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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.902 OF 2004

Aveek Sarkar & Anr. .. Appellants

Versus

State of West Bengal & Ors. .. Respondents

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1. A German magazine by name “STERN” having

worldwide circulation published an article with a picture of

Boris Becker, a world renowned Tennis player, posing nude

with his dark-skinned fiancée by name Barbara Feltus, a film

actress, which was photographed by none other than her

father. The article states that, in an interview, both Boris

Becker and Barbaba Feltus spoke freely about their

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engagement, their lives and future plans and the message

they wanted to convey to the people at large, for posing to

such a photograph. Article picturises Boris Becker as a

strident protester of the pernicious practice of “Apartheid”.

Further, it was stated that the purpose of the photograph

was also to signify that love champions over hatred.

2.“Sports World”, a widely circulated magazine published

in India reproduced the article and the photograph as cover

story in its Issue 15 dated 05.05.1993 with the caption

“

Posing nude dropping out of tournaments, battling Racism in Germany. Boris

Becker explains his recent approach to life” – Boris Becker

Unmasked.

3.Anandabazar Patrika, a newspaper having wide

circulation in Kolkata, also published in the second page of

the newspaper the above-mentioned photograph as well as

the article on 06.05.1993, as appeared in the Sports World.

4.A lawyer practicing at Alipore Judge’s Court, Kolkata,

claimed to be a regular reader of Sports World as well as

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Anandabazar Patrika filed a complaint under Section 292 of

the Indian Penal Code 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 Sub-Divisional 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

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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

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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

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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 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

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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 20

th

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

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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 socio-moral

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

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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.

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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

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to several examples of changing notion of obscenity and

ultimately the Court observed as follows :-

“…. The world, is now able to tolerate much more

than formerly, having coming indurate by literature

of different sorts. The attitude is not yet settled…..”

This is what this Court has said in the year 1965.

13.Again in the year 1969, in Chandrakant Kalyandas

Kakodar (supra), this Court reiterated the principle as

follows:-

“The standards of contemporary society in India are

also fast changing. “

14.Above mentioned principle has been reiterated in

Samaresh Bose v. Amal Mitra (1985) 4 SCC 289 by laying

emphasis on contemporary social values and general

attitude of ordinary reader. Again in 2010, the principle of

contemporary community standards and social values have

been reiterated in S. Khushboo V. Kanniammal (2010) 5

SCC 600.

15. This Court in Ranjit D. Udeshi (supra) highlighted the

delicate task to be discharged by the Courts in judging

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whether the word, picture, painting, etc. would pass the test

of obscenity under Section 292 of the Code and the Court

held as follows :

“The Penal Code does not define the word obscene

and this delicate task of how to distinguish between

that which is artistic and that which is obscene has

to be performed by courts, and in the last resort by

the Supreme Court. The test must obviously be of a

general character but it must admit of a just

application from case to case by indicating a line of

demarcation not necessarily sharp but sufficiently

distinct to distinguish between that which is obscene

and that which is not. None has so far attempted a

definition of obscenity because the meaning can be

laid bare without attempting a definition by

describing what must be looked for. It may, however,

be said at once that treating with sex and nudity in

art and literature cannot be regarded as evidence of

obscenity without something more. The test of

obscenity must square with the freedom of speech

and expression guaranteed under our Constitution.

This invites the court to reach a decision on a

constitutional issue of a most far reaching character

and it must beware that it may not lean too far away

from the guaranteed freedom.”

16. Applying the above test, to the book “Lady

Chatterley’s Lover”, this Court in Ranjit D. Udeshi (supra)

held that in treating with sex the impugned portions viewed

separately and also in the setting of the whole book passed

the permissible limits judged of from our community

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standards and there was no social gain to the public which

could be said to preponderate the book must be held to

satisfy the test of obscenity.

