21.02.2014 passed in Cr.R.No.317/2012 (Nagendra Singh Gharwar Vs. Manmohan
06.11.2012 passed in unregistered complaint case (Nagendra Singh Gharwar Vs.
2. Learned counsel for the petitioner submits that he filed a private complaint for
1986). on the ground that in Rewa addition of Dainik Bhaskar news paper,
of Women (Prohibition) Act. Aforesaid act of respondent is not covered under any
exception and it has been published solely for commercial purpose. The
Sections 292 and 293 of the IPC. Therefore, learned trial Court as well as
3. Learned counsel for the respondent submits that petitioner has no locus
standi to file instant complaint. It is urged that the alleged obscene item is a bona
fide advertisement. Further, image shown in the advertisement has been blurred.
Therefore, learned courts below have rightly dismissed the petitioner's complaint.
4. Heard. Perused the record of the case.
5. Sole issue involved in the case is whether the advertisement of nude lady
6. Before proceeding further, it would be appropriate to refer and reproduce
7. In Shri Chandsrakant Kalyandas Kakodkar Vs. State of Maharashtra
8. In Ajay Goswami Vs. Union of India and others, (2007) 1 SCC 143, the
―32. (a) whether the ‗average person, applying
contemporary community standards' would find that the
work, taken as a whole, appeal to the prurient interest........
(b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically, defined by the
applicable state law; and
(c) whether the work taken as a whole, lacks serious
literary, artistic, political, or scientific value."
59. In Chandrakant Kalyandas Kakodkar vs. The State of
Maharashtra and Others, (1969) 2 SCC 687, this Court has held:
60. In Samaresh Bose & Anr. Vs. Amal Mitra & Anr., (1985)
4 SCC 289, this Court held as under:
"29. In England, as we have earlier noticed, the
decision on the question of obscenity rests with the jury
who on the basis of the summing up of the legal principles
governing such action by the learned Judge decides
whether any particular novel, story or writing is obscene or
not. In India, however, the responsibility of the decision
rests essentially on the Court. As laid down in both the
decisions of this Court earlier referred to, "the question
whether a particular article or story or book is obscene or
not does not altogether depend on oral evidence, because it
is the duty of the Court to ascertain whether the book or
story or any passage or passages therein offend the
provisions of Section 292 I.P.C." In deciding the question
of obscenity of any book, story or article the Court whose
responsibility it is to adjudge the question may, if the Court
considers it necessary, rely to an extent on evidence and
views of leading literary personage, if available, for its own
appreciation and assessment and for satisfaction of its own
conscience. The decision of the Court must necessarily be
on an objective assessment of the book or story or article as
a whole and with particular reference to the passages
complained of in the book, story or article. The Court must
take an overall view of the matter complained of as
obscene in the setting of the whole work, but the matter
charged as obscene must also be considered by itself and
separately to find out whether it is so gross and its
obscenity so pronounced that it is likely to deprave and
corrupt those whose minds are open to influence of this sort
and into whose hands the book is likely to fall. Though the
Court must consider the question objectively with an open
mind, yet in the matter of objective assessment the
subjective attitude of the Judge hearing the matter is likely
to influence, even though unconsciously, his mind and his
decision on the question. A Judge with a puritan and
prudish outlook may on the basis of an objective
assessment of any book or story or article, consider the
same to be obscene. It is possible that another Judge with a
different kind of outlook may not consider the same book
to be obscene on his objective assessment of the very same
book. The concept of obscenity is moulded to a very great
extent by the social outlook of the people who are generally
expected to read the book. It is beyond dispute that the
concept of obscenity usually differs from country to
country depending on the standards of morality of
contemporary society in different countries. In our opinion,
in judging the question of obscenity, the Judge in the first
place should try to place himself in the position of the
author and from the view point of the author the judge
should try to understand what is it that the author seeks to
convey and whether what the author conveys has any
literary and artistic value. The Judge should thereafter place
himself in the position of a reader of every age group in
whose hands the book is likely to fall and should try to
appreciate what kind of possible influence the book is
likely to have in the minds of the readers. A Judge should
thereafter apply his judicial mind dispassionately to decide
whether the book in question can be said to be obscene
within the meaning of Section 292 I.P.C. by an objective
assessment of the book as a whole and also of the passages
complained of as obscene separately. In appropriate cases,
the Court, for eliminating any subjective element or
personal preference which may remain hidden in the sub-
conscious mind and may unconsciously affect a proper
objective assessment, may draw upon the evidence on
record and also consider the views expressed by reputed or
recognised authors of literature on such questions if there
be any for his own consideration and satisfaction to enable
the Court to discharge the duty of making a proper
assessment".
