TaxTMI 
TaxTMI 
2014 (2) TMI 1432
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....urpose 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 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 phot....
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....tating that there was no illegality in reproducing in the Sports World as well as in the Anandabazar Patrika of the news item and photograph appeared in a magazine 'STERN" published in Germany. Further, it was pointed out that the said magazine was never banned entry into India and was never considered as 'obscene', especially when Section 79 of Indian Penal Code states that nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not reason of a mistake of law in good faith, believes himself to be justified by law, in doing it. 7. The Court after seeing the photographs and hearing the arguments on either side, held as follows: Moreover, until evidence comes in it will not be proper to give any opinion as to the responsibility of the accused persons. But I feel it pertinent to mention that though the Section 292 does not define word 'obscene', but my rids of precedents have clustered round on this point and being satisfied with the materials on record, pernicious effect of picture in depraving and debauching the mind of the persons into whose hands it may come and also for other sufficient reasons to....
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.... 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) Indian Penal Code so as to remand a trial of the Appellants in respect of the alleged offence under Section 292(1) Indian Penal Code. 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 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 conte....
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.... 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 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 obscen....
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.... 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,....
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....(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 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 Code of Criminal Procedure. 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 mat....
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....cenity 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 i....