AVEEK SARKAR AND ANOTHER Vs. STATE OF WEST BENGAL AND OTHERS
SUPREME COURTSupreme Court The Court of last resort. Supreme Court of India (26/01/1950), Supreme Court of USA (1798), Supreme Court of UK (1/10/2009), Supreme Court of Canada (1949), International Court of Justice (22/05/1947), > Supreme Court Network OF INDIAIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more
DIVISION BENCH
( Before : K.S. Panicker Radhakrishnan, J; A.K. Sikri, J )
AVEEK SARKAR AND ANOTHER — Appellant
Vs.
STATE OF WEST BENGALWest Bengal Bengal derived its name from Vedik king Vanga (Son of Vali). Banga was part of the Magadha Kingdom of Jarasandha and later Nanda dynasty. After the Garuda Dynasty ( history lost) the region was named Gouda Bhumi. AND OTHERS — Respondent
Criminal Appeal No. 902 of 2004
Decided on : 03-02-2014
Criminal Procedure Code, 1973 (CrPC) – Section 251, Section 482, Section 483
Indecent Representation of Women (Prohibition) Act, 1986 – Section 3, Section 4, Section 6
Penal Code, 1860 (IPC) – Section 291(1), Section 292, Section 292(1), Section 79
Criminal Procedure Code, 1973 (CrPC) — Section 251, 482, 483 — Indecent Representation of Women (Prohibition) Act, 1986
Cases Referred
Ajay Goswami Vs. Union of India (UOI) and Others, AIR 2007 SC 493 : (2006) 14 SCALE 317 : (2007) 1 SCC 143 : (2006) 10 SCR 770 Supp : (2007) AIRSCW 15
Bobby Art International, etc. Vs. OmOm सोऽयमात्माध्यक्षरमोङ्कारोऽधिमात्रं पादा मात्रा मात्राश्च पादा अकार उकारो मकार इति ॥ ८ ॥ (Mandukya) Pal Singh Hoon and others, (1996) 4 AD 281 : AIR 1996 SC 1846 : AIR 1996 SC 1346 : (1996) 4 JT 533 : (1996) 4 SCALE 75 : (1996) 4 SCC 1 : (1996) 2 SCR 136 Supp
S. Khushboo Vs. Kanniammal and Another, AIR 2010 SC 3196 : (2010) CriLJ 2828 : (2010) 2 Crimes 414 : (2010) 5 JT 478 : (2010) 4 SCALE 462 : (2010) 5 SCC 600
Ranjit D. Udeshi Vs. State of Maharashtra, AIR 1965 SC 881 : (1965) CriLJ 8 : (1965) 1 SCR 65
Samaresh Bose and Another Vs. Amal Mitra and Another, AIR 1986 SC 967 : (1986) CriLJ 24 : (1985) 2 Crimes 782 : (1985) 2 SCALE 1225 : (1985) 4 SCC 289 : (1985) 3 SCR 17 Supp
Shri Chandrakant Kalyandas Kakodkar Vs. The State of Maharashtra and Others, AIR 1970 SC 1390 : (1970) CriLJ 1273 : (1969) 2 SCC 687 : (1970) 2 SCR 80
JUDGMENTJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022)
K.S. Panicker Radhakrishnan, J.—A German magazine by name “STERN” having worldwide circulation published an article with a picture of Boris Becker, a world renowned Tennis player, posing nude with his dark-skinned fiance by name Barbara Feltus, a film actress, which was photographed by none other than her father. The article states that, in an interview, both Boris Becker and Barbara Feltus spoke freely about their engagement, their lives and future plans and the message they wanted to convey to the people at large, for posing to such a photograph. Article picturises Boris Becker as a strident protester of the pernicious practice of “Apartheid”. Further, it was stated that the purpose of the photograph was also to signify that love champions over hatred.
2. “Sports World”, a widely circulated magazine published in India reproduced the article and the photograph as cover story in its Issue 15 dated 05.05.1993 with the caption
“Posing nude dropping out of tournaments, battling Racism in Germany. Boris Becker explains his recent approach to life”-Boris Becker
Unmasked.
