(2016) 461 KLW 958
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, J.
Crl.M.C.No. 6748 of 2014
Dated this the 8th day of April, 2016
CC 1127/2014 of J.M.F.C.-II, ERNAKULAM CRIME NO.1215/2014 OF ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM
PETITIONERS/ACCUSED 1 TO 6 & 8
ADV.PREETHA K.K. AND 6 OTHERS
BY ADVS.SRI.K.S.MADHUSOODANAN SRI.THOMAS CHAZHUKKARAN SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SRI.K.S.MIZVER
RESPONDENTS/FORMAL PARTY/COMPLAINANT
1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.
2. SUB INSPECTOR OF POLICE CENTRAL POLICE STATION, ERNAKULAM -682 031.
R1 & R2 BY PUBLIC PROSECUTOR SRI.P.V.ELIAS
O R D E R
The petitioners herein are accused in the impugned FIR No.1215/2014 of the Ernakulam Central Police Station (referred to in Anx.I), registered offences punishable under
Secs.143, 147, 149, 238 & 294(a) of the I.P.C. r/w Sec.118(a) of the Kerala Police Act, 2011.
The Police, after investigation has filed the impugned Anx.1 final report/charge sheet for the abovesaid offences, which has been taken into file as Calendar Case, C.C.No.1127/2014 on the file of the Judicial First Class Magistrate's Court-II, Ernakulam. The gist of the allegations therein is that the accused persons, who are women, by standing at Shanmugham Road at Ernakulam, in front of Swapnil Flat, had raised slogans against the atrocities of offences committed towards women and that they had exposed nudity and had caused obstruction to the commuters and vehicles and thereby committed the above offences, etc. It is the case of the petitioners that in June, 2014, at Badaol in the State of Uttar Pradesh, two teenaged girls were raped and killed and their dead bodies were hanged on the branch of a tree. The law enforcing agency/Police machinery had remained mute spectators because the culprits of the heinous crime included Police and from members of the community of that of the Chief Minister of that State and that on 4th June, 2014 at 4.15 p.m. the women accused concerned led by two prominent lawyers of this Court had assembled in front of the Swapnil Flat at Shanmugham Road, covering their normal dresses with shawls and having written slogans against atrocities of serious heinous offences committed against women. That the accused were taken into custody and brought to the Central Police Station, Ernakulam and the impugned crime was registered and that they were released on bail, etc. Anx.II is the photographs of the scene in question, which is said to have been circulated in media as well as social media and it shows that the women accused concerned had covered themselves with shawls and various slogans were written in the said shawls. According to the petitioners, none of the offences alleged in the impugned Anx.I final report/charge sheet is borne in the facts and circumstances of this case. It is pointed out that the respondent Police authorities themselves have meticulously detailed out in the impugned Anx.I proceedings, more particularly in column No.12 of Anx.I(3), Anx. I(7), Anx.I(8) given on pages 6, 10, 11 etc. of the paper book, that the women accused concerned in this case were primarily involved in the activity of demonstrating and agitating before the public against the heinous crimes committed against women, etc. It is urged by the petitioners that to constitute offence Sec.118(a) of the Kerala Police Act, one should be found in a public place in an intoxicated manner or rioting condition or incapable of looking after himself, for which five elements of unlawful assembly to commit riot as defined under Sec.147 read with Sec.141 of the I.P.C. are to be made out in the light of provisions contained in Sec.2(2) of the Kerala Police Act, 2011. That to constitute riot, the five elements envisaged under Sec.141 read with Sec.147 of the I.P.C. are essential and even going by the aforestated versions projected in the impugned Anx.1 proceedings as stated above, the common object of the assembly is not the object assigned and envisaged under the five clauses under Sec. 141 as specific case in the impugned Anx.I proceedings is that the women accused concerned were agitating against the sexual assault and other heinous offences committed against women and teenaged girls. Hence it is urged that the entire offence dealing with unlawful assembly and rioting has no foundation or legs to stand. That for the offence under Sec.283 of the I.P.C. there should be necessarily evidence as to obstruction caused to any person in any public way and that in anyone of the statements or materials referred to in the impugned Anx.I proceedings there is not even a remote whisper anywhere therein as to any alleged obstruction caused by the accused persons. That no person obstructed by the act of the accused has been even arrayed as witness and that there is total dearth of material to constitute the said offence. That as far as offence under Sec.294(a) of the I.P.C. is concerned, there should be annoyance to others caused by any obscene act in any public place and even a bare perusal of Anx.II photographs would make it clear that no nudity is exposed as alleged in Anx.I. That at any rate, vital ingredients of obscenity as envisaged under Sec.294(a) of the I.P.C. are conspicuously and fully absent and inapplicable in the present allegations, going by the legal principles well settled by a series of rulings of Apex Court as in
Bobby Art International v. Om Pal Singh Hoon reported in (1996) 4 SCC 1,
Ajay Goswami v. UOI reported in (2007) 1 SCC 143,
Aveek Sarkar and another v. State of West Bengal and others reported in (2014) 4 SCC 257,
etc.