Per se nudity is not obscenity
61. The American Courts, from time to time, have dealt with the
issues of obscenity and laid down parameters to test obscenity. It was
further submitted that while determining whether a picture is obscene
or not it is essential to first determine as to quality and nature of
material published and the category of readers. In 50 Am Jur 2 d, para
22 at page 23 reads as under:
" Articles and pictures in a newspaper must meet the
Miller test's constitutional standard of obscenity in order
for the publisher or distributor to be prosecuted for
obscenity. Nudity alone is not enough to make material
legally obscene.
The possession in the home of obscene newspaper is
constitutionally protected, except where the such materials
constitute child poronography."
Contemporary Society:
62. It was also submitted that in order to shield minors and children
the State should not forget that the same content might not be
offensive to the sensibilities of adult men and women. The incidence
of shielding the minors should not be that the adult population is
restricted to read and see what is fit for children.
63. In Alfred E Butler vs. State of Michigan, 1 Led 2d 412 (1957),
the U.S. Supreme Court held as under:
"The State insists that, by thus quarantining the general
reading public against books not too rugged for grown men
and women in order to shield juvenile innocence, it is
exercising its power to promote the general welfare. Surely,
this is to burn the house to roast the pig."
64. There should be no suppression of speech and expression in
protecting children from harmful materials : In Reno vs. American
Civil Liberties Union, 138 L ED 2d 874 (1997), it has been held that:
"The Federal Government's interest in protecting
children from harmful materials does not justify an
unnecessarily broad suppression of speech addressed to
adults, in violation of the Federal Constitution's First
Amendment; the Government may not reduce the adult
population to only what is fit for children, and thus the
mere fact that a statutory regulation of speech was enacted
for the important purpose of protecting children from
exposure to sexually explicit material does not foreclose
inquiry into the statute's validity under the First
Amendment, such inquiry embodies an overarching
commitment to make sure that Congress has designed its
statute to accomplish its purpose without imposing an
unnecessarily great restriction on speech."
65. In United States v Playboy Entertainment Group, Inc. 146 Led
2d 865 (2000), it has been held that:
"In order for the State to justify prohibition of a
particular expression of opinion, it must be able to show
that its action was caused by something more than a mere
desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint. (393 US 503,
509 (1969)....... What the Constitution says is that these
judgments are for the individual to make, not for the
government of decree, even with the mandate or approval
of a majority. Technology expands the capacity to choose;
and it denies the potential of this revolution if we assume
the Government is best positioned to make these choices
for us."
Literary merit and "prepondering social purpose"
66. Where art and obscenity are mixed, what must be seen is
whether the artistic, literary or social merit of the work in question
outweighs its "obscene" content. This view was accepted by this Court
in Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881,
" Where there is propagation of ideas, opinions and information of
public interest or profit the approach to the problem may become
different because then the interest of society may tilt the scales in
favour of free speech and expression. It is thus that books on medical
science with intimate illustrations and photographs, though in a sense
immodest, are not considered to be obscene but the same illustrations
and photographs collected in book form without the medical text
would certainly be considered to be obscene......................
* * * *
Where art and obscenity are mixed, the element of art must be so
prepondering as to overshadow the obscenity or make it so
trivial/inconsequential that it can be ignored; Obscenity without a
preponderating social purpose or profit cannot have the constitutional
protection of free speech"
Contemporary Standards
67. In judging as to whether a particular work is obscene, regard
must be had to contemporary mores and national standards. While the
Supreme Court in India held Lady Chatterley's Lover to be obscene, in
England the jury acquitted the publishers finding that the publication
did not fall foul of the obscenity test. This was heralded as a turning
point in the fight for literary freedom in UK. Perhaps "community
mores and standards" played a part in the Indian Supreme Court
taking a different view from the English jury. The test has become
somewhat outdated in the context of the internet age which has broken
down traditional barriers and made publications from across the globe
available with the click of a mouse.
Judging the work as a whole
68. It is necessary that publication must be judged as a whole
and the impugned should also separately be examined so as to judge
whether the impugned passages are so grossly obscene and are likely
to deprave and corrupt.