3. Anandabazar Patrika, a newspaper having wide circulation in Kolkata, also published in the second page of the newspaper the above-mentioned photograph as well as the article on 06.05.1993, as appeared in the Sports World.
4. A lawyer practicing at Alipore Judge’s Court, Kolkata, claimed to be a regular reader of Sports World as well as Anandabazar Patrika filed a complaint u/s 292 of the Indian Penal Code against the Appellants herein, the Editor and the Publisher and Printer of the newspaper as well as against the Editor of the Sports World, former Captain of Indian Cricket Team, late Mansoor Ali Khan of Pataudi, before the Sub-Divisional Magistrate at Alipore. Complaint stated that as an experienced Advocate and an elderly person, he could vouchsafe that the nude photograph appeared in the Anandabazar Patrika, as well as in the Sports World, would corrupt young minds, both children and youth of this country, and is against the cultural and moralMorality Mental frame. It can be high morality or low morality, savage morality or civilised morality or Christian morality, or Nazi morality. Decent Behaviour is acceptable norms of the nations. Christian morality starts with the belief that all men are sinners and that repentance is the cause of divine mercy. Putting Crucified Christ in between is the destruction of Christian morality and logic. Now morality shifted to the personal choice of Jesus. What Jesus did is 'good'. The same would be the case of Ram, Krishna, Muhammad, Buddha, Lenin, etc. Pure Human Consciousness degraded to pure followership. There exists no proof the animals are devoid of morality. values of our society. The complainant stated that unless such types of obscene photographs are censured and banned and accused persons are punished, the dignity and honour of our womanhood would be in jeopardy. The complainant also deposed before the Court on 10.5.1993, inter alia, as follows:
…That the Accused No. 1 and the Accused No. 2 both the editors of Ananda Bazar Patrika and Sports World respectively intentionally and deliberately with the help of the Accused No. 3 for the purpose of their business, particularly for sale of their papers and magazines published, printed and publicly exhibited and circulated and also sold their papers and magazines namely, Anand Bazar Patrika and Sports World dated 6.5.1993 wherein the photograph of world class Lawn Tennis player namely, Boris Becker and his girl friend German Film Actress Miss Barbara have been published in a manner in an inter-twined manner wherein Boris Becker placed the hand upon the breast of Miss Barbara which have annexed in my petition with a caption ‘Boris Backer Un-masked’ which is absolutely obscene and lascivious in nature and which is a criminal offence. The obscene and about nude photographs show published by the accused persons in the mindConciousness Through it, a living being exists. It exists even at the molecular level. Mind is not able to control it. The mind is an internal organ that exists separate from consciousness. The mind (depending on bio-electricity) can not work without memory and information, but consciousness can. Dreams come from consciousness. Read: Mind is man. of myself as well as society of different age group have a very bad impact….
5. The learned Magistrate on 10.5.1993 passed the following order in Criminal Case Ref. Case No. C.796 of 1993:
Complainant is present. He is examined and discharged. No other PWs are present. It appears that a prima facie case is made out against the accused persons u/s 292 Indian Penal Code. Issue summonsSummons It means an application to the Court in relation to an action or appeal which has to be served on other parties or non‑parties. against all the accused persons fixing 17.6.1993 for S.P. and appearance. Requisite at one.
6. Complainant also urged that the accused persons should not only be prosecuted u/s 292 Indian Penal Code, but also be prosecuted u/s 4 of the Indecent Representation of Women (Prohibition) Act, 1986, since the photograph prima facie gives a sexual titillation and its impact is moral degradation and would also encourage the people to commit sexual offences. The accused persons on 5.3.1993 filed an application before the Court for dropping the proceedings stating that there was no illegality in reproducing in the Sports World as well as in the Anandabazar Patrika of the news item and photograph appeared in a magazine ‘STERN” published in Germany. Further, it was pointed out that the said magazine was never banned entry into India and was never considered as ‘obscene’, especially when Section 79 of Indian Penal Code states that nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not reason of a mistake of law in good faithFaith πίστει., believes himself to be justified by law, in doing it.