17.The novel “Lady Chatterley’s Lover” which came to be

condemned as obscene by this Court was held to be not

obscene in England by Central Criminal Court. In England,

the question of obscenity is left to the Jury. Byrne, J.,

learned Judge who presided over the Central Criminal Court

in R. v. Penguin Books Ltd. (1961 Crl. Law Review 176)

observed as follows :-

“In summing up his lordship instructed the jury that:

They must consider the book as a whole, not

selecting passages here and there and, keeping their

feet on the ground, not exercising questions of taste

or the functions of a censor. The first question, after

publication was: was the book obscene? Was its

effect taken as a whole to tend to deprave and

corrupt persons who were likely, having regard to all

the circumstances, to read it? To deprave meant to

make morally bad, to pervert, to debase or corrupt

morally. To corrupt meant to render morally unsound

or rotten, to destroy the moral purity or chastity, to

pervert or ruin a good quality, to debase, to defile.

No intent to deprave or corrupt was necessary. The

mere fact that the jury might be shocked and

disgusted by the book would not solve the question.

Authors had a right to express themselves but

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people with strong views were still members of the

community and under an obligation to others not to

harm them morally, physically or spiritually. The jury

as men and women of the world, not prudish but

with liberal minds, should ask themselves was the

tendency of the book to deprave and corrupt those

likely to read it, not only those reading under

guidance in the rarefied atmosphere of some

educational institution, but also those who could buy

the book for three shillings and six pence or get it

from the public library, possibly without any

knowledge of Lawrence and with little knowledge of

literature. If the jury were satisfied beyond

reasonable doubt that the book was obscene, they

must then consider the question of its being justified

for public good in the interest of science, literature,

art or learning or other subjects of general concern.

Literary merits were not sufficient to save the book,

it must be justified as being for the public good. The

book was not to be judged by comparison with other

books. If it was obscene then if the defendant has

established the probability that the merits of the

book as a novel were so high that they outbalanced

the obscenity so that the publication was the public

good, the jury should acquit.”

18.Later, this Court in Samaresh Bose (supra), referring

to the Bengali novel “Prajapati” written by Samaresh Bose,

observed as follows :-

“35. .................. We are not satisfied on reading the

book that it could be considered to be obscene.

Reference to kissing, description of the body and the

figures of the female characters in the book and

suggestions of acts of sex by themselves may not

have the effect of depraving, debasing and

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encouraging the readers of any age to lasciviousness

and the novel on these counts, may not be

considered to be obscene. It is true that slang and

various unconventional words have been used in the

book. Though there is no description of any overt act

of sex, there can be no doubt that there are

suggestions of sex acts and that a great deal of

emphasis on the aspect of sex in the lives of persons

in various spheres of society and amongst various

classes of people, is to be found in the novel.

Because of the language used, the episodes in

relation to sex life narrated in the novel, appear

vulgar and may create a feeling of disgust and

revulsion. The mere fact that the various affairs and

episodes with emphasis on sex have been narrated

in slang and vulgar language may shock a reader

who may feel disgusted by the book does not resolve

the question of obscenity...............”

We have already indicated, this was the contemporary

standard in the year 1985.

19.We are, in this case, concerned with a situation of the

year 1994, but we are in 2014 and while judging as to

whether a particular photograph, an article or book is

obscene, regard must be had to the contemporary mores

and national standards and not the standard of a group of

susceptible or sensitive persons.

HICKLIN TEST:

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20.In the United Kingdom, way back in 1868, the Court laid

down the Hicklin test in Regina v. Hicklin (1868 L.R. 2 Q.B.

360), and held as follows :-

“The test of obscenity is 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.”

21.Hicklin test postulated that a publication has to be

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. United States, however, made a

marked departure. Of late, it felt that the Hicklin test is not

correct test to apply to judge what is obscenity. In Roth v.

United States 354 U.S. 476 (1957), the Supreme Court of

United States directly dealt with the issue of obscenity as an

exception to freedom of speech and expression. The Court

held that the rejection of “obscenity” was implicit in the First

Amendment. Noticing that sex and obscenity were held not

to be synonymous with each other, the Court held that only

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those sex-related materials which had the tendency of

“exciting lustful thoughts” were found to be obscene and the

same has to be judged from the point of view of an average

person by applying contemporary community standards.

22.In Canada also, the majority held in Brodie v. The

Queen (1962 SCR 681) that D.H. Lawrence’s novel “Lady

Chatterley’s Lover” was not obscene within the meaning of

the Canadian Criminal Code

23.The Supreme Court of Canada in Regina v. Butler

(1992) 1 SCR 452, held that the dominant test is the

“community standards problems test”. The Court held that

explicit sex that is not violent and neither degrading nor

dehumanizing is generally tolerated in the Canadian society

and will not qualify as the undue exploitation of sex unless it

employs children in its production. The Court held, in order

for the work or material to qualify as ‘obscene’, the

exploitation of sex must not only be a dominant

characteristic, but such exploitation must be “undue”.