Opinion of literary/artistic experts
69. In Ranjit Udeshi Vs. State of Maharashtra, AIR 1965 SC
881 this Court held that the delicate task of deciding what is artistic
and what is obscene has to be performed by courts and as a last resort
by the Supreme Court and therefore, the evidence of men of literature
or others on the question of obscenity is not relevant. However,
in Samresh Bose v. Amal Mitra, (1985) 4 SCC 289 this Court
observed:
"In appropriate cases, the court, for eliminating any
subjective element or personal preference which may
remain hidden in the subconscious mind and may
unconsciously affect a proper objective assessment, may
draw upon the evidence on record and also consider the
views expressed by reputed or recognized authors of
literature on such questions as if there by any of his own
consideration and satisfaction to enable the court to
discharge the duty of making a proper assessment."
Clear and Present Danger
70. In S.Ragarajan v. P. Jagjivam Ram, (1989) 2 SCC 574,
while interpreting Article 19(2), this Court borrowed from the
American test of clear and present danger and observed:
"the commitment to freedom demands that it cannot
be suppressed unless the situations created by allowing the
freedom are pressing and the community interest is
endangered. The anticipated danger should not be remote,
conjectural or far-fetched. It should have a proximate and
direct nexus with the expression. The expression of thought
should be intrinsically dangerous to the public interest. In
other words, the expression should be inseparably like the
equivalent of a 'spark in a power keg'."
Test of Ordinary Man
71. The test for judging a work should be that of an ordinary man of
common sense and prudence and not an "out of the ordinary or
hypersensitive man." As Hidayatullah, C.J. remarked in K.A. Abbas
Vs Union of India, (1970) 2 SCC 780:
"If the depraved begins to see in these things more
than what an average person would, in much the same way,
as it is wrongly said, a Frenchman sees a woman's legs in
everything, it cannot be helped."
74. In view of the foregoing legal propositions the pictures in
dispute had been published by the respondents with the intent to
inform readers of the current entertainment news from around the
world and India. The respondent's newspaper seeks to provide a
wholesome reading experience offering current affairs, sports, politics
as well as entertainment news to keep its readers abreast of all the
latest happenings in the world. The pictures that have been published
should not be viewed in isolation rather they have to be read with the
news reports next to them. In the event, that a particular news items or
picture offends any person they may avail of the remedies available to
them under the present legal framework. Any steps to impose a
blanket ban on publishing of such photographs, in our opinion, would
amount to prejudging the matter as has been held in Fraser vs.
Evans, (1969) 1 QB 349.
75. The definition of obscenity differs from culture to culture,
between communities within a single culture, and also between
individuals within those communities. Many cultures have produced
laws to define what is considered to be obscene, and censorship is
often used to try to suppress or control materials that are obscene
under these definitions.
76. The term obscenity is most often used in a legal context to
describe expressions (words, images, actions) that offend the prevalent
sexual morality. On the other hand the Constitution of India
guarantees the right of freedom to speech and expression to every
citizen. This right will encompass an individuals take on any
issue.However, this right is not absolute, if such speech and
expression is immensely gross and will badly violate the standards of
morality of a society. Therefore, any expression is subject to
reasonable restriction. Freedom of expression has contributed much to
the development and well-being of our free society.
77. This right conferred by the Constitution has triggered various
issues. One of the most controversial issues is balancing the need to
protect society against the potential harm that may flow from obscene
material, and the need to ensure respect for freedom of expression and
to preserve a free flow of information and idea.
78. Be that as it may, the respondents are leading newspapers in India
they have to respect the freedom of speech and expression as is
guaranteed by our constitution and in fact reaches out to its readers
any responsible and decent manner. In our view, any steps to ban
publishing of certain news pieces or pictures would fetter the
independence of free press which is one of the hallmarks of our
democratic setup. In our opinion, the submissions and the propositions
of law made by the respective counsel for the respondents clearly
established that the present petition is liable to be dismissed as the
petitioner has failed to establish the need and requirement to curtail
the freedom of speech and expression. The Times of India and
Hindustan Times are leading newspapers in Delhi having substantial
subscribers from all sections. It has been made clear by learned
counsel appearing for the leading newspapers that it is not their
intention to publish photographs which cater to the prurient interest.