7. The Court after seeing the photographs and hearing the arguments on either side, held as follows:
Moreover, until evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 comes in it will not be proper to give any opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. as to the responsibility of the accused persons. But I feel it pertinent to mention that though the Section 292 does not define word ‘obscene’, but my rids of precedents have clustered round on this point and being satisfied with the materials on record, pernicious effect of picture in depraving and debauching the mind of the persons into whose hands it may come and also for other sufficient reasons to proceed further this Court was pleased to issue process against the accused persons u/s 292 Indian Penal Code At present having regard to the facts of the case, I find the matter meritsMerits Strict legal rights of the parties; a decision “on the merits” is one that reaches the right(s) of a party as distinguished from a disposition of the case on a ground not reaching the rights raised in the action; for example, in a criminal case double jeopardy does not apply if charges are nolle prossed before trial commences, and in a civil action res judicata does not apply if a previous action was dismissed on a preliminary motion raising a technicality such as improper service of process. interference by not dropping the proceedings as prayed for. It is too early to say that the accused persons are entitled to get benefit of Section 79 Indian Penal Code.
8. The Magistrate after holding so, held the accused persons to be examined u/s 251 Code of Criminal Procedure and ordered that they would be put to face the trial for the offence punishable u/s 292 Indian Penal Code alternatively u/s 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
9. The Appellants herein preferred Criminal Revision No. 1591 of 1994 before the High Court of CalcuttaHigh Court at Calcutta The High Court at Calcutta (High Court of Judicature at Fort William>opened on 1st July 1862, with Sir Barnes Peacock as its first Chief Justice) was established by the Letters Patent dated 14th May 1862 (High Court's Act, 1861), which provided the jurisdiction and powers of the High Court. u/s 482 Code of Criminal Procedure for quashing the proceedings in Case No. C.796 of 1993 (corresponding to T.R. No. 35 of 1994) pending before the learned Judicial Magistrate Court, Alipore. Before the High CourtHigh Court High Court Judges in England and Wales handle complex and tough cases, sitting in London and traveling to court centers around the country. They preside over serious criminal and important civil cases, and support the Lord and Lady Justices in hearing appeals. High Court Judges are commonly referred to as ‘Mr/Mrs/Ms Justice surname’ and are given the prefix ‘The Honourable’. They are assigned to the King’s Bench Division, the Family Division, or the Chancery Division. The King’s Bench Division focuses on civil wrongs and judicial review, the Family Division deals with family law, and the Chancery Division handles various cases including company law and probate. Judges are appointed through a rigorous process overseen by the Judicial Appointments Commission., it was pointed out that the Magistrate had not properly appreciated the fact that there was no ban in importing the German sports magazine ‘STERN” into India. Consequently, reproduction of any picture would fall within the general exception contained in Section 79 Indian Penal Code. Reference was also made to letter dated 20th July, 1993 addressed by the Assistant Editor, Sports World to the Collector, Calcutta Customs and a copy of the letter dated 4.10.1993 sent by the Deputy Collector, Calcutta Customs to the Assistant Editor, Sports World. Referring to the picture, it was pointed out that the picture only demonstrates the protest lodged by Boris Becker as well as his fiance against ‘apartheid” and those facts were not properly appreciated by the learned Magistrate. Further, it was also pointed out that the offending picture could not be termed as obscene inasmuch as nudity per se was not obscene and the picture was neither suggestive nor provocative in any manner and would have no affect on the minds of the youth or the public in general. Further, it was also pointed out that the learned Magistrate should not have issued summons without application of mind. The High Court, however, did not appreciate all those contentions and declined to quash the proceedings u/s 483 Code of Criminal Procedure, against which this appeal has been preferred.
