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SUPREME COURT OF INDIA
A.S. BOPANNA, PAMIDIGHANTAM SRI NARASIMHA, JJ.
Apoorva Arora & Anr. Etc. – Appellant
Versus
State (Govt. Of NCT Of Delhi) & Anr. – Respondents
CRIMINAL APPEAL Nos. 1964-1965 of 2024(ARISING OUT OF SLP (CRL.) NO(S). 5463-5464 of 2023, CRIMINAL APPEAL NO(S). /2024 (Arising out of SLP (Crl.) No. 6786 of 2023), CRIMINAL APPEAL NO(S). /2024 (Arising out of SLP (Crl.) No. 532 of 2023), CRIMINAL APPEAL NO(S). /2024 (Arising out of SLP (Crl.) No. 8385-8387 of 2023)
Decided on : 19-03-2024
(A) Indian Penal Code, 1860 – Section 292 – Obscenity – All sex-oriented material and nudity per se are not always obscene – Obscenity must be judged with regard to contemporary mores and national standards – Where art and obscenity are mixed, it must be seen whether artistic, literary or social merit of work overweighs its obscenity and makes obscene content insignificant or trivial – Content cannot be regulated from benchmark of what is appropriate for children as then adult population would be restricted to read and see only what is fit for children – Likewise, regulation of material cannot be as per standard of a hypersensitive man and must be judged as per an “ordinary man of common sense and prudence” – Obscenity must be gauged with respect to “contemporary community standards that reflect sensibilities as well as tolerance levels of an average reasonable person. (Paras 25 and 26)
(B) Information Technology Act, 2000 – Sections 67 and 67A – Criminal Procedure Code, 1973 – Section 482 – Production, transmission, and online publication of obscene and sexually-explicit material – Profanity is not per se obscene – High Court has equated profanities and vulgarity with obscenity, without undertaking proper or detailed analysis into how such language, by itself, could be sexual, lascivious, prurient, or depraving and corrupting – Vulgarity and profanities do not per se amount to obscenity – High Court has taken meaning of language in its literal sense, outside context in which such expletives have been spoken – While literal meaning of terms used may be sexual in nature and they may refer to sexual acts, their usage does not arouse sexual feelings or lust in any viewer of ordinary prudence and common sense – Objectivity with which a judicial mind is expected to examine work in question was completely lost when High Court evidently could not extricate itself from courtroom atmosphere – High Court was not correct in its conclusion that web-series has obscene content and that provisions of Section 67 of IT Act are attracted – There is no allegation of any sexually explicit act or conduct in complaint and as such, Section 67A does not get attracted – No offence of publication or transmission of any material in electronic form which is obscene, lascivious, or appealing to prurient interest, and/or having effect of tending to deprave and corrupt persons, as provided under Section 67 of IT Act, is made out – Equally, no case of publication or transmission of material containing sexually explicit act or conduct, as provided under Section 67A, is made out from bare reading of complaint – Judgment of High Court set aside and FIR quashed. (Paras 35, 37, 38, 43, 46, 48 and 49)
Facts of the case:
Appellants/accused are actors, casting director, script writers, creator of web-series ‘College Romance’ [TVF Media Labs Private Ltd.], and media company that owns YouTube channel on which web-series was hosted [Contagious Online Media Network Pvt. Ltd.]. They are sought to be investigated and prosecuted for production, transmission, and online publication of obscene and sexually-explicit material under Sections 67 and 67A of Information Technology Act, 2000.
Central issue is whether use of expletives and profane language in titles and content of episodes of web-series ‘College Romance’ constitutes an offence of publication and transmission of obscene and sexually explicit content under Sections 67 and 67A of I.T. Act.
Findings of Court:
High Court has not given any reason whatsoever on how Section 67A is attracted to facts of present case. Offence of Section 67A is not at all made out.
Result : Appeals allowed.
JUDGMENT :
PAMIDIGHANTAM SRI NARASIMHA, J.
