N.L. Tiberwal, J.
1. In main relief claimed by the petitioner in this writ petition under Article 226 of the Constitution, is to retain the respondens or their functionaries/subordinates from interfering in exhibiting/operating the films through VCRs and VCPs by him at his video parlour, namely, 'Minakshi Video'.
2. The petitioner is running a video parlour in village Mandrela, in the district Jhunjhunu and exhibits films on television by video. It is not in dispute that the petitioner charges money from the persons who are allowed to see the films, exhibited by the petitioner. According to the petitioner, he cannot be compelled to obtain a licence under the Rajasthan Cinemas (Regulation) Act, 1952 (hereinafter, to be referred to 'as the Act') and there is no provision giving any control to the functionaries of the State Government if films are shown on television by video, and that the petitioner is being harassed unnecessarily by the functionaries of the State Government. The learned Counsel had also drawn my attention towards a letter dated Feb. 10' 86 (Ann.1), issued by the Deputy Secretary to the Government of Rajasthan to the District Magistrate, Dholpur, in which it has been stated that no licence is required for exhibition of films through VCRs/VCPs.
3. Rajasthan Cinemas (Regulation) Act, 1952 was enacted to make provisions for regulating the exhibition of films by means of cinematograph. The word 'Cinematograph' has been defined in Section 2 of the Act, and it includes any apparatus for the representation of moving pictures or series of pictures. Section 3 of the Act provides that, no person shall give an exhibition by means of cinematograph elsewhere than in a place licensed under the Act or otherwise than in compliance with the conditions and restrictions imposed by such licence. As per Section 4, the District Magistrate is a licensing authority. It further provides that the State Government may, by notification in the Official Gazette, constitute for the whole or any part of the State of Rajasthan such other authority, as it may specify in the notification to be the licensing authority for the purpose of this Act. Under Section 7, the State Government and the District Magistrate have been given powers to suspendexhibition of films in certain cases, and during the period of suspension, the said film is deemed to be an uncertified film in the whole or part of the district or the State of Rajasthan as the cdase may be. Section 8 provides penalties for contravention of Act and the Rules thereunder. Section 9 deals with the provisions to revoke licence. According to this section, where the holder of a licence is convicted of an offence Under Section 7 or 8 of the Act or for the commission of any offence under the Rajasthan Entertainments and Advertisements Tax Act, 1957, the licence may be revoked by the licensing authority.
4. The Parliament has also enacted 'Cinematograph Act, 1952' to make provision for the certification of the films for exhibition and for regulating exhibitions by means of cinematograph. In this Act also, the word 'cinematograph' has been defined to include any appartus for the representation of moving pictures or series of pictures. Section 3 of the Act provides constitution of a Board to be called 'the Board of Film Certification' and under Section 5-A, the certification of the films is made by theBoard. Section 7 provides punishment for the various acts enumerated in the provision and Section 7-A provides the powers of search or seizure. Part III of the Act deals with the provisions to exhibition of films by means of cinematograph. Licence is granted Under Section 11 while Section 12 provdes the restrictions on the Licensing Authority for granting a licence. Then, Section 15 provides the power of the licensing authority to revoke the licence if a person is convicted of an offence Under Section 7 or 14 of the Act.
5. This Act was amended in the year 1984 by Cinematograph (Amendment) Act, 1984. By this Act, Section 7(1)(a) was substituted to provide more stringent punishment as under:
he shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to one lakh rupees, or with both, and in the case of a continuing offence with a further fine which may extend to twenty thousand rupees for each day during which the offence continues:
Provided that a person who exhibits or permits to be exhibited in any place a video film in contravention of the provisions of Sub-clause (i) of Clause (a) shall be punishable with imprisonment for a term which shall not be less than three months, but which may extend to three years and with fine which shall not be less than twenty thousand rupees, but which may extend to one lakh rupees, and in the case of a continuing offence with a further fine whichmay extend to twenty thousand rupees for each day during which the offence continues:
Provided further that a court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months, or a fine of less than twenty thousand rupees.