10. Shri Pradeep Ghosh, learned senior Counsel, appearing for the Appellants, submitted that the publication in question as well as the photograph taken, as a whole and in the background of facts and circumstances, cannot be said to be per se “obscene” within the meaning of Section 291(1) Indian Penal Code so as to remand a trial of the Appellants in respect of the alleged offence u/s 292(1) Indian Penal Code. The learned Counsel pointed out that obscenity has to be judged in the context of contemporary social mores, current socio-moral attitude of the community and the prevalent norms of acceptability/susceptibility of the community, in relation to matters in issue. In support of this contention, reliance was placed on the ConstitutionConstitution The Constitution encompasses the global system of rules governing constitutional authority. Simply reading selected provisions of the written text may be misleading. Understanding the underlying principles, such as federalism, democracy, constitutionalism, the rule of law, and respect for minorities, is crucial. Democratic institutions must allow for ongoing discussion and evolution, reflected in the right of participants to initiate constitutional change. This right entails a reciprocal duty to engage in discussions. Democracy involves more than majority rule, existing within the context of other constitutional values. Therefore, a profound understanding of these principles informs our appreciation of constitutional rights and obligations. Read more Bench judgment of this Court in Ranjit D. Udeshi Vs. State of Maharashtra, Reference was also made to the judgment of this Court in Shri Chandrakant Kalyandas Kakodkar Vs. The State of Maharashtra and Others, Few other judgments were also referred to in support of his contention. Learned senior Counsel also pointed out that the learned Magistrate as well as the High Court have completely overlooked the context in which the photograph was published and the message it had given to the public at large. Learned senior Counsel also pointed out that the photograph is in no way vulgar or lascivious. Learned senior Counsel also pointed out that the Courts below have not properly appreciated the scope of Section 79 Indian Penal Code and that the Appellants are justified in law in publishing the photograph and the article which was borrowed from the German magazine. Learned senior Counsel also pointed out that such a publication was never found to be obscene even by the State authorities and no FIR was ever lodged against the Appellants and a private complaint of such a nature should not have been entertained by the learned Magistrate without appreciating the facts as well as the law on the point. Learned senior Counsel pointed out that the High Court ought to have exercised jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case. u/s 482 Code of Criminal Procedure.
11. Shri Mohit Paul, learned Counsel, appearing for the Respondents, submitted that the Courts below were justified in holding that it would not be proper to give an opinion as to the culpability of the accused persons unless they are put to trial and the evidence is adduced. Learned Counsel pointed out that the question whether the publication of the photograph is justified or not and was made in good faith requires to be proved by the Appellants since good faith and public good are questions of fact and matters for evidence. Learned Counsel pointed out that the learned Magistrate as well as the High Court was justified in not quashing the complaint and ordering the Appellants to face the trial.
TEST OF OBSCENITY AND COMMUNITY STANDARDS
12. Constitution Bench of this Court in the year 1965 in Ranjit D. Udeshi (supra) indicated that the concept of obscenity would change with the passage of timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) and what might have been “obscene” at one point of time would not be considered as obscene at a later period. Judgment refers to several examples of changing notion of obscenity and ultimately the Court observed as follows:
… The world, is now able to tolerate much more than formerly, having coming indurate by literature of different sorts. The attitude is not yet settled….
This is what this Court has said in the year 1965.
13. Again in the year 1969, in Chandrakant Kalyandas Kakodar (supra), this Court reiterated the principle as follows:
The standards of contemporary society in India are also fast changing.
14. Above mentioned principle has been reiterated in Samaresh Bose and Another Vs. Amal Mitra and Another, by laying emphasis on contemporary social values and general attitude of ordinary reader. Again in 2010, the principle of contemporary community standards and social values have been reiterated in S. Khushboo Vs. Kanniammal and Another,
15. This Court in Ranjit D. Udeshi (supra) highlighted the delicate task to be discharged by the Courts in judging whether the word, picture, painting, etc. would pass the test of obscenity u/s 292 of the Code and the Court held as follows:
The Penal Code does not define the word obscene and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by courts, and in the last resort by the Supreme Court. The test must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not. None has so far attempted a definition of obscenity because the meaning can be laid bare without attempting a definition by describing what must be looked for. It may, however, be said at once that treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. The test of obscenity must square with the freedom of speech and expression guaranteed under our Constitution. This invites the court to reach a decision on a constitutional issue of a most far reaching character and it must beware that it may not lean too far away from the guaranteed freedom.