That the Apex Court has held in many rulings that there is world of difference between “vulgarity” and “obscenity” on the other hand and that even exposure of nudity by itself cannot lead to imputation of obscenity, etc.
That even the respondents would clearly admit in Anx.I materials that the the petitioners, who are women accused therein, were agitating and demonstrating against the heinous crimes and offences committed against women and teenaged girls and that the whole incident of protest and agitation made by such women activists should be evaluated in the light of such factual circumstances and that it would be a sheer abuse of the process of the court to permit continuance of the impugned criminal proceedings and that the same would amount to grave miscarriage of justice, etc.
2. Heard Sri.K.S.Madhusoodanan, learned counsel appearing for the writ petitioners and the learned Prosecutor appearing for the respondents.
3. Even going by the materials referred to in the impugned Anx.I proceedings, the petitioners are women activists, who were agitating and demonstrating against cruelty and atrocities committed against women and female children. This was more particularly in the light of the incidents that happened at Badaol in the State of Utter Pradesh in June 2014, when two teenaged girls were raped and killed and their dead bodies were hanged on the branch of a tree and there were widespread allegations that the law enforcing agency/ Police machinery concerned had remained mute spectators because the culprits included members of the Police force, etc. and that they belong to the community of the powerful political leaders of the State etc. Sec.2(2) of the Kerala Police Act, 2011, reads as follows:-
“2:Definitions (1) In this Act, unless the context otherwise requires.- xxx xxx xxx (2) Words and expressions used and not defined in this Act, but defined in the Indian Penal Code, 1860 (Central Act 45 of 1860) or in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) shall have the meanings respectively assigned to them therein.”
Sec.118(a) of the Kerala Police Act, 2011 provides as follows:-
“Sec.118:Penalty for causing grave violation of public order or danger.- Any person who,- (a) is found in a public place, in an intoxicated manner or rioting condition or incapable of looking after himself;”
Thus it can be seen that as per Sec.2(2) of the Kerala Police Act, the words and expressions used and not defined in that Act, but defined in the Indian Penal Code shall have the meanings respectively assigned to them therein. To constitute the offence under Sec.118(a) of the Kerala Police Act, one should be found in a public place, in an intoxicated manner or rioting condition or incapable of looking after himself, for which the five elements of unlawful assembly to commit riot as defined under Sec.147 read with Sec.141 of the I.P.C. are to be made out. Sec.141 of the I.P.C. reads as follows:-
“Sec.141:Unlawful assembly,- An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- First- To overawe by criminal force, or show of criminal force the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second- To resist the execution of any law, or of any legal process; or Third- To commit any mischief or criminal trespass, or other offence; or Fourth- By means of criminal force, of show or criminal force, to any person, to take or obtain possession of any property or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.'
Sec.146 of the I.P.C. reads as follows:-
“Sec.146:Rioting.- Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.”