Earlier in Towne Cinema Theatres Ltd. v. The Queen

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(1985) 1 SCR 494, the Canadian Court applied the

community standard test and not Hicklin test.

COMMUNITY STANDARD TEST:

24.We are also of the view that Hicklin test is not the

correct test to be applied to determine “what is obscenity”.

Section 292 of the Indian Penal Code, of course, uses the

expression ‘lascivious and prurient interests’ or its effect.

Later, it has also been indicated in the said Section of the

applicability of the effect and the necessity of taking the

items as a whole and on that foundation where such items

would tend to deprave and corrupt persons who are likely,

having regard to all the relevant circumstances, to read, see

or hear the matter contained or embodied in it. We have,

therefore, to apply the “community standard test” rather

than “Hicklin test” to determine what is “obscenity”. A bare

reading of Sub-section (1) of Section 292 , makes clear that

a picture or article shall be deemed to be obscene (i) if it is

lascivious; (ii) it appeals to the prurient interest, and (iii) it

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tends to deprave and corrupt persons who are likely to read,

see or hear the matter, alleged to be obscene. Once the

matter is found to be obscene, the question may arise as to

whether the impugned matter falls within any of the

exceptions contained in Section. A picture of a nude/semi-

nude woman, as such, cannot per se be called obscene

unless it has the tendency to arouse feeling or revealing an

overt sexual desire. The picture should be suggestive of

deprave mind and designed to excite sexual passion in

persons who are likely to see it, which will depend on the

particular posture and the background in which the

nude/semi-nude woman is depicted. Only those sex-related

materials which have a tendency of “exciting lustful

thoughts” can be held to be obscene, but the obscenity has

to be judged from the point of view of an average person, by

applying contemporary community standards.

MESSAGE AND CONTEXT

25.We have to examine the question of obscenity in the

context in which the photograph appears and the message it

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wants to convey. In Bobby Art International & Ors. v.

Om Pal Singh Hoon (1996) 4 SCC 1, this Court while

dealing with the question of obscenity in the context of film

called Bandit Queen pointed out that the so-called

objectionable scenes in the film have to be considered in the

context of the message that the film was seeking to transmit

in respect of social menace of torture and violence against a

helpless female child which transformed her into a dreaded

dacoit. The Court expressed the following view :-

“First, the scene where she is humiliated, stripped

naked, paraded, made to draw water from the well,

within the circle of a hundred men. The exposure of

her breasts and genitalia to those men is intended

by those who strip her to demean her. The effect of

so doing upon her could hardly have been better

conveyed than by explicitly showing the scene. The

object of doing so was not to titillate the

cinemagoer’s lust but to arouse in him sympathy for

the victim and disgust for the perpetrators. The

revulsion that the Tribunal referred to was not at

Phoolan Devi’s nudity but at the sadism and

heartlessness of those who had stripped her naked

to rob her of every shred of dignity. Nakedness does

not always arouse the baser instinct. The reference

by the Tribunal to the film “Schindler’s List” was apt.

There is a scene in it of rows of naked men and

women, shown frontally, being led into the gas

chambers of a Nazi concentration camp. Not only are

they about to die but they have been stripped in

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their last moments of the basic dignity of human

beings. Tears are a likely reaction; pity, horror and a

fellow-feeling of shame are certain, except in the

pervert who might be aroused. We do not censor to

protect the pervert or to assuage the susceptibilities

of the over-sensitive. “Bandit Queen” tells a powerful

human story and to that story the scene of Phoolan

Devi’s enforced naked parade is central. It helps to

explain why Phoolan 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 dark-skinned lady

standing close to each other bare bodied but covering the

breast of his fiancée with his hands can be stated to be

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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, semi-nude, 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

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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 inter-racial 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 white-skinned 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

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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.

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……………………………..J.

(K. S. Radhakrishnan)

.….………………………...J.

(A.K. Sikri)

New Delhi,

February 03, 2014.