6. Some minor amendments were also made in Clauses (b) and (c). One of the objects of the amendment was that because of the video boom in the country, there were reports that uncertified video film were being exhibited on a large scale and a large number on video tapes by charging admission fee from the clients. Among other things, this has also hit the Indian film industry very adversely, and it was felt that there should be more stringent punishment provided in the Cinematograph Act, 1952 to curb this practice of exhibiting uncertified Indian/foreign films by video parlours, etc.
7. In the Copyright Act, 1957, the following Explanation has been inserted in Clause (7) of Section 2(a) by the Copyright (Amendment) Act of 1984, which came in force on 8th Oct., 1984:
Explanation: For the purposes of this clause, 'video films' shall be deemdd to be work produced by a process analogous to cinematography.
Section 52-A was also inserted in the plncipal Act. Sub-section (2) of this new section reads as under:
(2) No person shall publish a video films in respect of any work unless the following particulars are displayed In the video film, when exhibited, and on the video cassette or other container thereof namely:
(a) if such work is a cinematograph film required to be certified for exhibition under the provisions of the Cinematograph Act, 1952, a copy of the certificate granted by theBoard of Film Certification under Section 5A of that Act in respect of such work;
(b) the name and address of the person who has made the video film and a declaration by him that he has obtained the necessary licence or consent from the owner of the copyright in such work for making such video film; and
(c) the name and address of the owner of the copyright in such work.
Then, after Section 68A was inserted, which reads as under:
68A-Any person who publishes a record or a video film in contravention of the provisions of Section 52A shall be punishable with imprisonment which may extend to three years and shall also be liable to fine.
8. Similarly, the Rajasthan Entertainments & Advertisement Tax Act, 1957 has been enacted to provide for the levy, by the State Government, of a tax in respect of admission to theatres, cinemas and other places of public entertainments and also a tax in respect of certain form of advertisements in such places in the State of Rajasthan and for the payment of compensation to the local authorities now levying such a tax. Section 4 of the Act provides levy of tax on the payment made for the admission at such places of entertainments. Section 6 of the Act provides that no person, other than a person who has to perform some duty in connection with an entertainment imposed upon him by any law or otherwise, shall be admitted for payment to an entertainment where the payment is subject to the entertainments tax, except with a ticket stamped with an impressed, embossed, engraved or adhesive stamp (non before used) issued by the StateGovernment for the purpose of revenue and denoting that the proper entertainment tax has been paid. In other words, at a place of entertainment if a person is charged, entertainment tax additional tax for entertainments have to be charged as provided in the Act. Then, Section 10 of the Act provides offence and penalties for the various acts including fortheAct of admitting any person to any place of entertainment in contravention of the provisions of Sub-section (1) or Sub-section (2) of Section 6. Section 3(5) of the Act defines 'Entertainment', which includes any exhibition (show), performance, amusement, game or short to which persons are admitted for payment.
9. In M/S Geeta Enterprises and Ors. v. State of U.P. and Ors. : [1983]3SCR812 , it was held that the word 'entertainment' has been defined in U.P. Entertainment and Betting Tax Act, (which is pari-materia to the definition of entertainment in Rajasthan Act) in a very vide sense so as to include within its ambit, entertainment of any kind including one which may be purely educative. A video show was held to be within its purview and payment charges by the exhibitor was held to be a payment connected with entertainment which Ls a person is required to make as a condition of attending it. The Supreme Court, therefore, held that a video show is exigible to tax under the U.P. Act.
10. In Restaurant Lee and Ors. v. State of Madhay Prades and Ors. AIR 1983 MP. 146, a Bench of M.P. High Court held that when a VCR is used for playing prerecorded cassettes of movies on the TV screen, it is certainly used as an apparantus for the representation of moving pictures or series of pictures and comes within the definition of 'Cinematograph'. It was also held that the activityof the petitioners of exhbiting movies by playing prerecorded cassettes in VCRs in their restaurants comes within ban contained in Section 3 of M.1P. Cinema (Regulation) Act, and the restaurants of the petitioners fell within the definition of 'place' Under Section 2(b) of the Act. Consequently, it was held that the petitioners cannot indulge into such activity unless they obtain a licence for their restaurants under the Act.
11. A similar view has been taken by a Division Bench of Delhi High Court in Balwinder Singh v. Delhi Administration and Ors. : AIR1984Delhi379 .