Sec.147 of the I.P.C. reads as follows:-
“Sec.147:Punishment for rioting.- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
Sec.149 of the I.P.C. reads as follows:-
“Sec.149:Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”
To constitute riot, any of the five elements envisaged in Sec.141 along with “force” or “violence” envisaged in Sec.146 of the I.P.C. are its essential pre-requisites. Even the respondents clearly advert to in the various materials produced in the impugned Anx.1 proceedings as referred to above, that the petitioners, as women activists were protesting and demonstrating against the commission of heinous crimes against women as stated above. There is no precise allegation in Anx.I that the accused have used any criminal force or violence. Hence this Court is inclined to accept the argument of the learned counsel for the petitioners that the common object of the assembly cannot be anyone of the elements referred to in the five clauses under Sec.141 of the I.P.C. Two of the accused are Advocates practising before this Court and even the respondents at the time of arguments, have not in any way seriously disputed that the petitioners are women activists and who were espousing the cause of womens' rights so as to protest against the heinous and grave offences committed against women and teenaged girls. In the light of these aspects, it cannot be held that the offences under Secs.143, 147 & 149 of the I.P.C. and Sec.118(a) of the Kerala Police Act are seriously disclosed in the facts and circumstances of this case.
4. As far as the offence under Sec.283 of the I.P.C. is concerned, there should be some clear and cogent material to disclose that obstruction was caused to any person in any public way. In none of the statements and materials, which are accompanying the impugned Anx.I final report/charge sheet, is there even a remote whisper anywhere therein as to any alleged obstruction caused by anyone of the accused to persons who are using the public way. Not even a single person so alleged to be obstructed by any such alleged act of the accused is even arrayed as witness in Anx.I proceedings. Only the statement of the two Police witnesses are referred to in the impugned Anx.I. Even they do not have a version in the statement attached to Anx.I that they have been annoyed in seeing the so-called alleged “obscenity” of the accused and there is no whisper of any “lascivious” act or appeal to the prurient interest or tendency to deprive or corrupt them, etc. Moreover, since these two Police witnesses, being not pedestrians or passengers in any vehicle, it cannot be said that there are any minimal cogent materials to disclose the offence under Sec.283 of the I.P.C.
5. Now the main issue, as to whether the alleged offence under Sec.294(a) is disclosed in the facts and circumstances of this instant case, should be considered. The incident in question should be evaluated in the light of the aforestated undisputed factual position of the matter that the petitioners are all women activists, who were demonstrating and agitating against the heinous crimes and atrocities committed against women and female children, especially in the light of grave incidents of murder and rape committed on two teenaged girls in June 2014 in Badaol in the State of Uttar Pradesh, where the dead bodies of these two tender teenaged girls were hanged on the branch of a tree and there was widespread feeling that the law enforcing agency had remained mute spectators to such ghastly incident, etc. Sec.294(a) of the I.P.C. reads as follows:-
“Sec.294:Obscene acts and songs.-Whoever, to the annoyance of others - (a) does any obscene act in any public place, or xxx xxx xxx”
Sec.292 of the I.P.C. reads as follows:-
“Sec.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 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. (2) Whoever- (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or (b) imports, exports or conveys any obscene object for any of the purposes aforesaid or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or (c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or (d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or (e) offers or attempts to do any act which is an offence under this section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a 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 five thousand rupees. xxx xxx xxx”
Sec.293 of the I.P.C. provides as follows:-
“Sec.293:Sale, etc. of obscene objects to young person.- Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years, any such absence object as is referred to in the last preceding section, or offers or attempts so to do, 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 two thousand rupees, and, in the event of a 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 five thousand rupees.”
It is now well settled by various rulings of the court that since provisions contained in Secs.292, 293 and 294 of the I.P.C. come under same Chapter, the word “obscenity” appearing in Sec. 294 is to be understood as conceived for the purpose in Sec.292 of the I.P.C. and that to attract the offence under Sec.294 of the Act, 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 that it must be capable of arousing sexually impure thoughts and must certainly involve some grave lascivious elements arousing sexual thoughts or feelings or it must have the effect of depraving persons and defiling morals by sex appeal or lustful desires.
6. Reference in this regard may be made to the rulings as in
P.T Chacko v. Nainan Chacko reported in 1967 KLT 799;
Sangeetha Lakshmana v. State of Kerala reported in 2008(2) KLT 745;
Dhanisha v. Rakhi N.Raj, reported in 2012(2) KLT 55, paras 23 and 24;
Latheef v. State of Kerala, reported in 2014 (2) KLT 987,
para 5, etc.
