The appellants, comprising the cast, director, and writers of the web series ‘College Romance’ along with the owning media company, faced investigation under the IT Act for alleged distribution of ...
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2024 INSC 223 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). /2024
(ARISING OUT OF SLP (CRL.) NO(S). 5463 -5464/2023
APOORVA ARORA & ANR. ETC. …. APPELLANT(S)
VERSUS
STATE (GOVT. OF NCT OF DELHI) & ANR. …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO(S). /2024
(Arising out of SLP (Crl.) No. 6786/2023
CRIMINAL APPEAL NO(S). /2024
(Arising out of SLP (Crl.) No. 5532/2023
CRIMINAL APPEAL NO(S). /2024
(Arising out of SLP (Crl.) No. 8385-8387/2023
J U D G M E N T
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, and
the media company that owns the YouTube channel on which the
1
TVF Media Labs Private Ltd.
2
web-series was hosted
2. 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. The appellants’ petition
under Section 482 of the Code of Criminal Procedure, 1973
4 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 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
2
Contagious Online Media Network Pvt Ltd.
3
‘IT Act’ hereinafter.
4
‘CrPC’ hereinafter.
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).
3
episode, constituting an offence under Sections 292, 294
and 509 of the Indian Penal Code
6, Sections 67 and 67A of
the IT Act, and Sections 2(c) and 3 of the Indecent
Representation of Women (Prohibition) Act, 1986
7. 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
6
‘IPC’ hereinafter.
7
‘IRWP Act’ hereinafter.
4
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)
8.
3.4 The appellants then filed a petition under Section 482
CrPC before the High Court for quashing the above-
mentioned 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
8
(2017) 2 SCC 18, 2016 INSC 1131.
5
Aveek Sarkar v. State of West Bengal
9 and followed in decisions of
various High Courts
10. By applying this test, the High Court held
as follows: First, applying the standard of a common prudent man,
it found that the episode did not use civil language and there was
excessive use of profanities and vulgar expletives, and a clear
description and reference to sexually explicit acts. The
determination of how the content impacts a common man must be
determined in the Indian context, as per Indian morality, keeping
in mind contemporary standards of civility and morality.
11 In the
allegedly offending portion (in Season 1, episode 5 from 5:24 to
6:40 minutes and 25:28 to 25:46 minutes), the male protagonist
in a conversation with the female protagonist uses terms
describing male and female genitalia and sexual acts, thereby
making them sexually explicit and arousing prurient feelings.
While the female protagonist is heard objecting to the language
and expressing disgust over it, she does so by repeating the same
to the male protagonist. The male protagonist then uses more
vulgar expletives and indecent language, which is repeated by the
9
(2014) 4 SCC 257, 2014 INSC 75.
10
G. Venkateswara Rao v. State of AP in Writ Petition 1420 of 2020; Jaykumar Bhagwanrao Gore v. State of
Maharashtra 2017 SCC OnLine Bom 7283; Pramod Anand Dhumal v. State of Maharashtra 2021 SCC OnLine
Bom 34; Ekta Kapoor v. State of MP 2020 SCC OnLine MP 4581, as cited in paras 23-26 of the impugned
judgment.
11
In para 37 of the impugned judgment, the High Court relied on Samaresh Bose v. Amal Mitra (1985) 4 SCC
289, 1985 INSC 205 where it was held that the regard must be given to contemporary morals and national
standards in judging whether content is obscene.
6
female protagonist in a later part of the episode. The High Court
held that the depiction of a sexually explicit act is not necessarily
through filming but can also be through spoken language. It was
found that the persons who are likely to be affected or persons
whom such content can deprave or corrupt are impressionable
minds in the present case, as there is no disclaimer or warning
that classifies the web-series as being suitable only for persons
who are 18 years or above. The content crossed the threshold of
decency considering its availability to the public, including
children. Further, the Court felt that the episode could not be
heard in the courtroom without shocking or alarming the people
and to maintain the decorum of language.
5. Second, a representation that the language used in the
episode is the one used in the country and by its youth in
educational institutions is not protected under the guarantee of
freedom of speech under Article 19(1)(a). Third, that the online
content curator and the intermediaries are in violation of the
Information Technology (Intermediary Guidelines and Digital
Media Ethics Code) Rules, 2021 as the content has not been
correctly classified as ‘A-rated’ and there is no warning regarding
the use of profanities and expletives. Lastly, the Court took note
7
that vulgar language, profanities, and swear words must be
regulated in the public domain and on social media platforms as
they are a threat to impressionable minds like children of tender
age. Further, a representation that the use of such language in
general parlance is the “new normal” is a distortion of facts as it is
still not spoken in the presence of the elderly, women and children,
or at religious places. To maintain linguistic morality, the sanctity
and reverence of languages must be protected.
6. The High Court also rejected the appellants’ contention that
the mandatory procedure under Section 154(3) of the CrPC, which
is an important procedural safeguard, was not followed before
resort to Section 156(3). The High Court preliminarily negatived
this submission by holding that Section 154(3) only uses the term
“may” and not “shall”, and that the complainant anyways
approached the ACP, Cyber Cell, North District, who is the
authority higher to the SHO.
7. Submissions of the Appellants: We heard Mr. Mukul Rohatgi,
Mr. Harish Salve, Ms. Madhavi Divan, Mr. Sajan Poovayya, Sr.
Advocates. Learned senior counsels for the appellants have argued
that the allegedly offending portions of Season 1, Episode 5 of the
web-series do not meet the threshold for obscenity and that the
8
High Court has erred in characterising the material as obscene.
