6/15/2019
Aveek Sarkar & Anr vs State Of West Bengal And Anr on 3 February, 2014
Devi became what she did: her rage and vendetta against the society that had heaped
indignities upon her.” [Emphasis Supplied]
26. In Ajay Goswami v. Union of India (2007) 1 SCC 143, while examining the scope of Section 292
IPC and Sections 3, 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986, this
Court 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 fiancée Barbara Fultus, a
darkskinned lady standing close to each other bare bodied but covering the breast of his fiancée with
his hands can be stated to be objectionable in the sense it violates Section 292 IPC. 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 Fultus has been fully covered with the arm of Boris Becker, a photograph, of course,
seminude, 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 has to be viewed in the background in which it was
shown, and the message it has to convey to the public and the world at large. The cover story of the
Magazine carries the title, posing nude, dropping of harassment, battling racism in Germany. Boris
Becker himself in the article published in the German magazine, speaks of the racial discrimination
prevalent in Germany and the article highlights Boris Becker’s protests against racism in Germany.
Boris Becker himself puts it, as quoted in the said article:
“the nude photos were supposed to shock, no doubt about it....... What I am saying with
these photos is that an interracial relationship is okay.”
29. The message, the photograph wants to convey is that the colour of skin matters little and love
champions over colour. Picture promotes love affair, leading to a marriage, between a whiteskinned
man and a black skinned woman.
30. We should, therefore, appreciate the photograph and the article in the light of the message it wants
to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and
marriage between white skinned man and a black skinned woman. When viewed in that angle, we are
not prepared to say that the picture or the article which was reproduced by Sports World and the
Anandabazar Patrika be said to be objectionable so as to initiate proceedings under Section 292 IPC or
under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
31. We have found that no offence has been committed under Section 292 IPC and then the question
whether it falls in the first part of Section 79 IPC has become academic. We are sorry to note that the
learned Magistrate, without proper 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 Cr.P.C. to secure the ends of justice.
32. We are, therefore, inclined to allow this appeal and set aside the criminal proceedings initiated
against the Appellants. The Appeal is allowed as above.
eard Hear……………………………..J.
(K. S. Radhakrishnan) .….………………………...J.
(A.K. Sikri) New Delhi, February 03, 2014.
https://indiankanoon.org/doc/195958005/
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