advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, February 6, 2014

Sec. 292 of I.P.C. - Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986, - private complaint against STERN magazine and Anandabazar Patrika -The message,a picture of Boris Becker, a world renowned Tennis player, posing nude with his dark-skinned fiancée by name Barbara Feltus, a film actress- 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.- is not an offence - Lower court and high court failed to consider the settled postilion of law - Apex court quashed the proceedings = Aveek Sarkar & Anr. .. Appellants Versus State of West Bengal & Ors. .. Respondents = 2014 (February part) judis.nic.in/supremecourt/filename=41203

 Sec. 292 of I.P.C. - Section 4 of the Indecent Representation of Women (Prohibition)  Act,  1986,  - private complaint against STERN magazine and Anandabazar Patrika -The message,a  picture  of  Boris  Becker,  a  world renowned Tennis player, posing nude with his  dark-skinned  fiancée by name Barbara Feltus, a film actress- 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.- is not an offence - Lower court and high court failed to consider the settled postilion of law - Apex court quashed the proceedings =
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  fiancée
        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 Barbaba 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.   =
Advocate filed a private complaint under sec. 292 I.P.C. and sec.4 of Indecent Representation of Women (Prohibition)  Act,  1986.
Complainant also urged that the accused persons should  not  only  be
prosecuted under Section 292 IPC, but also be prosecuted under Section 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 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 under Section 292 IPC.  Issue summons  against  all
    the  accused  persons  fixing  17.6.1993  for  S.P.   and   appearance.
    Requisite at one.” =

whether the photograph of Boris  Becker  with  his
fiancée Barbara Fultus, a dark-skinned lady standing close  to  each  other
bare bodied but covering the breast of his fiancée with his  hands  can  be
stated to be objectionable in  the  sense  it  violates  Section  292  IPC. =

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 Fultus 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 under Section 292 IPC or  under
Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.

31.   We have found that no offence has been committed  under  Section  292
IPC and then the question whether it falls in the first part of Section  79
IPC 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 under Section 482 Cr.P.C. 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 (February part) judis.nic.in/supremecourt/filename=41203                                 K.S. RADHAKRISHNAN, A.K. SIKRI     

                           REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.902 OF 2004


Aveek Sarkar & Anr.                     .. Appellants

                                   Versus

State of West Bengal & Ors.             .. Respondents




                               J U D G M E N T



K. S. RADHAKRISHNAN, J.

     1.   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  fiancée
        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 Barbaba 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 under Section 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 moral 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  mind  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 under Section 292 IPC.  Issue summons  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 under Section 292 IPC, but also be prosecuted under Section 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 faith,  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 evidence comes in it will not be proper  to  give  any
    opinion 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 under Section 292 I.P.C.  At present having regard to the facts
    of the case, I find the matter merits 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 I.P.C.”

8.    The Magistrate after holding so,  held  the  accused  persons  to  be
examined under Section 251 Cr.P.C. and ordered that they would  be  put  to
face  the  trial  for  the  offence  punishable  under  Section   292   IPC
alternatively under Section 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 Calcutta under Section 482  Cr.P.C.  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 Court, 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
IPC.  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 fiancée 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 under  Section  483
Cr.P.C., 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) IPC so as to remand a trial of the Appellants in respect  of
the alleged offence under Section 292(1) IPC.  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 Constitution Bench judgment of this Court
in Ranjit D. Udeshi v.  State of Maharashtra AIR 1965 SC 881.
Reference was also made to the judgment of
this Court in  
Chandrakant Kalyandas Kakodar v. State of  Maharashtra  1969(2) SCC 687.  
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  IPC  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
jurisdiction under Section 482 Cr.P.C.

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 time 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  v. Amal Mitra (1985) 4 SCC 289  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 V. Kanniammal (2010) 5 SCC 600.

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 under Section  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  England  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. Law 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 Criminal Code

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 & Ors. v. Om Pal Singh Hoon (1996) 4 SCC 1,
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 human 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 v. Union of India (2007) 1 SCC 143,  while  examining
the scope of Section 292 IPC 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
fiancée Barbara Fultus, a dark-skinned lady standing close  to  each  other
bare bodied but covering the breast of his fiancée with his  hands  can  be
stated to be objectionable in  the  sense  it  violates  Section  292  IPC.
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 Fultus 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 under Section 292 IPC or  under
Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.

31.   We have found that no offence has been committed  under  Section  292
IPC and then the question whether it falls in the first part of Section  79
IPC 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 under Section 482 Cr.P.C. 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.






                                       eard Hear……………………………..J.
                                       (K. S. Radhakrishnan)






                                       .….………………………...J.
                                       (A.K. Sikri)
New Delhi,
February 03, 2014.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.