Further, these portions do not contain any sexually explicit act and
as such no offence under Sections 67 or 67A of the IT Act is made
out. Elaborating their submissions, the appellants’ argued:
7.1 Section 67 of the IT Act, that criminalises the publication
and transmission of obscene material in electronic form,
covers material which is lascivious or appeals to the
prurient interest or if its effect is such as to tend to deprave
and corrupt persons who are likely, having regard to all
relevant circumstances, to read, see or hear the matter
contained or embodied in it. As per Aveek Sarkar (supra),
the determination of whether some material is obscene
must be made by the ‘community standard test’ by
considering the work as a whole and then looking at the
specific material that has been alleged to be obscene in the
context of the whole work. The web-series is a romantic
comedy that traces the life of a group of friends who are in
college. Its intention is to paint a relatable picture of college
life in a cosmopolitan urban setting. There are two specific
portions that have been alleged to be obscene. The first
segment is where the male protagonist, named Bagga,
9
indiscriminately uses expletives that are heard by the
female protagonist, named Naira. Naira objects to the use
of such language and points out that the literal meaning
of the terms is absurd. Bagga states that these terms are
not meant to be taken literally and are a part of common
parlance. Naira reiterates her disapproval and threatens
Bagga with consequences if he continues to speak in such
a manner. Bagga ‘inadvertently’ uses another expletive,
due to which Naira leaves from there. In the second
segment, Naira and Bagga are with a wider group of friends
where Naira is incensed by the statements of another
friend and angrily uses the same expletives as Bagga, at
which Bagga is delighted. Learned senior counsel has
argued that when these scenes are considered individually
and in the context of the web-series as a whole, they are
not obscene. They only portray the absurdity of the literal
meaning of these terms and show their inevitable presence
in common language, including by those who disapprove
of their use.
10
7.2 Relying on Samaresh Bose v. Amal Mitra
12 and Bobby Art
International v. Om Pal Singh Hoon
13, learned senior
counsel has argued that while the alleged portions are
vulgar, vulgarity does not equate to obscenity. Mere words
cannot amount to obscenity unless they involve lascivious
elements that arouse sexual thoughts and feelings, which
is not the effect of the scenes in the present case.
7.3 The effect of the words must be tested from the standard
of an “ordinary man of common sense and prudence”
14,
“reasonable, strong-minded, firm and courageous” person
and not from the perspective of a hypersensitive person or
a weak and vacillating mind
15. The terms used in the
allegedly offending portions do not refer to any sexually
explicit act and are not obscene as per the community
standard test. Therefore, no offence of obscenity is made
out under Section 67 of the IT Act.
7.4 Learned senior counsel has also argued that the scenes do
not contain any sexually explicit act or conduct, as is
required for an offence under Section 67A. Relying on
12
(1985) 4 SCC 289, 1985 INSC 205.
13
(1996) 4 SCC 1, 1996 INSC 595.
14
K.A. Abbas v. Union of India (1970) 2 SCC 780, 1970 INSC 200.
15
Ramesh s/o Chotalal Dalal v. Union of India (1988) 1 SCC 668, 1988 INSC 44.
11
various cases by this Court,
16 they argue that the words in
a penal provision must be strictly interpreted. The term
‘sexually explicit act or conduct’ does not cover
profanities/ expletives/ swear words, even if the literal
meaning of these terms refers to sexual acts. The literal
meaning is not intended through the common usage of
these words. Rather, they are an expression of emotions
such as frustration, rage, and anger.
7.5 Learned senior counsel has also relied on the 50
th Standing
Committee Report on the 2006 Amendment Bill to the IT
Act that introduced the provision, and various High Court
decisions,
17 to argue that the intention of Section 67A is to
criminalise the publication and transmission of
pornographic material that depicts sexual acts or contains
sexually explicit conduct that falls short of actual depiction
of sexual acts. Since the alleged segments in this case only
contain expletives and do not contain any explicit visual or
16
Sakshi v. Union of India, (2004) 5 SCC 518, 2004 INSC 383; Sanjay Dutt v. State through CBI, Bombay (II),
(1994) 5 SCC 410, 1994 INSC 371; Girdhari Lal Gupta v. D.H. Mehta, (1971) 3 SCC 189, 1970 INSC 164; Union
of India v. Rajiv Kumar, (2003) 6 SCC 516, 2003 INSC 320; US Technologies International (P) Ltd. v.
Commissioner of Income Tax, (2023) 8 SCC 24, 2023 INSC 329.
17
Vijesh v. State of Kerala, 2021 SCC OnLine Ker 854; Pramod Anand Dhumal v. State of Maharashtra, (2021)
SCC OnLine Bom 34; Majeesh K. Mathew v. State of Kerala, 2018 SCC OnLine Ker 23374; Ritesh Sidhwani v.
State of U.P., 2021 SCC OnLine All 856; Jaykumar Bhagwanrao Gore v. State of Maharashtra, 2017 SCC OnLine
Bom 7283.
12
verbal depiction of sexual activity, there is no offence
under Section 67A.
7.6 It is of course rightly argued that the right to freedom of
speech under Article 19(1)(a) protects artistic creativity
and expression.
7.7 Lastly, the learned senior counsel has argued that a higher
threshold of tolerance must apply in the present case as
the web-series is a form of “pull media”. In pull media, the
consumer has more choice in deciding whether or not they
wish to view some particular content. Unlike television or
radio, where obscene material may be publicly
broadcasted and there is little to no choice to the users in
terms of what content is made available, the consumption
of pull media over the internet gives the viewer complete
control and decision-making over what they watch.
Therefore, the web-series is only available and accessible
to those persons who wish to view it, and hence a higher
threshold of obscenity must be applied to “pull content”.
8. Submissions of the complainant: We have heard learned
counsel Mr. Arvind Singh, advocate-in-person, who is the
complainant (respondent no. 2). He has argued that the present
13
case is not fit for quashing. The alleged content of the web-series
falls within the purview of Sections 67 and 67A of the IT Act and
also offends Sections 3 and 4 of the Indecent Representation of
Women (Prohibition) Act, 1986, which the High Court has failed to
consider. Relying on the community standard test and the
judgments of this Court in Aveek Sarkar (supra) and Devidas
Ramachandra Tuljapurkar v. State of Maharashtra
18, learned
counsel has argued that the abovementioned portions of the web-
series are obscene and sexually explicit. First, the material appeals
to prurient interest in sex, as determined by the average person
applying contemporary community standards. The titles of the
episodes and the plot revolves around college students engaging in
sexual activity. The content of the episodes also uses sexually
explicit language and expletives, which cannot be termed as the
“new normal”. Second, the material portrays sexual conduct in a
patently offensive way. Third, the material lacks serious literary,
artistic, political or scientific value. Fourth, the material tends to
arouse sexually impure thoughts. Fifth, the material is not in the
larger interest of public good or in the interest of art, literature,
science and therefore, the obscenity is not justified. Learned
18
(2015) 6 SCC 1, 2015 INSC 414.
