Orissa High Court
Kabita Palkia vs State Of Odisha & Anr. .... Opposite ... on 17 March, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 127 of 2025
Kabita Palkia .... Petitioner(s)
Mr. S.K. Patnaik, Advocate
-versus-
State of Odisha & Anr. .... Opposite Party(s)
Mr. S.N. Biswal, ASC
CORAM: JUSTICE SIBO SANKAR MISHRA
ORDER
Order No. 17.03.2025
01. 1. Heard.
2. The petitioner by invoking inherent jurisdiction of this
Court under Section 482 Cr.P.C. is seeking quashing of the
impugned order dated 06.09.2021 passed by the learned JMFC,
Bisam Cuttack in G.R. Case No.56 of 2020 arising out of Ambadola
P.S. Case No.19 dated 25.02.2020 vide Annexure-3, whereby
cognizance of offence punishable under Sections 292(1)/506 IPC
read with Section 67/67(A) of I.T. Act has been taken against the
petitioner.
3. Learned counsel for the petitioner by relying upon the
judgment of the Hon'ble Supreme Court in the case of Apoorva
Arora and Anr. V. State (Govt. of NCT of Delhi) & Anr. in SLP
(Crl.) No. 5463-5464 of 2023 submits that even if the allegation
made by the prosecution against the petitioner is taken at its face
value, no offence under Section 67/67(A) of I.T. Act is made out.
He has relied upon paragraphs-27, 28 and 45 of the aforesaid
judgment, which reads as under:
"27. A Division Bench of this Court in Aveek Sarkar (supra) also
quashed an FIR under Section 292 against the magazine cover of
Sports World and Anandbazar Patrika that carried the image of
Boris Becker, a tennis player, posing nude with his fiancée, who are
an interracial couple. The Court held that while judging a
photograph, article or book to be obscene, "regard must be had to
the contemporary mores and national standards and not the
standard of a group of susceptible or sensitive persons". The Court
held that the Hicklin test must not be applied as it "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." Even in the
United States, where the test was first formulated, the courts no
longer apply the Hicklin test and instead apply the test formulated in
Roth v. United States where the US Supreme Court held that sex-
related material is obscene only when it has the tendency of exciting
lustful thoughts when judged from the perspective of an average
person by applying the community standards test. Similarly, in
Canada, the dominant test is the „community standards problem test‟
as per which a work qualifies as obscene when the exploitation of
sex is its dominant characteristic and such exploitation is undue.
Taking note of these jurisprudential developments, the Court in
Aveek Sarkar markedly moved away from the Hicklin test to the
"community standard test" where the material is considered as a
whole to determine whether the specific portions have the tendency
to deprave and corrupt.
28. Applying this test, it was held that a picture of a nude/semi- nude
woman is not per se obscene unless it arouses sexual desire or
overtly reveals sexual desire or has the tendency of exciting lustful
thoughts. In the present case, the posture and the background of the
woman posing with her fiancée, whose photograph was taken by her
father, does not have the tendency to deprave or corrupt those in
whose hands the magazine would fall when considered in light of the
broader social message of the picture against apartheid, racism, and
to promote love and marriage across race. We may note that this
Court followed the community standards test in Devidas
Ramachandra Tuljapurkar (supra).
45. The High Court has not given any reason whatsoever on
how Section 67A is attracted to the facts of the present case. In our
opinion, the offence of Section 67A is not at all made out."
Relying upon the observations made by the Hon'ble Supreme Court
in the above referred judgment, he submits that this is a case where
the FIR is liable to be quashed.
4. I have taken into consideration the materials placed before
this Court and perused the statement of the witnesses. I am not
inclined to entertain this petition at the stage of cognizance.
However, liberty is granted to the petitioner to move specific
application in that regard before the trial court. If such application is
filed, the same shall be considered in accordance with law.
5. With the aforesaid observation, the CRLMC is disposed of.
(S.S. Mishra)
Judge
Ashok
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Location: High Court of Orissa
Date: 18-Mar-2025 10:48:03
