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Aveek Sarkar & Anr vs State Of West Bengal And Anr on 3 February, 2014
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 SubDivisional 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 prima facie gives a sexual titillation and its impact is moral
degradation and would also encourage the people to commit sexual offences. The accused persons on
5.3.1993 filed an application before the Court for dropping the proceedings stating that there was no
illegality in reproducing in the Sports World as well as in the Anandabazar Patrika of the news item
and photograph appeared in a magazine ‘STERN” published in Germany. Further, it was pointed out
that the said magazine was never banned entry into India and was never considered as ‘obscene’,
especially when Section 79 of Indian Penal Code states that nothing is an offence which is done by any
person who is justified by law, or who by reason of a mistake of fact and not reason of a mistake of law
in good faith, believes himself to be justified by law, in doing it.
7. The Court after seeing the photographs and hearing the arguments on either side, held as follows :
“Moreover, until evidence comes in it will not be proper to give any opinion as to the
responsibility of the accused persons. But I feel it pertinent to mention that though the
Section 292 does not define word ‘obscene’, but my rids of precedents have clustered
round on this point and being satisfied with the materials on record, pernicious effect of
picture in depraving and debauching the mind of the persons into whose hands it may come
and also for other sufficient reasons to proceed further this Court was pleased to issue
process against the accused persons under Section 292 I.P.C. At present having regard to
the facts of the case, I find the matter merits interference by not dropping the proceedings
as prayed for. It is too early to say that the accused persons are entitled to get benefit of
Section 79 I.P.C.”
8. The Magistrate after holding so, held the accused persons to be examined under Section 251 Cr.P.C.
and ordered that they would be put to face the trial for the offence punishable under Section 292 IPC
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