14
counsel has also pointed out that the material in the present case
is freely available on the internet and is accessible to any person,
including children and hence must be regulated in the interests of
public order, morality, and decency.
9. Analysis: The central issue is whether the use of expletives
and profane language in the titles and content of the episodes of
the web-series ‘College Romance’ constitutes an offence of
publication and transmission of obscene and sexually explicit
content under Sections 67 and 67A of the IT Act. We will examine
each of these provisions in the context of ‘obscenity’ for the
purpose of Section 67 and ‘sexually explicit material’ for the
purpose of Section 67A.
A. Whether the material is ‘obscene’:
10. We will first deal with the contention that the material is
obscene. Section 67 of the IT Act is as follows:
“67. Punishment for publishing or transmitting obscene
material in electronic form.–Whoever publishes or transmits or
causes to be published or transmitted in the electronic form, any
material which is lascivious or appeals to the prurient interest or if its
effect is such as to tend to deprave and corrupt persons who are
likely, having regard to all relevant circumstances, to read, see or
hear the matter contained or embodied in it, shall be punished on first
conviction with imprisonment of either description for a term which
may extend to three years and with fine which may extend to five
lakh rupees and in the event of second or subsequent conviction with
imprisonment of either description for a term which may extend to five
years and also with fine which may extend to ten lakh rupees.”
15
11. This Court has laid down the meaning, test, standard, and
method for determining whether some material is obscene in the
context of Section 292 of the IPC.
12. Section 292 defines ‘obscene’ as a book, pamphlet, paper,
writing, drawing, painting, representation, figure or any other
object that is lascivious, appeals to the prurient interest, or has
such effect, if taken as a whole, that tends to deprave and corrupt
persons who are likely to read, see or hear the matter contained in
it. The provision criminalises the sale, distribution, public
exhibition, circulation, import, export, etc of obscene material. The
provision excludes such material when the publication is justified
as being for public good on the ground that it is in the interest of
science, art, literature, or learning or other objects of general
concern; such material is kept or used for bona fide religious
purposes; it is sculptured, engraved, painted or represented on or
in ancient monuments and temples. The relevant portion of
Section 292 has been extracted for reference:
“292. Sale, etc., of obscene books, etc.—(1) For the purposes of
sub-section (2), a book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, shall be deemed to be
obscene if it is lascivious or appeals to the prurient interest or if its
effect, or (where it comprises two or more distinct items) the effect of
any one of its items, is, if taken as a whole, such as to tend to deprave
and corrupt persons, who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied
in it.”
16
It is evident that “obscenity” has been similarly defined in Section
292 and Section 67 as material which is:
i. lascivious; or
ii. appeals to the prurient interest; or
iii. its effect tends to deprave and corrupt persons who are
likely, having regard to all relevant circumstances, to read,
see or hear the matter contained or embodied in it.
However, the difference between them is only that Section 67 is a
special provision that applies when the obscene material is
published or transmitted in the electronic form.
19 Since the alleged
offending material is a web-series, the case must be considered
under Section 67 of the IT Act
20 but the same test for obscenity as
laid down under Section 292 will apply since the provisions are
similarly worded in that respect. In this context we will examine
how obscenity is understood.
13. Recounting the development through judicial precedents: This
Court upheld the constitutional validity of Section 292 as a
reasonable restriction on free speech and applied the Hicklin test
21
to determine whether the book ‘Lady Chatterley’s Lover’ was
19
Sharat Babu Digumarti (supra).
20
ibid.
21
(1868) LR 3 QB 360.
17
obscene in the decision of Ranjit D. Udeshi v. State of
Maharashtra.
22 As per the Hicklin test, a material is obscene if it
has the tendency to deprave and corrupt the minds of those who
are open to such immoral influences and into whose hands the
publication is likely to fall:
23
“… I think the test of obscenity is this, whether the tendency of the
matter charged as obscenity is to deprave and corrupt those whose
minds are open to such immoral influences, and into whose hands a
publication of this sort may fall … it is quite certain that it would
suggest to the minds of the young of either sex, or even to persons of
more advanced years, thoughts of a most impure and libidinous
character.”
14. This test lays emphasis on the potentiality of the material to
deprave and corrupt by immoral influences.
24 To determine this,
the Court must apply itself to consider each work at a time. It must
take an overall view of the obscene matter in the setting of the
whole work but also consider the obscene matter by itself and
separately to find out whether it is so grossly obscene and it is
likely to deprave and corrupt. A mere stray word or insignificant
passage would not suffice to qualify the material as obscene.
25 The
Court also clarified that sex and nudity in art and literature cannot
in and of themselves be regarded as evidence of obscenity without
22
AIR 1965 SC 881, 1964 INSC 171.
23
ibid, para 14.
24
ibid, para 19.
25
ibid, 20, 21.
18
something more.
26 Sex must be treated in manner that is offensive
to public decency and morality, when judged by our national
standards, and must be likely to pander to lascivious, prurient,
sexually precocious minds, and appeal to or have the tendency to
appeal to the “carnal side of human nature” for it to be obscene.
27
15. The Court also emphasised its role in maintaining a delicate
balance between protecting freedom of speech and artistic freedom
on the one hand, and public decency and morality on the other. It
held that when art and obscenity are mixed, the art must be so
preponderating that the obscenity is pushed into the shadows or
is trivial and insignificant and can be overlooked.
28 Similarly, if the
matter has a preponderating social purpose and gain that
overweighs the obscenity of the content (such as medical
textbooks), then such material is constitutionally protected by
freedom of speech and cannot be criminalised as obscene.
29
16. The Court followed the Hicklin test and Ranjit Udeshi (supra)
in Shri Chandrakant Kalyandas Kakodkar v. State of
Maharashtra
30 but it also introduced certain caveats and refined
the test to some extent. Considering the material in that case, a
26
ibid, para 16.
27
ibid, paras 21 and 22.
28
ibid, para 21.
29
ibid, paras 9, 22, and 29.
30
(1969) 2 SCC 687, 1969 INSC 202.
19
Marathi short story Shama, the Court held that the story read as
a whole does not amount to pornography or pander to the prurient
interest. Even if the work is not of high literary quality and is
immature and of bad taste, there was nothing that could deprave
or corrupt those in whose hands it is likely to fall, including
adolescents.
31 The Court also cautioned that the standard for the
artist or the writer is not that the adolescent mind must not be
brought in contact with sex or that the work must be expunged of
all references to sex, irrespective of whether it is the dominant
theme.