12. In Dineshkumar Hanumanprasad Tiwari v. State of Maharashtra : AIR1984Bom34 , the Bombay High Court also held that if a VCR is used for plying pre-recorded cassettes of movies on the TV screen, it is certainly used as an apparatus for the representation of moving pictures or series of pictures and comes within the definition of 'cinematograph' as defined under the Cinematograph Act of 1952, hence, exhibition of movies by playing prerecorded cassettes in VCR in a cafe or restaurant fell within the ban contained in Section 3 of the Act.
13. I have referred relevant provisions of the various acts which are connected with each other. I have also referred certain judicial decision to show the views of various courts. The question requires for consideration is whether playing pre- recorded cassettes of movies on TV with VCR/VCP falls within the ambit of the Rajasthan Cinemas (Regulation) Act, 1952?
14. A VCR is designed to record sound and pictures both in black and white and colour on a magnetic tape to reply when required. VCRs contain a tuner to enable the machine to record signal received from the antenna. The material so recorded can be played back on a ordinary domestic TV set. VCRs also play back tapes recorded on other machines and recorded cassettes of movies. Presently, I am only concered with the use of VCR and TV sets for playing back recorded casettes of movies. The definition of Cinematograph is wide in terms. It is not restrictedto projectors ordinarily used in cinemas for showing photographic films. The inclusive definition is quite general and wide to include any apparatus for the representation of moving pictures or series of pictures. Therefore, when a VCR is used for playing pre-recorded cassettes of movies on the TV screen, it is certainly used as an aparatus for the representation of moving pictures or series of picutures and comes within the definition of 'Cinematograph'. Section 3 of the Act prohibits the exhibition by means of cinematograph elsewhere than in a place licensed under the act or otherwise than in compliance with any condition and restriction imposed by such a licence. A place has been defined Under Section 2(1)(b) of the Act to incloude a house, building, tent and any description of transport, whether by land, water or air. One of the meanings of 'exhibit' is 'to show publicly for the purpose of amusement or instruction'. 'Exhibition' means a public display, i.e. a display to which public is admitted (See Oxford English Dictionary Vol. III, and the Random House Dictionary). In other words, if a VCR is used for playing a pre-recorded cassettes of a movie in one's own house and the show is restricted to the family members or friends and the public is not admitted, such show will not be an exhibition coming within the prohibition of Section 3 it is not disputed in the instant case, that the petitioner is running a video parlour where the films are exhibited to the public on payment. This clearly amounts to exhibition by means of a cinematograph bringing the activity within the ban of Section 33 of the Act. Hence, the petitioner cannot indulge into this activity unless he obtains a licence under the Act.
15. Then, Section 5 of the Act provides restriction on powers of licensing authorities. It provides that the licensing authority shall not grant a license under the Act, unless it is satisfied, besides others, that adequate precautions have been taken in the place, in respect of which license is given, to provide for the safety of persons attending exhibition therein.
16. A discussion of the relevant provisions of the Act leave no doubt that they cover video parlour where films are exhibited with the use of VCR and TV by playing prerecorded cassettes of movies. The matter may be considered from a different angle also. If the petitioner is allowed to run video parlour, as mini cinema, without application of the restrictions and regulations of the Act. The dangers are obvious in such a case. In such a situation, there might be risk to the safety and health of the persons visiting the video parlour over-crowing outside and inside the video parlour may also create problems of public order. Man y of the owners of such video parlour may also indulge in nafarious activity of exhibiting pirated and blue films.
17. If the persons are admitted to the exhibition of films on making payment, then the provisions of Rajasthan Entertainments and Advertisements Tax Act, 1957, are also attracted, about which a discussion has been made earlier. The video parlour comes within the definition of a place of entertainment and entertainment tax/additional tax for the entertainments are to be charged on payments made by the visitors.
18. The provisions of Copyright Act, 1957, as amended by the Amending Act of 1984, are also applicable to video films.
19. The net result of the above discussion is that if the petitioner runs a video parlour to exhibit films/movies with TV and VCR on payment by the public, the provisions of Rajasthan Cinemas (Regulation) Act, 1952; the Rajasthan Entertainments and Advertisements Tax Act, 1957; and the Copyright Act, shall be applicable. Consequently, this writ petition fails, and it is hereby dismissed.