7. The Apex Court has during the last decade and a half considered the scope and ambit of the criminal offence of obscenity in a series of major rulings and it will be profitable to refer to three celebrated rulings in this regard viz.,
Bobby Art International v. Om Pal Singh Hoon reported in (1996) 4 SCC 1,
Ajay Goswami v. Union of India reported in (2007) 1 SCC 143
and
Aveek Sarkar and Anr. v. State of West Bengal and others reported in (2014) 4 SCC 257.
8. In
Bobby Art International v. Om Pal Singh Hoon reported in (1996) 4 SCC 1,
the Apex Court dealt with a case to consider whether the movie, “Bandit Queen”, which is based on the story of Phoolan Devi contains obscene scenes. The Apex Court noted in paras 27 to 29 and 33 thereof that in the first scene in the movie in question there were graphic visualizations of Phoolan Devi, humiliated, stripped, naked, paraded and made to draw water from the well, within the circle of a hundred men, that the exposure of her breasts and genitalia to those men is intended by those, who stripped her to demean her. It is thus observed that the effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene and that nakedness does not always arouse the baser instinct and that the movie “Bandit Queen” tells a powerful human story and to that story the scene of enforced naked parade is central and that it helps to explain why she became what she did: her rage and vendetta against the society that had heaped indignities upon her. As regards the second scene, the rape scene was held to explain why she became what she did. That rape is crude and its crudity is what the rapist’s bouncing bare posterior is meant to illustrate and that it was held that rape and sex are not being glorified in the film and quite the contrary, the movie showed what a terrible, and terrifying, effect rape and lust can have upon the victim. That the film focused on the trauma and emotional turmoil of the victim to evoke sympathy for her and disgust for the rapist. It was held that the scenes of nudity and rape and the use of expletives, were in aid of the theme and intended not to arouse prurient or lascivious thoughts but revulsion against the perpetrators and pity for the victims. The Apex Court in para 27 of the ruling in Bobby Art International 's case held as follows:-
“27. 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 their last moments of the basic dignity of human beings. Tears are a likely reaction; pity, horror and a fellowfeeling 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.”
9. In para 8 of the said ruling, the Apex Court has also referred to the observation of the Appellate Tribunal therein that Censor Board had passed the famous movie, ‘Schindler’s List’ without a cut and despite prolonged sequences of frontal nudity of men and women depicted therein, and that this was done rightly so because the scenes of frontal nudity in that film were intended to create a feeling of revulsion and a sense of horror that such crimes could indeed be committed against humanity. In para 19 of the said ruling, the Apex Court has specifically referred to ruling
Samaresh Bose v. Amal Mitra reported in (1985) 4 SCC 289,
pp.318-19, para 35, that a vulgarity is not necessarily obscene and that vulgarity arouses a feeling of disgust and revulsion and also boredom, but does not have the effect of depraving, debasing and corrupting the morals of the persons observing it, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences. Thus the Apex Court has held that there is clear cut difference between “vulgarity” on the one hand and “obscenity” on the other hand and the vulgarity is not necessarily obscene.
10. In the case
Ajay Goswami v. Union of India reported in (2007) 1 SCC 143,
the Apex Court held that in adjudging as to whether a particular work is absence, due regard must be had to the contemporary mores and national standards and that it is necessary that the impugned publication must be judged as a whole and impugned publication should also separately be examined so as to judge whether the impugned passages are so grossly obscene and are likely to deprave and corrupt. In para 70 of the said ruling the Apex Court relied on the test of “clear and present danger”. Para 70 thereof reads as follows:-
“70. In
S. Rangarajan v. P. Jagjivan Ram [(1989) 2 SCC 574]
while interpreting Article 19(2) this Court borrowed from the American test of clear and present danger and observed: (SCC pp. 595-96, para 45)
“[The] commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. [In other words, the expression should be inseparably] like the equivalent of a ‘spark in a power keg’.”
In para 71, the Apex Court held that the test for adjudging a work should that of an ordinary man of common sense and prudence and not an “out of the ordinary or hypersensitive man”. Therein the Apex Court also relied on the famous observations of Chief Justice Hidayatullah, in the celebrated case K.A.Abbas v Union of India reported in (1970) 2 SCC 780, (p.802, para 49) that
“If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman’s legs in everything, it cannot be helped”.