32 The test for obscenity was stated as: “What we have to
see is that whether a class, not an isolated case, into whose hands
the book, article or story falls suffer in their moral outlook or become
depraved by reading it or might have impure and lecherous thoughts
aroused in their minds.”
33
17. In KA Abbas v. Union of India
34 the Court summarised the
test and process to determine obscenity as follows:
“(1) Treating with sex and nudity in art and literature cannot be
regarded as evidence of obscenity without something more.
(2) Comparison of one book with another to find the extent of
permissible action is not necessary.
31
ibid, paras 9 and 10.
32
ibid, para 12.
33
ibid, para 12.
34
(1970) 2 SCC 780, para 48.
20
(3) The delicate task of deciding what is artistic and what is obscene
has to be performed by courts and in the last resort, by the Supreme
Court and so, oral evidence of men of literature or others on the
question of obscenity is not relevant.
(4) An overall view of the obscene matter in the setting of the whole
work would of course be necessary but the obscene matter must be
considered by itself and separately to find out whether it is so gross
and its obscenity is so decided that it is likely to deprave or corrupt
those whose minds are open to influence of this sort and into whose
hands the book is likely to fall.
(5) The interests of contemporary society and particularly the
influence of the book, etc., on it must not be overlooked.
(6) Where obscenity and art are mixed, art must be so preponderating
as to throw obscenity into shadow or render the obscenity so trivial
and insignificant that it can have no effect and can be overlooked.
(7) Treating with sex in a manner offensive to public decency or
morality which are the words of our Fundamental Law judged by our
national standards and considered likely to pender to lescivious,
pourlent or sexually precocious minds must determine the result.
(8) When there is propagation of ideas, opinions and informations or
public interests or profits, the interests of society may tilt the scales
in favour of free speech and expression. Thus books on medical
science with intimate illustrations and photographs though in a sense
immodest, are not to be considered obscene, b ut the same
illustrations and photographs collected in a book form without the
medical text would certainly be considered to be obscene.
(9) Obscenity without a preponderating social purpose or profit cannot
have the constitutional protection of free speech or expression.
Obscenity is treating with sex in a manner appealing to the carnal
side of human nature or having that tendency. Such a treating with
sex is offensive to modesty and decency.
(10) Knowledge is not a part of the guilty act. The offender's
knowledge of the obscenity of the book is not required under the law
and it is a case of strict liability.”
18. In Samaresh Bose (supra), which has been relied on by the
appellants, this Court differentiated vulgarity from obscenity. The
material in question in this case was a Bengali novel titled
21
‘Prajapati’. The Court noted that while slang and unconventional
words had been used in the book along with suggestions of sexual
acts, there was no description of any overt act of sex. The words
are vulgar and create a feeling of disgust and revulsion and may
shock the reader but this does not necessarily amount to
obscenity, which is the tendency to deprave and corrupt.
35 It held
that the use of slang and unconventional words; an emphasis on
sex; a description of female bodies; and narrations of feelings,
thoughts and actions in vulgar language in the novel do not render
the material obscene.
36 Further, a mere reference to sex is
insufficient for obscenity and does not make a material unsuitable
for adolescents.
37
19. The Court also summarised the process that must be followed
to objectively assess whether some material is obscene. It held that
the judge must first place himself in the position of the author to
understand his perspective and what he seeks to convey and
whether it has any literary or artistic value. The judge must then
place himself in the position of a reader of every age group in whose
hands the book (or material) is likely to fall and determine the
35
Samaresh Bose (supra), para 35.
36
ibid, para 35.
37
ibid, para 35.
22
possible effect or influence of the material on the minds of such
persons. The relevant portion reads:
“29. …As laid down in both the decisions of this Court earlier referred
to, “the question whether a particular article or story or book is
obscene or not does not altogether depend on oral evidence, because
it is the duty of the court to ascertain whether the book or story or any
passage or passages therein offend the provisions of Section 292
IPC”. In deciding the question of obscenity of any book, story or article
the court whose responsibility it is to adjudge the question may, if the
court considers it necessary, rely to an extent on evidence and views
of leading literary personage, if available, for its own appreciation
and assessment and for satisfaction of its own conscience. The
decision of the court must necessarily be on an objective assessment
of the book or story or article as a whole and with particular reference
to the passages complained of in the book, story or article. The court
must take an overall view of the matter complained of as obscene in
the setting of the whole work, but the matter charged as obscene must
also be considered by itself and separately to find out whether it is
so gross and its obscenity so pronounced that it is likely to deprave
and corrupt those whose minds are open to influence of this sort and
into whose hands the book is likely to fall. Though the court must
consider the question objectively with an open mind, yet in the matter
of objective assessment the subjective attitude of the Judge hearing
the matter is likely to influence, even though unconsciously, his mind
and his decision on the question. A Judge with a puritan and prudish
outlook may on the basis of an objective assessment of any book or
story or article, consider the same to be obscene. It is possible that
another Judge with a different kind of outlook may not consider the
same book to be obscene on his objective assessment of the very
same book. The concept of obscenity is moulded to a very great extent
by the social outlook of the people who are generally expected to read
the book. It is beyond dispute that the concept of obscenity usually
differs from country to country depending on the standards of
morality of contemporary society in different countries. In our opinion,
in judging the question of obscenity, the Judge in the first place
should try to place himself in the position of the author and from the
viewpoint of the author the Judge should try to understand what is it
that the author seeks to convey and whether what the author conveys
has any literary and artistic value. The Judge should thereafter place
himself in the position of a reader of every age group in whose hands
the book is likely to fall and should try to appreciate what kind of
possible influence the book is likely to have in the minds of the
readers. A Judge should thereafter apply his j udicial mind
dispassionately to decide whether the book in question can be said
to be obscene within the meaning of Section 292 IPC by an objective
assessment of the book as a whole and also of the passages
23
complained of as obscene separately. In appropriate cases, the court,
for eliminating any subjective element or personal preference which
may remain hidden in the subconscious mind and may unconsciously
affect a proper objective assessment, may draw upon the evidence on
record and also consider the views expressed by reputed or
recognised authors of literature on such questions if there be any for
his own consideration and satisfaction to enable the court to
discharge the duty of making a proper assessment.”
