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TMI Blog2014 (2) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure to secure the ends of justice. The criminal proceedings initiated against the Appellants set aside - appeal allowed. - K.S. Panicker Radhakrishnan And A.K. Sikri, JJ. For the Appellant : Pradeep Ghosh, Sr. Adv., Amar Dave, Abhishek Roy and Kartik Bhatnagar, Advs. For Manik Karanjawala, Adv. For the Respondents : Mohit Paul, Shagun Matta, Advs. for Anip Sachthey, Adv. and V.D. Khanna, Adv. JUDGMENT K.S. PANICKER 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 fianc e by name Barbara Feltus, a film actress, which was photographed by none other than her father. The article states that, in an interview, both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 Indian Penal Code. 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 Indian Penal Code, but also be prosecuted under Section 4 of the Indecen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 fianc e 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. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reponderate 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 infl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tandard 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 exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 fianc e Barbara Feltus, a dark-skinned lady standing close to each other bare bodied but covering the breast of his fianc e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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