6/15/2019
Aveek Sarkar & Anr vs State Of West Bengal And Anr on 3 February, 2014
alternatively under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
9. The Appellants herein preferred Criminal Revision No.1591 of 1994 before the High Court of
Calcutta under Section 482 Cr.P.C. for quashing the proceedings in Case No.C.796 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 IPC.
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 fiancée
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. Further, it was also pointed out that
the learned Magistrate should not have issued summons without application of mind. The High Court,
however, did not appreciate all those contentions and declined to quash the proceedings under Section
483 Cr.P.C., against which this appeal has been preferred.
10. Shri Pradeep Ghosh, learned senior counsel, appearing for the Appellants, submitted that the
publication in question as well as the photograph taken, as a whole and in the background of facts and
circumstances, cannot be said to be per se “obscene” within the meaning of Section 291(1) IPC so as to
remand a trial of the Appellants in respect of the alleged offence under Section 292(1) IPC. The
learned counsel pointed out that obscenity has to be judged in the context of contemporary social
mores, current sociomoral attitude of the community and the prevalent norms of acceptability/
susceptibility of the community, in relation to matters in issue. In support of this contention, reliance
was placed on the Constitution Bench judgment of this Court in Ranjit D. Udeshi v. State of
Maharashtra AIR 1965 SC 881. Reference was also made to the judgment of this Court in Chandrakant
Kalyandas Kakodar v. State of Maharashtra 1969 (2) SCC 687. Few other judgments were also referred
to in support of his contention. Learned senior counsel also pointed out that the learned Magistrate as
well as the High Court have completely overlooked the context in which the photograph was published
and the message it had given to the public at large. Learned senior counsel also pointed out that the
photograph is in no way vulgar or lascivious. Learned senior counsel also pointed out that the Courts
below have not properly appreciated the scope of Section 79 IPC and that the Appellants are justified
in law in publishing the photograph and the article which was borrowed from the German magazine.
Learned senior counsel also pointed out that such a publication was never found to be obscene even by
the State authorities and no FIR was ever lodged against the Appellants and a private complaint of such
a nature should not have been entertained by the learned Magistrate without appreciating the facts as
well as the law on the point. Learned senior counsel pointed out that the High Court ought to have
exercised jurisdiction under Section 482 Cr.P.C.
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 :
https://indiankanoon.org/doc/195958005/
3/7