20. The Court then applied this test to the novel in question. By
placing themselves in the position of the author and judging the
work from his perspective, the Court found that his intention was
to expose social evils and ills, for which the author has used his
own technique. Similarly, the Court placed itself in the position of
the readers who are likely to read the book. It held that the book
was likely to be read by readers of “both sexes and all ages between
teenagers and the aged” and found that while it may create a sense
of shock and disgust, no reader would be depraved, debased, or
encouraged to lasciviousness by reading the book.
38
21. In Bobby Art International (supra) the question before the
Court was whether certain scenes from the film ‘Bandit Queen’
that depicted rape and nudity were obscene. Here, obscenity was
not considered under Section 292 but under the 1991 Guidelines
for Censor Board certification under the Cinematograph Act,
1952.
39 The Court did not cite or follow the Hicklin test as laid down
38
ibid.
39
The relevant guidelines, as extracted in Bobby Art International (supra), are as follows:
“15. The guidelines earlier issued were revised in 1991. Clause (1) thereof reads thus:
24
in Ranjit Udeshi (supra) and Chandrakant Kalyandas (supra).
Instead, it relied on the Guidelines and laid down the test for
obscenity as follows:
“22. The guidelines aforementioned have been carefully drawn. They
require the authorities concerned with film certification to be
responsive to the values and standards of society and take note of
social change. They are required to ensure that “artistic expression
and creative freedom are not unduly curbed”. The film must be
“judged in its entirety from the point of view of its overall impact”. It
must also be judged in the light of the period depicted and the
contemporary standards of the people to whom it relates, but it must
not deprave the morality of the audience. Clause 2 requires that
human sensibilities are not offended by vulgarity, obscenity or
depravity, that scenes degrading or denigrating women are not
presented and scenes of sexual violence against women are avoided,
but if such scenes are germane to the theme, they be reduced to a
minimum and not particularised.”
22. The Court first considered the plot and theme of the film as a
whole and then considered the individual scenes of nudity and
“1. The objectives of film certification will be to ensure that—
(a) the medium of film remains responsible and sensitive to the values and standards of society;
(b) artistic expression and creative freedom are not unduly curbed;
(c) certification is responsive to social change;
(d) the medium of film provides clean and healthy entertainment; and
(e) as far as possible, the film is of aesthetic value and cinematically of a good standard.”
Clause (2) states that the Board of Film Censors shall ensure that—
“2. (vii) human sensibilities are not offended by vulgarity, obscenity or depravity;
***
(ix) scenes degrading or denigrating women in any manner are not presented;
(x) scenes involving sexual violence against women like attempt to rape, rape or any form of
molestation or scenes of a similar nature are avoided, and if any such incident is germane to
the theme, they shall be reduced to the minimum and no details are shown;
***”
Clause (3) reads thus:
“3. The Board of Film Certification shall also ensure that the film—
(i) is judged in its entirety from the point of view of the overall impact; and
(ii) is examined in the light of the period depicted in the film and the contemporary standards
of the country and the people to which the film relates, provided that the film does not deprave
the morality of the audience.”
25
rape. Judging the work as a whole and the alleged offending
material specifically, the Court held that the scenes are likely to
evoke tears, pity, horror, and shame. Only a perverted mind might
be aroused in such a situation, and the purpose of censorship is
not to protect the pervert or assuage the susceptibilities of the
over-sensitive.
40 Further, the use of swear words and expletives
that are heard everyday was also held to be harmless.
41 The Court
rather emphasised the overarching social purpose and message of
the film – to condemn rape and violence against women by showing
the trauma and emotional turmoil of a victim of rape and to evoke
sympathy for her and disgust for the rapist.
42 Thus, the material
was held as not being obscene.
23. Similarly, in Director General, Directorate General of
Doordarshan v. Anand Patwardhan
43, the Court applied the test of
‘contemporary community standards’ to determine whether a
documentary is obscene for the purpose of certification and
telecast on Doordarshan. A three-prong test for obscenity was
formulated as follows:
40
ibid, paras 27 and 28.
41
ibid, para 29.
42
ibid, paras 28, 31, 33.
43
(2006) 8 SCC 433, 2006 INSC 558.
26
“(a) whether “the average person, applying contemporary community
standards” would find that the work, taken as a whole, appeals to
the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.”
44
24. The Court relied on Ramesh v. Union of India,
45 where it was
held that the effect of the words must be judged from the standards
of a reasonable, strong-minded, firm and courageous person, and
not from the perspective of weak and vacillating minds or those
who sense danger in every hostile point of view.
46 Considering the
documentary as a whole to determine its message, which cannot
be conveyed by watching only certain bits, it was held that the film
portrays social evils and does not seek to cater to the prurient
interests of any person.
47
25. The law on determining obscenity has been summarised and
reiterated in Ajay Goswami v. Union of India
48 where the Court
cited both Indian precedent and American jurisprudence. The
principles that can be culled out from the judgment are as follows:
44
ibid, para 32.
45
(1988) 1 SCC 668, 1988 INSC 44.
46
Directorate General of Doordarshan (supra), para 37.
47
ibid, para 38.
48
(2007) 1 SCC 143, 2006 INSC 995.
27
i. Obscenity must be judged with regard to contemporary
mores and national standards.
49
ii. The work must be judged as a whole and the alleged
offending material must also be separately examined to
judge whether they are so grossly obscene that they are
likely to deprave and corrupt the reader or viewer.
50 There
must be a clear and present danger that has proximate
and direct nexus with the material.
51
iii. All sex-oriented material and nudity per se are not always
obscene.
52
iv. The effect of the work must be judged from the standard of
an average adult human being .
53 Content cannot be
regulated from the benchmark of what is appropriate for
children as then the adult population would be restricted
to read and see only what is fit for children.
54 Likewise,
regulation of material cannot be as per the standard of a
hypersensitive man and must be judged as per an
“ordinary man of common sense and prudence”.
55
49
ibid, para 67.
50
ibid, para 68.
51
ibid, para 70.
52
ibid, paras 7 and 61.
53
ibid, para 7.
54
ibid, para 62.
55
ibid, para 71.