As already stated, they have an internal regulatory system to ensure no
objectionable photographs or matters gets published. We are able to
see that respondent Nos. 3 & 4 are conscious of their responsibility
towards children but at the same time it would be inappropriate to
deprive the adult population of the entertainment which is well within
the acceptable levels of decency on the ground that it may not be
appropriate for the children. An imposition of a blanket ban on the
publication of certain photographs and news items etc. will lead to a
situation where the newspaper will be publishing material which
caters only to children and adolescents and the adults will be deprived
of reading their share of their entertainment which can be permissible
under the normal norms of decency in any society.
79. We are also of the view that a culture of 'responsible reading'
should be inculcated among the readers of any news article. No news
item should be viewed or read in isolation. It is necessary that
publication must be judged as a whole and news items, advertisements
or passages should not be read without the accompanying message
that is purported to be conveyed to the public. Also the members of
the public and readers should not look for meanings in a picture or
written article, which is not conceived to be conveyed through the
picture or the news item.
80. We observe that, as decided by the American Supreme Court in
United States v. Playboy Entertainment Group, Inc, 146 L ed 2d
865 (2000), that,
"in order for the State.........to justify prohibition of a
particular expression of opinion, it must be able to show
that its action was caused by something more than a mere
desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint."
Therefore, in our view, in the present matter, the petitioner has failed
to establish his case clearly. The petitioner only states that the pictures
and the news items that are published by the respondents 3 and 4
'leave much for the thoughts of minors.‖
9. In Aveek Sarkar and another Vs. State of West Bengal and
others, (2014) 4 SCC 257, the Hon'ble Apex has held as under:-
"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 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. The 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 5-5-1993 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
abovementioned photograph as well as the article on 6-5-1993,
as appeared in Sports World.
Test of obscenity and community standards
13. The Constitution Bench of this Court in the year 1965
in Ranjit D. Udeshi [Ranjit D. Udeshi v. State of Maharashtra,
AIR 1965 SC 881 : (1965) 2 Cri LJ 8] 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. The judgment refers
to several examples of changing notion of obscenity and
ultimately the Court observed as follows: (AIR p. 888, para 18)
―18. ... The world, is now able to tolerate much more
than formerly, having become indurated by literature
of different sorts. The attitude is not yet settled. ...‖
This is what this Court has said in the year 1965.
14. Again in the year 1969, in Chandrakant Kalyandas
Kakodkar v. State of Maharashtra, (1969) 2 SCC 687] , this
Court reiterated the principle as follows: (SCC p. 694, para 12)
―12. ... The standards of contemporary society in
India are also fast changing.‖
The abovementioned 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, (AIR 1965 SC 881)
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: (AIR p. 887, para 16)
16. ... 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.
Applying the above test, to the book Lady Chatterley's Lover,
this Court in Ranjit D. Udeshi, AIR 1965 SC 881 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.
16. 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 the Central Criminal Court. In England, the
question of obscenity is left to the jury. Byrne, J., the learned
Judge who presided over the Central Criminal Court
in R. v. Penguin Books Ltd. [1961 Cri Law Rev 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 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.‖
17. Later, this Court in Samaresh Bose (1985) 4 SCC 289,
referring to the Bengali novel Prajapati written by Samaresh
Bose, observed as follows: (SCC p. 317, para 35)
―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.
18. 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
19. In the United Kingdom, way back in 1868, the Court laid
down the Hicklin test in R. v. Hicklin, (1868) LR 3 QB 360]
and held as follows: (QB p. 371)
―... the test of obscenity is this, 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.‖
20. The Hicklin [R. v. Hicklin, (1868) LR 3 QB 360] 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. The United States,
however, made a marked departure. Of late, it felt that
the Hicklin test [R. v. Hicklin, (1868) LR 3 QB 360] is not
correct test to apply to judge what is obscenity.
In Roth v. United States [1 L Ed 2d 1498 : 354 US 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.
21. In Canada also, the majority held in Brody v. R. [1962 SCR
681 (Can SC)] that D.H. Lawrence's novel Lady Chatterley's
Lover was not obscene within the meaning of the Canadian
Criminal Code.
22. The Supreme Court of Canada in R. v. Butler [(1992) 1 SCR
452 (Can SC)] held that the dominant test is the ―community
standard problems test‖. The Court held that explicit sex that is
not violent and neither degrading nor dehumanising is generally
tolerated in 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. R. [(1985) 1 SCR 494 (Can
SC)] the Canadian Court applied the community standard test
and not the Hicklin test [R. v. Hicklin, (1868) LR 3 QB 360] .