In paras 35 and 61 of Ajay Goswami's case supra the Apex Court has clearly held that nudity by itself is not enough to make a material legally obscene.
11. In the case
Aveek Sarkar & Anr. v. State of West Bengal & Ors. reported in (2014) 4 SCC 257,
the Apex Court held that the community standard test should be acceptable test for determination of obscenity and that the Hicklin's test referred to in (1868) LR 3 QB 360, is not the correct test. That obscenity should be determined from the point of view of the average person and in the context of contemporary mores and national standards, as concept of obscenity keeps on changing with social values. A photograph of a nude/semi-nude woman by itself cannot be obscene and obscenity would depend upon particular posture and background in which nude woman is depicted and looked at a whole, it should necessarily tend to deprave and corrupt the mind and excite lustful sexual passions so as to constitute the offence of obscenity under Sec.292 of the I.P.C. In that case the Apex Court dealt with the publication in the newspaper of a picture of a new white-skinned man (renowned German tennis Player - Boris Becker) standing close to his dark-skinned nude/semi-nude fiancée (actress) and the man in the photograph was covering the breast of his fiancée with his hands, followed by an article, conveying message to the people against the practice of apartheid/racism and that love triumphs over hatred. The Apex Court held therein that the impugned photograph was not obscene and that no offence is committed under Sec. 292 and that the learned Judicial Magistrate erred in initiating proceedings under Sec.292 of the I.P.C. and Sec.4 of the Indecent Representation of Women (Prohibition) Act, without due application of mind and that the High Court in the impugned judgment therein had also erred in refusing to quash the impugned criminal proceedings in exercise of powers under Sec.482 of the Cr.P.C. Accordingly, the Apex Court quashed the impugned criminal proceedings. The Apex Court held that in order to constitute the offence under Sec.292(1) of the I.P.C., the impugned picture or article, in order to be obscene, should satisfy the following ingredients:-
(i) if it is lascivious; (ii) it appeals to the prurient interest; and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene.
It will be profitable to refer to paragraphs 23 to 30 of the case in Aveek Sarkar's case supra, which read as follows:-
'23. We are also of the view that Hicklin test [(1868) LR 3 QB 360] is not the correct test to be applied to determine “what is obscenity”. Section 292 of the 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 the “Hicklin test” [(1868) LR 3 QB 360] 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 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 the section. A picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse the feeling of 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
24. We have to examine the question of obscenity in the context in which the photograph appears and the message it wants to convey. In
Bobby Art International 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: (SCC p. 15, para 27)
“27. 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 their last moments of the basic dignity of human beings. Tears are a likely reaction; pity, horror and a fellowfeeling 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)
25. In
Ajay Goswami v. Union of India [(2007) 1SCC 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: (SCC p. 170, para 70)
“70. … ‘45. … [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.’**”
26. We have to examine whether the photograph of Boris Becker with his fiancée Barbara Feltus, 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 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 Feltus 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.
27. 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 out of tournaments, battling racism in Germany…”. Boris Becker himself in
the article published in the German magazine, speaks of the racial discrimination prevalent in Germany and the article highlights Boris Becker’s protests against racism in Germany. Boris Becker himself puts it, as quoted in the said article:-
“the nude photos were supposed to shock, no doubt about it… What I am saying with these photos is that an interracial relationship is okay.”
28. The message, the photograph wants to convey is that the colour of skin matters little and love champions over colour. The picture promotes love affair, leading to a marriage, between a whiteskinned man and a black-skinned woman. We should, therefore, appreciate the photograph and the article in the light of the message it wants to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and marriage between white-skinned man and a black-skinned woman. When viewed in that angle, we are not prepared to say that the picture or the article which was reproduced by Sports World and the Anandabazar Patrika be said to be objectionable so as to initiate proceedings under Section 292 IPC or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
29. 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. The 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 CrPC to secure the ends of justice.
30. We are, therefore, inclined to allow this appeal and set aside the criminal proceedings initiated against the appellants. The appeal is allowed as above.'