28
v. Where art and obscenity are mixed, it must be seen
whether the artistic, literary or social merit of the work
overweighs its obscenity and makes the obscene content
insignificant or trivial. In other words, there must be a
preponderating social purpose or profit for the work to be
constitutionally protected as free speech. Similarly, a
different approach may have to be used when the material
propagates ideas, opinions, and information of public
interest as then the interest of society will tilt the balance
in favour of protecting the freedom of speech (for example,
with medical textbooks).
56
vi. The Court must perform the task of balancing what is
artistic and what is obscene. To perform this delicate
exercise, it can rely on the evidence of men of literature,
reputed and recognised authors to assess whether there is
obscenity.
57
26. In S. Khushboo v. Kanniammal,
58 the issue pertained to
quashing of FIR filed against the appellant, inter alia under Section
292 of the IPC, for an interview in a magazine where she called for
56
ibid, para 66.
57
ibid, para 69.
58
(2010) 5 SCC 600, 2010 INSC 247.
29
the social acceptance of premarital sex, especially in live-in
relationships, and cautioned women to take adequate protection
to prevent unwanted pregnancies and sexually transmitted
infections. The Court held that no offence was made out under
Section 292 as the content is not lascivious (i.e., expressing or
causing sexual desire); does not appeal to the prurient interest
(i.e., excessive interest in sexual matters); and does not have the
effect of tending to deprave and corrupt persons who are likely to
read, hear, or see the material.
59 It was reiterated that mere
reference to sex does not make the material obscene without
examining the context of such reference.
60 The Court held that
obscenity must be gauged with respect to “ contemporary
community standards that reflect the sensibilities as well as the
tolerance levels of an average reasonable person.”
61 In this case,
the appellant had not described any sexual act or said anything
that arouses sexual desire in the mind of a reasonable and prudent
reader to make the content obscene.
62 Hence the FIR was quashed
by this Court.
59
ibid, para 24.
60
ibid, para 25.
61
ibid, para 27.
62
ibid, para 28.
30
27. A Division Bench of this Court in Aveek Sarkar (supra) also
quashed an FIR under Section 292 against the magazine cover of
Sports World and Anandbazar Patrika that carried the image of
Boris Becker, a tennis player, posing nude with his fiancée, who
are an interracial couple. The Court held that while judging a
photograph, article or book to be obscene, “regard must be had to
the contemporary mores and national standards and not the
standard of a group of susceptible or sensitive persons”.
63 The Court
held that the Hicklin test must not be applied as it “judged for
obscenity based on isolated passages of a work considered out of
context and judged by their apparent influence on most susceptible
readers, such as children or weak-minded adults.”
64 Even in the
United States, where the test was first formulated, the courts no
longer apply the Hicklin test and instead apply the test formulated
in Roth v. United States
65 where the US Supreme Court held that
sex-related material is obscene only when it has the tendency of
exciting lustful thoughts when judged from the perspective of an
average person by applying the community standards test.
Similarly, in Canada, the dominant test is th e ‘community
63
Aveek Sarkar (supra), para 18.
64
ibid, para 20.
65
354 US 476 (1957).
31
standards problem test’ as per which a work qualifies as obscene
when the exploitation of sex is its dominant characteristic and
such exploitation is undue.
66 Taking note of these jurisprudential
developments, the Court in Aveek Sarkar markedly moved away
from the Hicklin test to the “community standard test” where the
material is considered as a whole to determine whether the specific
portions have the tendency to deprave and corrupt.
67
28. Applying this test, it was held that a picture of a nude/semi-
nude woman is not per se obscene unless it arouses sexual desire
or overtly reveals sexual desire or has the tendency of exciting
lustful thoughts.
68 In the present case, the posture and the
background of the woman posing with her fiancée, whose
photograph was taken by her father, does not have the tendency
to deprave or corrupt those in whose hands the magazine would
fall when considered in light of the broader social message of the
picture against apartheid, racism, and to promote love and
marriage across race.
69 We may note that this Court followed the
community standards test in Devidas Ramachandra Tuljapurkar
(supra).
66
R v. Butler, (1992) 1 SCR 452 (Can SC) as cited in Aveek Sarkar (supra), para 22.
67
Aveek Sarkar (supra), para 23.
68
ibid, para 23.
69
ibid, paras 27 and 28.
32
29. Lastly, in N. Radhakrishnan v. Union of India,
70 it was again
held that the Court must not be guided by the sensitivity of a
pervert viewer and the setting of the whole work, its purpose, and
the constituent elements of the character must be kept in mind
while judging for obscenity.
71
30. Application of the principles in the above-referred precedents
to the facts of the present case: The purpose of elaborately tracing
the precedents on Section 292 is to identify the essential content
of the offence of obscenity, the test and the standard by which the
allegedly offending material must be judged, and the oral and
documentary evidences and the process that the court must rely
on and follow for arriving at its conclusion.
31. For applying the test for obscenity to the allegedly offending
portions of the web-series, it is important to take note of the
approach adopted by the High Court.
32. The High Court purportedly applied the community standard
test as laid down in Aveek Sarkar (supra) to arrive at its
conclusion.
72 It correctly states the position of law that to
determine whether certain content is obscene, the standard of
70
(2018) 9 SCC 725, 2018 INSC 784.
71
ibid, para 33.
72
Impugned judgment, paras 21 and 22.
33
determination is that of an ordinary common person and not a
hypersensitive person.
73
33. Wrong question, wrong answer: However, the High Court has
incorrectly framed the question for inquiry. The issue framed by
the High Court is whether the language employed in the episode is
contemporarily used by the youth and whether it meets the
threshold of decency. The High Court has framed the question for
inquiry in the following terms:
“29. As stated above, this Court had watched a few episodes of the
web series “College Romance” and the episode in question to decide
the case more effectively and fairly. The intent behind watching the
said web series was to analyze fairly as to whether the contention
raised on behalf of the petitioners that the language used in the web
series is “in language”, or is “language used by new generation in
colleges”, or “the students in law colleges and the younger generation
in colleges uses this language only”, is without merit or not.
30. This Court also wanted to test/examine the test of a common
prudent man in practicality, acting itself as a common prudent
person, so as to check as to whether such language, in fact, can be
heard by a common prudent man without being embarrassed or
finding it against decency or against the concept of decency…”
(emphasis supplied)
34. From a plain reading of Section 67 and the material that is
characterised as ‘obscene’ therein, it is clear that the High Court
posed the wrong question, and it has naturally arrived at a wrong
answer. At the outset, the enquiry under Section 292 of the IPC or
under Section 67 of the IT Act does not hinge on whether the
73
ibid, para 28.