16. Applying the above test, to the book “Lady Chatterley’s Lover”, this Court in Ranjit D. Udeshi (supra) held that in treating with sex the impugned portions viewed separately and also in the setting of the whole book passed the permissible limits judged of from our community standards and there was no social gain to the public which could be said to preponderate the book must be held to satisfy the test of obscenity.
17. The novel “Lady Chatterley’s Lover” which came to be condemned as obscene by this Court was held to be not obscene in EnglandEngland In England, the Parliament was originally an advisory body summoned to consult with the monarch, and the courts exercised delegated royal powers, as “lions beneath the throne”. by Central Criminal Court. In England, the question of obscenity is left to the Jury. Byrne, J., learned Judge who presided over the Central Criminal Court in R. v. Penguin Books Ltd. (1961 Crl. LawLaw Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. Judiciary > Show me the face, and I will show you the law. Some people know how to bend the law rather than break it. Review 176) observed as follows:
In summing up his lordship instructed the jury that: They must consider the book as a whole, not selecting passages here and there and, keeping their feet on the ground, not exercising questions of taste or the functions of a censor. The first question, after publication was: was the book obscene? Was its effect taken as a whole to tend to deprave and corrupt persons who were likely, having regard to all the circumstances, to read it? To deprave meant to make morally bad, to pervert, to debase or corrupt morally. To corrupt meant to render morally unsound or rotten, to destroy the moral purity or chastity, to pervert or ruin a good quality, to debase, to defile. No intent to deprave or corrupt was necessary. The mere fact that the jury might be shocked and disgusted by the book would not solve the question. Authors had a right to express themselves but people with strong views were still members of the community and under an obligation to others not to harm them morally, physically or spiritually. The jury as men and women of the world, not prudish but with liberal minds, should ask themselves was the tendency of the book to deprave and corrupt those likely to read it, not only those reading under guidance in the rarefied atmosphere of some educational institution, but also those who could buy the book for three shillings and six pence or get it from the public library, possibly without any knowledge of Lawrence and with little knowledge of literature. If the jury were satisfied beyond reasonable doubt that the book was obscene, they must then consider the question of its being justified for public good in the interest of science, literature, art or learning or other subjects of general concern. Literary merits were not sufficient to save the book, it must be justified as being for the public good. The book was not to be judged by comparison with other books. If it was obscene then if the Defendant has established the probability that the merits of the book as a novel were so high that they outbalanced the obscenity so that the publication was the public good, the jury should acquit.
18. Later, this Court in Samaresh Bose (supra), referring to the Bengali novel “Prajapati” written by Samaresh Bose, observed as follows:
35…. We are not satisfied on reading the book that it could be considered to be obscene. Reference to kissing, description of the body and the figures of the female characters in the book and suggestions of acts of sex by themselves may not have the effect of depraving, debasing and encouraging the readers of any age to lasciviousness and the novel on these counts, may not be considered to be obscene. It is true that slang and various unconventional words have been used in the book. Though there is no description of any overt act of sex, there can be no doubt that there are suggestions of sex acts and that a great deal of emphasis on the aspect of sex in the lives of persons in various spheres of society and amongst various classes of people, is to be found in the novel. Because of the language used, the episodes in relation to sex life narrated in the novel, appear vulgar and may create a feeling of disgust and revulsion. The mere fact that the various affairs and episodes with emphasis on sex have been narrated in slang and vulgar language may shock a reader who may feel disgusted by the book does not resolve the question of obscenity….
We have already indicated, this was the contemporary standard in the year 1985.
19. We are, in this case, concerned with a situation of the year 1994, but we are in 2014 and while judging as to whether a particular photograph, an article or book is obscene, regard must be had to the contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons.
HICKLIN TEST:
20. In the United Kingdom, way back in 1868, the Court laid down the Hicklin test in Regina v. Hicklin (1868 L.R. 2 Q.B. 360), and held as follows:
The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.
