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SUPREME COURT OF INDIA
K.S. RADHAKRISHNAN & A.K. SIKRI, JJ.
Aveek Sarkar & Another – Appellants
Versus
State of West Bengal & Others – Respondents
Criminal Appeal No. 902 of 2004
Decided On : 03-02-2014
AIR 1965 SC 881; (1969) 2 SCC 687; (1985) 4 SCC 289; (2010) 5 SCC 600; 1961 Crl. Law Review 176; 1868 L.R. 2 Q.B. 360; 354 U.S. 476 (1957); 1962 SCR 681; (1992) 1 SCR 452; (1985) 1 SCR 494 – Relied upon
(b) Indian Penal Code, 1860 – Section 292 – Obscenity – Has to be judged from the point of view of an average person – By applying contemporary community standards. (Para 24)
(c) Indian Penal Code, 1860 – Section 292 – Nude photograph of Boris Baker and semi nude photograph of his fiancée taken by her father – Photograph has no tendency to deprave or corrupt the minds of people – To protest against racial discrimination prevalent in Germany – Supporting inter-racial relationship – Conveying message that colour of skin matters little and love champions over colour – Photograph and article not objectionable so as to initiate proceedings under Section 292 IPC or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986 (Para 27 to 30)
(1996) 4 SCC 1; (2007) 1 SCC 143 – Relied upon
Facts of the case:
1. A German magazine “STERN” published an article with a nude picture of Boris Becker, a world renowned Tennis player, with his dark-skinned fiancée Barbara Feltus, a film actress. 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.
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, as appeared in the Sports World.
4. A complaint was filed 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, and former Captain of Indian Cricket Team, late Mansoor Ali Khan of Pataudi, before the Sub-Divisional Magistrate at Alipore. Complaint stated 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.
5. Complainant also urged that the accused persons should be prosecuted under Section 292 IPC, as also 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.
6. The Appellants herein preferred Criminal Revision before the High Court under Section 482 Cr.P.C. for quashing the proceedings pending before the learned Judicial Magistrate Court, Alipore. The High Court, however, did not appreciate all those contentions and declined to quash the proceedings under Section 482 Cr.P.C.
Finding of the Court:
Impugned Judgment shows non-application of mind.
Judgment :-
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 prim
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