34
language or words are decent, or whether they are commonly used
in the country. Rather, from the plain language of the provision,
the inquiry is to determine whether the content is lascivious,
appeals to prurient interests, or tends to deprave and corrupt the
minds of those in whose hands it is likely to fall.
74 The High Court
embarked on a wrong journey and arrived at the wrong
destination.
35. Profanity is not per se obscene: The second threshold error is
in the finding of the High Court that the language is full of swear
words, profanities, and vulgar expletives that could not be heard
in open court and also that it is not the language of the youth.
Based on this finding, the High Court has held that the content is
obscene as it “will affect and will tend to deprave and corrupt
impressionable minds”. In its own words, the High Court held:
“30. …this Court found that the actors/protagonists in the web series
are not using the language used in our country i.e. civil language. The
Court not only found excessive use of “swear words”, “profane
language” and “vulgar expletives” being used, it rather found that the
web series had a series of such words in one sentence with few Hindi
sentences here and there. In the episode in question, there is clear
description and reference to a sexually explicit act. The Court had to
watch the episodes with the aid of earphones, in the chamber, as the
profanity of language used was of the extent that it could not have
been heard without shocking or alarming the people around and
keeping in mind the decorum of language which is maintained by a
common prudent man whether in professional or public domain or
even with family members at home. Most certainly, this Court notes
that this is not the language that nation’s youth or otherwise citizens
74
Section 67, IT Act; Ranjit Udeshi (supra).
35
of this country use, and this language cannot be called the frequently
spoken language used in our country.
36. When the entire content of the series is seen in the light of above,
it would lead any common person to a conclusion that the language
used in the web series is foul, indecent and profane to the extent that
it will affect and will tend to deprave and corrupt impressionable
minds. Therefore, on the basis of this finding it can be held that the
content of the web series will certainly attract the criminality as
envisaged under Section 67 of the Information Technology Act.”
(emphasis supplied)
The specific material which the High Court found to be obscene,
i.e., that which tends to deprave and corrupt impressionable
minds, was “foul, indecent and profane” language. Nothing more.
The High Court has equated profanities and vulgarity with
obscenity, without undertaking a proper or detailed analysis into
how such language, by itself, could be sexual, lascivious, prurient,
or depraving and corrupting. It is well-established from the
precedents cited that vulgarity and profanities do not per se
amount to obscenity.
75 While a person may find vulgar and
expletive-filled language to be distasteful, unpalatable, uncivil, and
improper, that by itself is not sufficient to be ‘obscene’. Obscenity
relates to material that arouses sexual and lustful thoughts, which
is not at all the effect of the abusive language or profanities that
have been employed in the episode. Rather, such language may
75
Samaresh Bose (supra), para 35; Bobby Art International (supra), para 29; NS Madhanagopal v. K. Lalitha,
2022 SCC OnLine SC 2030, 2022 INSC 1323.
36
evoke disgust, revulsion, or shock.
76 The reality of the High Court’s
finding is that once it found the language to be profane and vulgar,
it has in fact moved away from the requirements of obscenity under
Section 67 of the IT Act. The High Court failed to notice the
inherent contradiction in its conclusions.
36. No objective consideration: Third, the High Court has erred in
the legal approach followed by it while assessing whether the
material is obscene. In Samaresh Bose (supra), this Court has laid
down, in great depth and detail, the process and method that must
be followed to objectively judge whether the material is obscene.
77
The court must consider the work as a whole and then the specific
portions that have been alleged to be obscene in the context of the
whole work to arrive at its conclusion.
78 Further, the court must
first step into the position of the creator to understand what he
intends to convey from the work and whether it has any literary or
artistic value. It must then step into the position of the reader or
viewer who is likely to consume the work and appreciate the
possible influence on the minds of such reader.
79 However, the
76
Samaresh Bose (supra), para 35.
77
Samaresh Bose (supra), para 29.
78
ibid; Ranjit Udeshi (supra), paras 20 and 21.
79
Samaresh Bose (supra), para 29.
37
High Court has not followed this judicial process before arriving at
its conclusion, which is as follows:
“43. Coming back to case at hand, the specific complaint of petitioner
is that in Episode 05 of Season 01, airtime starting from 5 minutes
and 24 seconds onwards upto 6 minutes and 40 seconds as well as
from 25 minutes and 28 seconds upto 25 minutes and 46 seconds,
the language of male and female protagonist is full of obscenity,
vulgar words and expletives, without there being any warning or filter
imposing restriction of age of viewers to whom the content should be
visible. The language used in Episode 05 of Season 01 was heard by
this Court, and the level of obscenity of the language and sentences
used was such that this Court cannot reproduce it in the judgment
itself for the purpose of adjudication. The language used in the web
series at the abovementioned time referred to a sexually explicit act
in spoken language. It is not just an expletive, but is profane and
vulgar language being used referring to a sexually explicit act which
certainly cannot be termed common or commonly accepted language.
Rather the female protagonist in the series itself is heard objecting to
the male protagonist and expressing her disgust over use of this
language by repeating the same language herself to the male
protagonist. In answer to that, the male protagonist further uses more
vulgar expletives and indecent language which is bound to disgust a
normal prudent man, if heard in public. Later in the said episode, the
female protagonist uses the same obscene, sexually explicit language
to others and the male protagonist is seen enjoying and appreciating
her conduct. The male protagonist uses words describing male and
female genitalia and sexual act, thus by words, painting pictures of
sexually explicit act which brings it under ambit of arousing prurient
feelings by so doing. There’s no escape from the same by saying that
the said act was not done, shown or filmed. Depiction does not
connote filming alone but conveying by a medium, which in this case
is spoken language. Therefore, the content as discussed above will
attract the criminality as laid down under Section 67 as well as 67A
of IT Act.”
(emphasis supplied)
37. It is evident from the above passages that the High Court has
taken the meaning of the language in its literal sense, outside the
context in which such expletives have been spoken. While the
literal meaning of the terms used may be sexual in nature and they
38
may refer to sexual acts, their usage does not arouse sexual
feelings or lust in any viewer of ordinary prudence and common
sense. Rather, the common usage of these words is reflective of
emotions of anger, rage, frustration, grief, or perhaps excitement.