1. Leave granted.
2. The appellants/accused are the actors, casting director, script writers, creator of the web-series ‘College Romance’1[TVF Media Labs Private Ltd.], and the media company that owns the YouTube channel on which the web-series was hosted2[Contagious Online Media Network Pvt Ltd.]. They are sought to be investigated and prosecuted for production, transmission, and online publication of obscene and sexually-explicit material under Sections 67 and 67A of the Information Technology Act, 2000, 3[‘IT Act’ hereinafter.]. The appellants’ petition under Section 482 of the Code of Criminal Procedure, 19734[‘CrPC’ hereinafter.] for quashing the orders of the Additional Chief Metropolitan Magistrate and Additional Sessions Judge directing registration of FIR against them was dismissed by the High Court by the order impugned before us. 5[In Criminal Miscellaneous Case No. 2399 of 2020, Criminal Miscellaneous Case No. 2215 of 2020 and Criminal Miscellaneous Case No. 2214 of 2020, judgment dated 06.03.2023 (‘Impugned judgment’ hereinafter).] Having considered the matter in detail and for the reasons to follow, we have allowed the appeal, set aside the judgment of the High Court, and quashed the FIR bearing number 403/2023 dated 16.04.2023 at PS Mukherjee Nagar, Delhi against the appellants under Sections 67 and 67A of the IT Act.
3. Facts: The short facts leading to filing of the present appeal are as follows:
3.1 A complaint was filed by respondent no. 2 before the Assistant Commissioner of Police that Season 1, Episode 5 of the web-series, titled ‘Happily F****d Up’, has vulgar and obscene language in its title and various portions of the episode, constituting an offence under Sections 292, 294 and 509 of the Indian Penal Code6[‘IPC’ hereinafter.], Sections 67 and 67A of the IT Act, and Sections 2(c) and 3 of the Indecent Representation of Women (Prohibition) Act, 19867[‘IRWP Act’ hereinafter.]. On 13.03.2019, the complainant filed an application under Section 200 read with Section 156(3) of the CrPC before the ACMM seeking registration of FIR. The Investigating Officer conducted an enquiry and filed an Action Taken Report on 09.04.2019 stating that no cognisable offence is made out and in fact, there is no obscenity in the allegedly offending content.
3.2 However, the ACMM, by order dated 17.09.2019, allowed the complainant’s application and directed the registration of an FIR against the appellants under Sections 292 and 294 of the IPC and Sections 67 and 67A of the IT Act as the vulgar language used is prima facie capable of appealing to prurient interests of the audience and is hence obscene.
3.3 The appellants filed a revision petition before the Additional Sessions Judge, who by order dated 10.11.2020 partially modified the order of the ACMM and directed the registration of FIR only under Sections 67 and 67A of the IT Act by relying on the decision of this Court in Sharat Babu Digumarti v. Government (NCT of Delhi), (2017) 2 SCC 18, 2016 INSC 1131.
3.4 The appellants then filed a petition under Section 482 CrPC before the High Court for quashing the abovementioned orders, which came to be dismissed by the judgment dated 06.03.2023, impugned herein. Against the dismissal and the consequent direction to register FIR under Sections 67 and 67A of the IT Act, the present appeals are filed by all the accused/appellants.
3.5 Pursuant to the directions of the High Court, an FIR was registered under Sections 67 and 67A of the IT Act against the appellants on 16.04.2023.
4. Reasoning of the High Court: The High Court, while dismissing the petition for quashing, held that the object of Sections 67 and 67A of the IT Act is to punish the publication and transmission of obscene and sexually explicit material in the cyber space. It relied on the ‘community standard test’ to determine whether the material is obscene, as laid down by this Court in Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 25
(1) Vulgarity and profanities do not per se amount to obscenity.(2) All sex-oriented material and nudity per se are not always obscene – Obscenity must be judged with regard to contemporary mores and....
It is clear as crystal that S.295 A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult religion or religious beliefs of a class of cit....
Point of law : Movie – Foul language - freedom of speech and expression to every citizen as per Article 19 (1)(a) of the Constitution of India. But the above types of critics will be doing an injusti....
Publications containing obscene elements intended to arouse sexual desire compromise public decency, thus failing the test of obscenity under Section 292 of the IPC.
Abusive language does not constitute obscenity under IPC unless it arouses lascivious thoughts; allegations did not support charges under Sections 294(b) or 509 IPC.
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