referred to above, it was submitted on behalf of the petitioner that the same is inconsistent with the provisions of Motion Pictures Ordinance and, therefore, is not saved under section 21 thereof. Reference was also made to section 24 of the General Clauses Act to say that only the consistent rules were to be saved. The learned Assistant Advocate-General relied on the same provisions of law as are cited in the report of the District Magistrate.
6. Motion Pictures Ordinance, 1979, according to its preamble, is meant, to provide for censorship and exhibition of films by means of Cinematograph and for matters connected therewith or 'incidental thereto. A Board is constituted under section 3 in order to examine and certify films for exhibition. Section 4(1) prohibits exhibition of uncertified films while section 4(2) lays down manner for seeking a certificate. Section 6 gives principles of guidance in certifying film. As said above, section 8 provides for a power to suspend exhibition of a film in certain cases and enumerates the authority or officer empowered to do so. It also lays down a remedy before the Federal Government. These powers can be delegated by the Federal Government to any authority or person under section 15 of the Ordinance. No such power vests in .The Licensing Authority under section 8. None of them, however, concern the issue in hand.
7. The place where a film is to be exhibited is required to be licensed as provided in section 13.
According to it, the Provincial Government is the Licensing Authority though it can specify any other agency, by notification in the official Gazette, for the whole or any part of the Province.- Section.
13(3) lays_down guidelines to the effect that no licence in respect of any place shall be granted unless the rules, made under that Chapter, have been complied with and adequate :precautions for safety and health of persons attending exhibition had been taken.
8. In view of the above, any film sought to be exhibited must be certified by the .Board while the place where it is to be shown must be licensed by the Provincial Government or its delegate in accordance with the rules, made under Chapter III of the Motion Prictures Ordinance. Section 18 provides for penalties and the procedure for violations of provisions concerning exhibition of films and use of places for it. The power to punish is conferred on Courts.
9. This trichotomy of power is to be governed by separate rules. New rules about certification of films concerning Chapter II of the Ordinance. Have been made, but the Chapter III with which we are concerned has not been similarly attended to, with the result that no rules have so far been made under this Chapter.
10. Section 18(1) provides for procedure and, general penalties in the form of imprisonment up to 3 years or with fine up. To one lac rupees, or with both with a further fine of Rs. 10,000 for each day during which the offence continues. It is about exhibition of uncertified films and matters incidental thereto. Section 18(2) deals with penalties for user of the places and cinematographs in contravention of provisions of the Ordinance and the rules. Such violations are punishable for a term which may extend to one year or with fine up to Rs. 10,000 or with both and in case of a continuing offence with a further fine which may extend to,Rs. 2,000 for each day during which the offence continues. Section 18(4) also authorises the Licensing Authority to revoke a licence when the person convicted is holder of a licence under section 13.
11. The Government of the Punjab as Licensing Authority delegated, vide Notification No. PS/Secretary (ICCT)-4686/80 dated 31st July,, 1980, its powers to all the District Magistrates under ,section 13, ;only to grant temporary licences to touring cinemas, to renew the licences and grant of permission to hold special shows. The power under section 18(4) to revoke a licence, after an owner or person incharge of a cinematograph has been convicted, has also been delegated.
12. As no rules have been framed under Chapter III, we are left to fall back on section 24 of the General Clauses Act which, even otherwise, is mentioned in section 21 of the Motion Pictures Ordinance. In pursuance to it, the rules made under the repealed law i. e. Cinematograph Act, 1918, shall operate to the extent of their consistency with the provisions of the Motion Pictures Ordinance, 1979. These rules known as the Punjab Cinematograph Rules, 1976, framed under section 8, of the Cinematograph Act, 1918, were meant for the places where a film had to be exhibited.
13. Rule 87 of the abovesaid rules obliges the licensees of premises to make arrangements for inspection. It empowers the District Magistrate to, any time, inspect or authorise any other officer to do so, any -film, which is proposed to be exhibited, in the licensed premises. This rule is, therefore, not attracted to the situation in hand. .
14. Rule 81 empowers the Licensing Authority or any other officer authorised by him, in this,behalf, to enter any place, at any time, which, he has reasons to believe, is being used or is intended to be used, for the purpose of Cinematograph exhibition, in order to satisfy himself that provisions of section 3 of the Act, the rules framed thereunder and the conditions of licence, are being complied with. This' rule is consistent with the provisions of section 18(5). Section 18(5) stipulates that no Court shall take cognizance of an offence punishable under that section except upon a complaint in writing, made by the Board or the Licensing Authority or - persons authorised by any of them. - - . '
15. Rule 111 (1) of the above Rules is also relevant and may be reproduced with advantage :- "Suspension or cancellation of licence.--.The District Magistrate may at any time,'for reasons to be recorded in writing, revoke or suspend a licence granted by a Licensing Authority for any breach of these rules or the conditions of the licence : Provided that the licensee may within thirty days of the communication of such decision to him, appeal against it to the Commissioner of the Division, whose decision shall be final."
A reference back to sections 13 and 18 of the Motion Pictures Ordinan would show that whereas the power of revocation of licence is given to a District Magistrate under section 18(4) as a delegate of the Licensing Authority the action can be taken only after conviction is recorded by a competent Court.
16. It is thus evident from the above, that while the District Magistrate, 'may inspect or cause a cinema to be inspected, yet he being not the Licensing Authority or its delegate, cannot exercise authority conferred on him under rule 111 (1). Para. 11 above shows that no power to grant a licence has been delegated to him by the Provincial Government, under section 13 of the Motion Prictures Ordinance, 1979. Therefore, though he has the power to authorise any officer to inspect any cinema in his district, under rule 81, yet he cannot himself revoke or suspend a licence under rule 111(1), for breach of any rule or condition of the licence. This is further supported from the power of revocation delegated to him under section 18(4).
17. This scheme of the Ordinance, with regard to offences under section 13, provides heavy penalties but only by, a Court of law. The revocation of licence is by the Licensing Authority only after conviction. It leaves no manner of doubt that the law wanted to give due protection to innocent persons, against arbitrary and vindictive approaches, if any, of the Local executive authority but on the other hand desired giving crushing blow to the real culprits, only after due opportunity of defence, in a Court of law. In this view of the matter, the rule 111 (1) which provides an additional penalty cannot be said to be consistent with the Ordinance, without a support ing provision in it
18. It may be appreciated that the cinemas are serving three purposes. They provided entertainment to the cinema-goers and tax to the exchequer, in addition to the income to the licensees. The power in rule 111 (1), if used without due adjudication, would have amounted to punishing the cinemagoers and the exchequer as well. May be, it is for this reason that the Legislature intended to save the other two innocent parties in ordinary circumstances. It will certainly be more deterrent if the licensee, whose purpose is to make money, has to pay not only more than what he earns but may lose his face and liberty in addition, if he takes it upon himself to violate the Ordinance or the rules.