12. Evaluating the allegations in the impugned Anx.I criminal proceedings in the light of the aforestated well settled legal principles, it is to be noted that nudity by itself will not legally fulfil the requirement of obscenity as envisaged in Sec.292 and Sec.294 (a) of the I.P.C. and that vulgarity is different from obscenity.
Even the respondents clearly advert to in their materials in the impugned Anx.I criminal proceedings that the petitioners, who are women accused, were demonstrating and agitating against heinous and grave offences committed against women and teenaged girls. Though there is a reference in the impugned Anx.I FIR that they exposed nudity, the photographs as in Anx.II were widely circulated in the print media as well as social media to highlight the novel form of agitation by the women activists to show their active protest against the commission of such grave and heinous crimes and to show their solidarity and sisterhood with the teenaged victims of murder and rape. Anx.II photographs would also show that all the accused had covered themselves with shawls, wherein there were slogans written on its back portion and the shawls had covered their apparels and the shawls were placed in such a way as if they would expose their nudity to show their protest against the said incidents of crimes. During the course of the hearing, to a pointed question to the learned Public Prosecutor appearing for the respondents as to the respondents have any case that the true state of affairs were not in the manner shown in Anx.II, the learned Public Prosecutor fairly submitted that the respondents are not in a position to assert against the correctness of Anx.II, but that as the law and order enforcing machinery, the Police have resorted to the impugned criminal proceedings, etc.
This Court, on an evaluation of the entire facts and circumstances of this case, has no hesitation to hold that by no stretch of imagination can it be held that the accused have in any way committed an act, which amounts to a lascivious act or which appeals to the prurient interest or that it tended to deprave, corrupt and defile the morals of any persons, so as to attract the vital elements of obscenity as contemplated in Secs.292 and 294(a) of the I.P.C.
13. Before taking a final view in this regard, this Court should be convinced that the exercise of discretion under Sec.482 of the Code of Criminal Procedure should be to further the cause of justice and to prevent miscarriage of justice. Therefore, this Court is constrained to evaluate the incidents of protest and demonstration in which the petitioners had involved as women activists.
14. Justice J.S.Verma Commission Report dated 23.1.2013 has dealt with the serious issues of sexual offences against women, consequent on which, the Criminal Law Amendment Act, 2013, was made effective from 3.4.2013 amending certain provisions of the I.P.C., Cr.P.C., Evidence Act and Protection of Children from Sexual Offences Act, 2012. Certain aspects in that report are worthy of notice in this context. Dealing with Constitutionalism, republicanism, gender equality the Justice J.S.Verma Commission Report held in para 5 on Chapter I, page 25, thereof as follows:-
“India’s democracy as well as sovereignty is contingent on the realization of the ideal of social justice. We are therefore of the view that gender inequality is contrary to the unifying idea of a sovereign democratic republic.”
Further, it has been observed in para 7 thereof regarding the agitation of various social activists in Delhi against “rape on Ahhaya” on 16th December, 2012, in para 6 on of the report, as follows,
“We would like to state that it is the youth of India who actually by their extraordinary protest have reinforced reason, and have attempted to confront the state and political elite, to what is modern reality in the contest of the Constitution. The solidarity which cut across caste, creed, sex, religion and community clearly shows that the protest was dictated entirely by secular and rational considerations. We believe that the promotion of rational behaviour which appears to be the engagement of youth as we could see from the protest is one of the telling tales of optimism for the future; but we need to caution the State that if such protest and if such engagements are discarded by arrogance of power, or the assumption authority, the political class may itself find its existence deeply imperiled.”
The Commission also observed in para 52 on of the Report as follows:-
“We are of the opinion that this protest which was made by young India is a protest against institutional bias which both men and women perceive related to women and we think that it is an important facet of this protest.”
At the concluding Chapter the Commission observed in para 16 at of the Report that
“the lathi charge on peaceful demonstrators after December, 16 gang rape as a scarred Indian democracy”.