21. Hicklin test postulated that a publication has to be judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults. United States, however, made a marked departure. of late, it felt that the Hicklin test is not correct test to apply to judge what is obscenity. In Roth v. United States 354 U.S. 476 (1957), the Supreme Court of United States directly dealt with the issue of obscenity as an exception to freedom of speech and expression. The Court held that the rejection of “obscenity” was implicit in the First Amendment. Noticing that sex and obscenity were held not to be synonymous with each other, the Court held that only those sex-related materials which had the tendency of “exciting lustful thoughts” were found to be obscene and the same has to be judged from the point of view of an average person by applying contemporary community standards.
22. In Canada also, the majority held in Brodie v. The Queen (1962 SCR 681) that D.H. Lawrence’s novel “Lady Chatterley’s Lover” was not obscene within the meaning of the Canadian Code of Criminal Procedure.
23. The Supreme Court of Canada in Regina v. Butler (1992) 1 SCR 452, held that the dominant test is the “community standards problems test”. The Court held that explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in the Canadian society and will not qualify as the undue exploitation of sex unless it employs children in its production. The Court held, in order for the work or material to qualify as ‘obscene’, the exploitation of sex must not only be a dominant characteristic, but such exploitation must be “undue”. Earlier in Towne Cinema Theatres Ltd. v. The Queen (1985) 1 SCR 494, the Canadian Court applied the community standard test and not Hicklin test.
COMMUNITY STANDARD TEST:
24. We are also of the view that Hicklin test is not the correct test to be applied to determine “what is obscenity”. Section 292 of the Indian Penal Code, of course, uses the expression ‘lascivious and prurient interests’ or its effect. Later, it has also been indicated in the said Section of the applicability of the effect and the necessity of taking the items as a whole and on that foundation where such items would tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it. We have, therefore, to apply the “community standard test” rather than “Hicklin test” to determine what is “obscenity”. A bare reading of Sub-section (1) of Section 292, makes clear that a picture or article shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene. Once the matter is found to be obscene, the question may arise as to whether the impugned matter falls within any of the exceptions contained in Section. A picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.
MESSAGE AND CONTEXT
25. We have to examine the question of obscenity in the context in which the photograph appears and the message it wants to convey. In Bobby Art International, etc. Vs. Om Pal Singh Hoon and others, this Court while dealing with the question of obscenity in the context of film called Bandit Queen pointed out that the so-called objectionable scenes in the film have to be considered in the context of the message that the film was seeking to transmit in respect of social menace of torture and violence against a helpless female child which transformed her into a dreaded dacoit. The Court expressed the following view:
First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breasts and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinemagoer’s lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that the Tribunal referred to was not at Phoolan Devi’s nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shred of dignity. Nakedness does not always arouse the baser instinct. The reference by the Tribunal to the film “Schindler’s List” was apt. There is a scene in it of rows of naked men and women, shown frontally, being led into the gas chambers of a Nazi concentration camp. Not only are they about to die but they have been stripped in their last moments of the basic dignity of humanHuman Ο άνθρωπος (Humanum> Homo sapiens) मानव:. We have failed to consider the minimum need to be a 'human'. For Christians, human beings are sinful creatures, who need some saviour. For Evolution biology a man is still evolving, for what, we don´t know. For Buddhist Nagarjuna, the realisation of having a human body is a mere mental illusion. We are not ready to accept that a human is a computer made of meat. For a slave master, a human person is another animal, his sons and daughters are his personal property. beings. Tears are a likely reaction; pity, horror and a fellow-feeling of shame are certain, except in the pervert who might be aroused. We do not censor to protect the pervert or to assuage the susceptibilities of the over-sensitive. “Bandit Queen” tells a powerful human story and to that story the scene of Phoolan Devi’s enforced naked parade is central. It helps to explain why Phoolan Devi became what she did: her rage and vendetta against the society that had heaped indignities upon her.
(Emphasis Supplied)
26. In Ajay Goswami Vs. Union of India (UOI) and Others, while examining the scope of Section 292 Indian Penal Code and Sections 3, 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986, this Court held that the commitment to freedom of expression demands that it cannot be suppressed, unless the situations created by it allowing the freedom are pressing and the community interest is endangered.