By taking the literal meaning of these words, the High Court failed
to consider the specific material (profane language) in the context
of the larger web-series and by the standard of an “ordinary man
of common sense and prudence”. When we notice the use of such
language in the context of the plot and theme of the web-series,
which is a light-hearted show on the college lives of young
students, it is clear that the use of these terms is not related to sex
and does not have any sexual connotation. Neither did the creator
of the web-series intend for the language to be taken in its literal
sense nor is that the impact on a reasonable viewer who will watch
the material. Therefore, there is a clear error in the legal approach
adopted by the High Court in analysing and examining the
material to determine obscenity.
38. Furthermore, the objectivity with which a judicial mind is
expected to examine the work in question was completely lost
when the High Court evidently could not extricate itself from the
39
courtroom atmosphere. The sensitivity and discomfort of the High
Court is evident when it held:
“29. …The Court had to watch the episodes with the aid of earphones,
in the chamber, as the profanity of language used was of the extent
that it could not have been heard without shocking or alarming the
people around and keeping in mind the decorum of language which
is maintained by a common prudent man whether in professional or
public domain or even with family members at home…”
39. Application of wrong standard: The last issue is that of the
standard or perspective used by the High Court to determine
obscenity. It is well-settled that the standard for determination
cannot be an adolescent’s or child’s mind, or a hypersensitive
person who is susceptible to such influences.
80 However, the High
Court has incorrectly used the standard of “impressionable minds”
to gauge the effect of the material and has therefore erred in
applying the test for obscenity correctly.
81
40. The High Court has made several remarks on the need to
maintain linguistic purity, civility, and morality by retaining the
purity of language and deprecating the representation of
expletives-filled language as the “new normal”. The real test is to
examine if the language is in anyway obscene under Section 67 of
80
Chandrakant Kalyandas (supra), para 12; Samaresh Bose (supra), para 35; Ajay Goswami (supra); Aveek Sarkar
(supra), para 20.
81
Impugned judgment, paras 35, 36 and 74.
40
the IT Act. The approach adopted by the High Court, as explained
earlier, is based on irrelevant considerations.
41. Similarly, the metric to assess obscenity and legality of any
content cannot be that it must be appropriate to play in the
courtroom while maintaining the court’s decorum and integrity.
Such an approach unduly curtails the freedom of expression that
can be exercised and compels the maker of the content to meet the
requirements of judicial propriety, formality, and official language.
Here again, the High Court committed a serious error in decision-
making.
42. The High Court has also expressed concern and anxiety
about the free availability of the web-series on the internet to the
youth and that it was not classified as being restricted to those
above the age of 18 years. While such anxiety is not misplaced, the
availability of content that contains profanities and swear words
cannot be regulated by criminalising it as obscene. Apart from
being a non-sequitur, it is a disproportionate and excessive
measure that violates freedom of speech, expression, and artistic
creativity.
43. For the reasons stated above, we are of the opinion that the
High Court was not correct in its conclusion that the web-series
41
has obscene content and that therefore the provisions of Section
67 of the IT Act are attracted.
B. Whether the material is ‘sexually explicit’ for the
purpose of Section 67A:
44. Section 67A of the IT Act criminalises the publication and
transmission of sexually explicit content. The provision is as
follows:
“67A. Punishment for publishing or transmitting of material
containing sexually explicit act, etc., in electronic form .–
Whoever publishes or transmits or causes to be published or
transmitted in the electronic form any material which contains
sexually explicit act or conduct shall be punished on first conviction
with imprisonment of either description for a term which may extend
to five years and with fine which may extend to ten lakh rupees and
in the event of second or subsequent conviction with imprisonment
of either description for a term which may extend to seven years and
also with fine which may extend to ten lakh rupees.”
45. The High Court has not given any reason whatsoever on how
Section 67A is attracted to the facts of the present case. In our
opinion, the offence of Section 67A is not at all made out.
46. The facts of the present case certainly do not attract
Section 67A as the complainant’s grievance is about excessive
usage of vulgar expletives, swear words, and profanities. There is
no allegation of any ‘sexually explicit act or conduct’ in the
complaint and as such, Section 67A does not get attracted.
47. Section 67A criminalises publication, transmission, causing
to publish or transmit – in electronic form – any material that
42
contains sexually explicit act or conduct. Though the three
expressions “explicit”, “act”, and “conduct” are open-textured and
are capable of encompassing wide meaning, the phrase may have
to be seen in the context of ‘obscenity’ as provided in Section 67.
Thus, there could be a connect between Section 67A and Section
67 itself. For example, there could be sexually explicit act or
conduct which may not be lascivious. Equally, such act or conduct
might not appeal to prurient interests. On the contrary, a sexually
explicit act or conduct presented in an artistic or a devotional form
may have exactly the opposite effect, rather than tending to
deprave and corrupt a person.
C. Quashing the FIR:
48. No offence of publication or transmission of any material in
electronic form, which is obscene, lascivious, or appealing to
prurient interest, and/or having the effect of tending to deprave
and corrupt persons, as provided under Section 67 of the 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 the bare reading of the
complaint. It is settled that a court must exercise its jurisdiction
to quash an FIR or criminal complaint when the allegations made
43
therein, taken prima facie, do not disclose the commission of any
offence.
82
49. In view of the above, we allow the appeals against the
judgment of the High Court dated 06.03.2023 in Criminal
Miscellaneous Case No. 2399 of 2020 , Criminal Miscellaneous
Case No. 2215 of 2020 and Criminal Miscellaneous Case No. 2214
of 2020, and set aside the judgment of the High Court, and quash
FIR 403/2023 registered at Police Station Mukherjee Nagar, Delhi
dated 16.04.2023 under Sections 67 and 67A of the IT Act against
the appellants herein.
50. Pending applications, if any, shall stand disposed of.
……..………………………………. J.
[A.S. Bopanna]
.………….…………………………. J.
[Pamidighantam Sri Narasimha]
New Delhi;
March 19, 2024
82
State of Haryana v. Bhajan Lal, (1992) SCC Supp (1) 335, 1992 INSC 357; State of AP v. Golconda Linga
Swamy, (2004) 6 SCC 522, 2004 INSC 404; Zandu Pharmaceutical Works Ltd v. Mohd Sharaful Haque, (2005)
1 SCC 122, 2004 INSC 628.
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