Dealing with the inertia of the Police machinery in dealing with rape cases, the Commission held in para 46 on pages 43 and 44 on Chapter 1 of the Report as follows:-
“to state that there have been cases where the police has viewed vulnerability of the victims as a corresponding additive to its own strength of control. We are afraid, the violation of human right pertaining to ‘rape cases’ including permission of rape, distorting investigation in rape, preconceived notions on ‘honour’ certain regressive court judgment (in some cases, we are told, that the rapist made a magnanimous offer to marry the girl), are extra ordinarily telling euphemisms of misplaced morality. Thus complaints of rape become mere matters of formality – low on priority because there is no understanding of the acuteness of the violation of human rights in respect of a woman while sexual assault and the psychological trauma she undergoes. This is compounded by vulnerabilities emanating from class/caste/community disadvantages and also that of poverty”.
It is also relevant to note that the Commission observed in Chapter 10 on para 7 at pages 263-264, as follows:-
“ Advisory on Crime against Women – Measures needed to curb – regarding, quoted from the memorandum:-
“2 These advisories, inter alia, include gender sensitization of the police personal, adopting appropriate measures for swift and salutary punishment to public servants found guilty of custodial violence against women, minimizing delays in investigations of murder, rape
and torture of women and improving its quality, setting up a ‘crime against women cell’ in districts where they do not exist, providing adequate counseling centers and shelter homes for women who have been victimized, setting up of special women courts, and improving the effectiveness of schemes developed for the welfare and rehabilitation of women who are victimized with greater emphasis on income generations to make the women more independent and self reliant.”
Dealing with the institutional bias, Justice V.S.Verma Commission Report , has held in para 50 at of the Report, as follows:-
“We do broadly agree that the institutional bias against women in India is a failure on the part of State and its organs to provide appropriate non discriminatory treatment to people because of their sex or gender. We do agree that such bias can be seen and detected in processes, attitudes and behavior which disadvantage women”.
Further in para 58 on of the Report, the Commission found that:-
“It is clear that this institutional bias, especially against the weaker sections of the society, have resulted in women and children being contained and managed like chattel due to the apathy of the State. When a woman belongs to the weaker section of society, she already suffers from, therefore, a twin disadvantage, i.e. she is standing at the cross roads of both being a women as well as being economically disadvantaged.”
The Commission has also noted in paras 2, 5, 6 and 8 on pages 411 and 412 of the Report regarding the need for speedy justice and Police reform, performing appraisal for career progression. It was recommended in para 1 on pages 415 of the Report that
“all limbs of the State – the executive, the legislature as well as the judiciary must respect women’s right and must treat them in an non discriminatory manner”.
It was also held in para 8 on page 417 of the Report that
“The police respect a patriarchal form of society and have been unable to deal with extra ordinary cases of humiliation and hardship caused by Khap Panchayat’s as is evident from various judgments of Supreme Court”.
15. The Commission has cautioned in para 9 on pages 417- 418 of the Report against political interference or extraneous influence in the performance of statutory duty by Police in tackling offences against women and that every member of the Police force should clearly understand that their accountability is only to the law and to noneelse in the discharge of their duty, etc. This Court has referred to the above aspects relating to the Justice V.S.Verma Commission Report only to evaluate the context of the incidents in question.
16. In the light of the various aspects mentioned hereinabove, this Court has no hesitation to hold that the vital elements of obscenity as envisaged in Secs.292 and 294 of the I.P.C. are not disclosed in the facts and circumstances of this case.
In the light of aforestated aspects dealt with hereinabove, further continuance of the impugned criminal proceedings would amount to abuse of the process of the court and would result in miscarriage of justice. Accordingly, by virtue of the enabling powers conferred on this Court under Sec.482 of the Code of Criminal Procedure it is ordered in the interest of justice that the impugned criminal proceedings, which emanated out of the impugned FIR No.1215/2014 of Ernakulam Central Police Station and the impugned Anx. I final report/charge sheet filed in respect of that FIR and all further proceedings arising therefrom, which has led to the institution of Calendar Case, C.C.No. 1127/2014 on the file of the Judicial First Class Magistrate's Court-II, Ernakulam, pending against the accused persons therein are quashed. The petitioners will produce certified copy of this judgment/order before the Judicial First Class Magistrate's Court-II, Ernakulam,
With these observations and directions, the aforecaptioned Criminal Miscellaneous Case stands finally disposed of.
Sd/- sdk+
ALEXANDER THOMAS, JUDGE
///True copy/// P.S. To Judge.