The judgment emphasizes the need to avoid unnecessary arrest and the requirement for police to issue a notice before arrest, as established in the case of Arnesh Kumar v. State of Bihar.

JUDGMENT

1. Heard learned Senior Counsel appearing for Petitioners in both petitions, learned Counsel for Respondent No. 2 and the learned APP for Respondent No.1-State.

2. These are two petitions at the instance of Director and Producer of the movie title as "Nay Varan Bhaat Loncha Kon Nay Konacha". Respondent No. 2 had approached the learned Special Court by submitting an application bearing Misc. Application No. 99 of 2022 raising the grievance in respect of trailer of the said movie displayed on the social media platform and particularly on "YouTube".

3. The submission of Respondent No. 2 before the learned Special Court was that the trailer contains sexually explicit contents involving minors. It also displayed use of obscene abuses, violence, indecent acts by minors and indecent representation of women. Now in the very application Respondent No. 2 herself submits that the said trailer is removed from YouTube, but is still available on the other online platforms and is being circulated. The trailer is downloaded and a CD containing the same, is fled along with complaint.

4. The learned Special Court by referring to the statement made in the application allowed the application and directed Senior Police Inspector of Mahim Police Station to investigate the case as per Sec. 156(3) of the Code of Criminal Procedure and to take appropriate action as per law.

5. Mr. Shirish Gupte, learned Senior Counsel for the Petitioner (Writ Petition No. 596 of 2022) vehemently submitted that the order passed by the Special Court is nothing but the result of non- application of the mind. Learned Counsel then invited our attention to the statements made in the petition. It is stated in the grounds that the trailer based on which the complaint is lodged is already withdrawn and further the movie is already released. Petitioner further states in the grounds that with an intention to show respect to the views expressed by complainant's association, the Petitioner herein immediately withdrew the said trailer though at the cost of repetition the Petitioner wishes to place it on record that the contents of the same were from the movie duly censored by the Censor Board. There is another specifc statement made in the grounds and clause 'G' which reads as " The Petitioner state that the movie does not contain any porn or involves or depicts a child having any act which will fall within the purview of POCSO Act."

6. The learned Counsel then submitted that apart from all the acts, which have been undertaken by the Petitioner bonafdely, namely removing of the trailer from the social media platform, categorical statement before this Court is that the movie does not contain any porn or involves or depicts a child having any act, which will fall within the purview of POCSO Act. The ofence alleged against the Petitioner provides the maximum punishment of seven years considering the instances where the police authorities in an undue haste were taking resort to an extreme action of efecting arrest. The Apex Court in the judgment of Arnesh Kumar V/s. State of Bihar and Another {(2014) 8 SCC 273 } recorded important observations, our attention is invited to Paragraph Nos. 9 and 10 of the said judgment, read as under:

"9. Another provision i.e. Sec. 41-A Cr.P.C. aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalised. Sec. 41-A as inserted by Sec. 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), which is relevant in the context reads as follows:

"41-A. Notice of appearance before police officer.- (1) The police ofcer shall, in all cases where the arrest of a person is not required under the provisions of sub-sec. (1) of Sec. 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable ofence, to appear before him or at such other place as may be specife