Community standard test
23. We are also of the view that Hicklin test [R. v. Hicklin,
(1868) LR 3 QB 360] is not the correct test to be applied to
determine ―what is obscenity‖. Section 292 of the 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 the ―Hicklin test‖
[R. v. Hicklin, (1868) LR 3 QB 360] 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 the section. A picture of a nude/semi-
nude woman, as such, cannot per se be called obscene unless it
has the tendency to arouse the feeling of 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
24. 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 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: (SCC p. 15, para 27)
―27. 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)
25. In Ajay Goswami v. Union of India [(2007) 1 SCC 143 :
(2007) 1 SCC (Cri) 298] , 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: (SCC p.
170, para 70)
―70. ... ‗45. ... [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.‖
26. We have to examine whether the photograph of Boris Becker
with his fiancée Barbara Feltus, 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
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.‖
Factual analysis of the case:-
10. Now the facts of the case would be examined in the light aforesaid legal
principles/parameters as enunciated in the aforesaid pronouncements.
11. Contents of alleged advertisement are as under:-
―GET READY TO SIZZLE
VIACOM18 MOTION PICTURES IN ASSOCIATION WITH BURMAWALA BROS.
PRESENTS
PLAYERS
ABBAS MUSTAN THRILLER STYLE
GO FOR GOLD JANUARY 6, 2012
nsf[k, ‗Iys;lZ dk flty' fofM;ks vkt jkr 9%00 ls 10%00 ds chp‖
12. Thus, aforesaid advertisement pertains to video titled as ―players of sizzle‖.
Further, it is also evident from aforesaid advertisement that on the body of lady
shown in the advertisement words ―GET READY TO SIZZLE‖ has been written in
bold capital letters. Further, body parts of the lady shown in the advertisement have
been blurred and aforesaid words are also written thereon. Thus, though the body
of lady shown in the advertisement does not have any cloths but breast and genitals
part are sufficiently blurred. Some words are also written in bold letters on genitals
part of the lady.
13. Thus, if photograph of lady published in Dainik Bhaskar news paper, Rewa
edition is seen/viewed in/from any angle, then, it cannot be said that aforesaid
photograph is suggestive of deprave minds and designed to excite sexual passion in
persons who are likely to look at them and see them. In Aveek Sarkarer (supra),
breasts of the lady were fully covered with the arms of Boris Becker and in the
instant case, breasts of the lady have been fully blurred and they are not visible.
Thus, in the instant case also, the breasts as well as genitals part of the lady are not
visible at all. In this Court's opinion, aforesaid photograph of lady published in
Dainik Bhaskar News paper, Rewa, edition has no tendency to deprave or corrupt
the minds of people in whose hands the news paper would fall.
14. Hence, if aforesaid factual matrix of the case is examined in the light of legal
principles/parameters enunciated by the Hon'ble Apex Court in the forgoing paras,
especially in Ajay Goswami (supra) and Aveek Sarkar and another (supra),
then in this Court's opinion, even prima facie, ingredients constituting offence
under Section 292 and 293 of IPC and Sections 3, 4 and 6 of the Act, 1986 are not
made out, and, there is no sufficient evidence and grounds for proceeding further
and for taking cognizance of offence under Sections 292 and 293 of IPC and
Section 3, 4 and 6 of the Act, 1986.
15. Further, perusal of order passed by the learned trial Court dated 06.11.2012
as well as order passed by the learned Revisional Court dated 21.02.2014 reveals
that both the courts have discussed the matter in detail and have examined
facts/evidence of the case in the light of the legal principles applicable to the facts
of the case. No illegality appears to have been committed by the courts in rejecting
the complaint/dismissing the revision filed by the petitioner.
16. Resultantly, in view of the discussion in the forgoing paras, no grounds
whatsoever are made out to interfere in the findings recorded by the trial Court in
order dated 06.11.2012 as well as order passed by the Revisional Court dated
21.02.2014.
17. Hence, this petition filed by the petitioner is dismissed.
18. Petition filed by the petitioner is disposed off accordingly.
(ACHAL KUMAR PALIWAL)
JUDGE
L.R.
- SINGH RANA