27. We have to examine whether the photograph of Boris Becker with his fiance Barbara Feltus, a dark-skinned lady standing close to each other bare bodied but covering the breast of his fiance with his hands can be stated to be objectionable in the sense it violates Section 292 Indian Penal Code. Applying the community tolerance test, we are not prepared to say such a photograph is suggestive of deprave minds and designed to excite sexual passion in persons who are likely to look at them and see them, which would depend upon the particular posture and background in which the woman is depicted or shown. Breast of Barbara Feltus has been fully covered with the arm of Boris Becker, a photograph, of course, semi-nude, but taken by none other than the father of Barbara. Further, the photograph, in our view, has no tendency to deprave or corrupt the minds of people in whose hands the magazine Sports World or Anandabazar Patrika would fall.
28. We may also indicate that the said picture has to be viewed in the background in which it was shown, and the message it has to convey to the public and the world at large. The cover story of the Magazine carries the title, posing nude, dropping of harassment, battling racism in Germany. Boris Becker himself in the article published in the German magazine, speaks of the racial discrimination prevalent in Germany and the article highlights Boris Becker’s protests against racism in Germany. Boris Becker himself puts it, as quoted in the said article:
the nude photos were supposed to shock, no doubt about it……. What I am saying with these photos is that an inter-racial relationship is okay.
29. The message, the photograph wants to convey is that the colour of skin matters little and love champions over colour. Picture promotes love affair, leading to a marriage, between a white-skinned man and a black skinned woman.
30. We should, therefore, appreciate the photograph and the article in the light of the message it wants to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and marriage between white skinned man and a black skinned woman. When viewed in that angle, we are not prepared to say that the picture or the article which was reproduced by Sports World and the Anandabazar Patrika be said to be objectionable so as to initiate proceedings u/s 292 Indian Penal Code or u/s 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
31. We have found that no offence has been committed u/s 292 Indian Penal Code and then the question whether it falls in the first part of Section 79 Indian Penal Code has become academic. We are sorry to note that the learned Magistrate, without proper application of mind or appreciation of background in which the photograph has been shown, proposed to initiate prosecution proceedings against the Appellants. Learned Magistrate should have exercised his wisdom on the basis of judicial precedents in the event of which he would not have ordered the Appellants to face the trial. The High Court, in our view, should have exercised powers u/s 482 Code of Criminal Procedure to secure the ends of justice.
32. We are, therefore, inclined to allow this appeal and set aside the criminal proceedings initiated against the Appellants. The Appeal is allowed as above.
(2014) 3 AD(SC) 337 : (2014) 137 AIC 211 : (2014) AIR(SCW) 1201 : (2014) 3 AIRJharR 552 : (2014) AIR(SC) 1495 : (2014) 2 AllCrlRulings 1360 : (2014) AllSCR 880 : (2014) 2 ALT(Crl) 115 : (2014) 2 AndhLD(Criminal) 131 : (2014) 1 CalCriLR 810 : (2014) 1 CCR 447 : (2014) CriLJ 1560 : (2014) CriLR 523 : (2014) 1 Crimes 218 : (2014) 2 CTC 188 : (2014) Sup2 CutLT(Criminal) 411 : (2014) 2 ECrC 311 : (2014) 2 JT 564 : (2014) 1 KerLJ 695 : (2014) 1 KLT(SN) 45 : (2014) 2 LawHerald(SC) 1066 : (2014) 2 LW 944 : (2014) 1 LW(Cri) 677 : (2014) 3 MhLJ(Crl) 166 : (2014) 1 MLJ(Criminal) 585 : (2014) 1 NCC 369 : (2014) 1 OriLawRev 833 : (2014) RajCriC 185 : (2014) 1 RCR(Criminal) 919 : (2014) 1 RecentApexJudgments(RAJ) 638 : (2014) 3 RLW 2449 : (2014) 2 SCALE 16 : (2014) 4 SCC 257 : (2014) 2 SCC(Cri) 291 : (2014) 3 SCJ 663 : (2014) 2 SCR 263 : (2014) 1 UC 558