Friday 2 August 2013

Obscene photographs of Shilpa Shetty; conviction quashed as she hadn’t published.

Now, let me consider the contentions of the petitioners. The main contention is that absolutely there is no material whatsoever on record to show that the pictures of the petitioners were published at the instance of the petitioners. The learned counsel for the petitioners would rely on Section 292 (2) I.P.C and would contend that under the said Provision, it is only the person who 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 is liable to be punished. In this case, admittedly, the person, who published the daily is only the first accused and there is no material whatsoever on record even to make out a prima facie case that the petitioners were responsible for the printing of their pictures, which are said to be obscene, the counsel contended.

Madras High Court
Shilpa Shetty vs T. Dakshinamurthy on 23 April, 2008




The petitioners in these Criminal Original Petitions are Accused Nos.2 and 3 respectively in C.C.NO.308 of 2006 on the file of the learned Judicial Magistrate No.II, Madurai, facing prosecution for the alleged offences under Sections 292(2), 109 I.P.C read with Sections 3,4 and 6 of the Indecent Representation of Women (Prohibition) Act and Section 3 of the Young Persons (Harmful Publication) Act. The first accused in the said case is the Publisher, Printer and Editor of a Tamil Daily known as "Tamil Murasu". The respondent herein has instituted the said case by filing a private complaint. Seeking to quash the said case, the petitioners have come forward with these two criminal original petitions.
2. The brief facts of the case are as follows:-
The respondent is an advocate practicing at District Court, Madurai. He claims that he is a regular reader of dailies, including "Tamil Murasu". The daily "Tamil Murasu" dated 26.12.2005, 27.12.2005, 06.01.2006, 16.01.2006, 27.01.2006, 29.01.2006 and 06.02.2006 carried the pictures of the petitioners, which are obscene and lascivious. The complaint further proceeds to say that apart from the filthy portrayal of the petitioners, there were also slogans written, which would arouses insidious feeling corrupting the younger generation. It is also stated in the complaint that the continuous publication of such third rated publications will only help in the promotion of crimes against women and unhealthy social trends and apart from taking legal action against the perpetrators of such social evil confiscation of such pictures, the regulations laid under the provisions of Press and Registration of Books Act 1967 may be resorted to. The complainant further states that the pictures were printed and circulated with filthy slogans by the first accused, who is the Editor and Printer of the daily with the active connivance and co-operation of the people like the accused Nos.2 and 3 and many others.
3. On taking cognizance, the learned Judicial Magistrate recorded the statement of the respondent herein and two of his witnesses. Then, the learned Judicial Magistrate issued summons under Section 204 Cr.P.C. Having received the summons, the petitioners did not appear before the lower Court. Therefore, the lower court issued Non Bailable Warrants against the petitioners for their arrest. The said warrants are pending execution. It appears that the petitions filed by the petitioners before the learned Judicial Magistrate under Section 70(2) Cr.P.C were also dismissed. At this juncture, the petitioners have come forward with these petitions, seeking to quash the above said case.
4. I have heard the submissions of the learned counsel for the petitioners and the learned counsel for the respondent and also carefully perused the materials available on record.
5. Before going into the merits of the contentions of the learned counsel for the petitioners, let me consider the preliminary objection raised by the learned counsel for the respondent. He would submit that the petitioners, against whom N.B.Ws are pending and who have not cared to appear before the lower Court despite the fact that the petitions filed by them under Section 70(2) Cr.P.C were dismissed, cannot be heard to maintain these petitions before this Court. The learned counsel for the respondent would also rely on a Judgment of this Court in Gladya Lilly ..Vs.. The Superintendents, Narcotic Control Bureau, South Zonal Units, Chennai reported in 1999 (2) L.W. (Crl) 814 wherein a learned Single Judge of this Court, while dealing with a similar question has held as follows:-
".... Considering the fact that the petitioner is absconding right from the inception and even after the filing of the charge sheet, has not appeared before the Court coupled with the fact that non-bailable warrant is still pending. I am of the view that the inherent power of this Court under Section 482 Cr.P.C cannot be invoked to consider the case of the petitioner. I am of the view that Section 482 Cr.P.C can be rarely invoked only to prevent abuse of process of any court or otherwise to secure the ends of justice. In the present case, as the accused is absconding from the inception and she is not appearing before the Court, she is not entitled to invoke section 482 Cr.P.C and maintain this petition....."
6. But, the learned counsel for the petitioner would submit that the said view was expressed by the learned Single Judge only in the given set of facts and circumstances of the case and no law has been laid down in the said judgment.
7. In my considered opinion, inherent powers of the High Court under Section 482 Cr.P.C., cannot be either curtailed or reduced or ousted by the act of the parties. Of course, it is true that N.B.Ws are pending against the petitioners for their arrest. But, that by itself would not dis-entitle them to approach this Court under Section 482 Cr.P.C, seeking to quash the case. Admittedly, the petitioners are cine actresses, who are residing in Mumbai. Of course, no one is above the law and so, they should have either appeared before the Court or made an alternative arrangement seeking to dispense with their personal appearance. Their failure to do so cannot be appreciated. But, at the same time, when they have come to this Court with a plea that the case against them is baseless and it is abuse of process of Court, the doors of justice cannot be shut on such a technical ground that N.B.Ws are pending against them. Of course, in the judgment cited supra, the learned Single Judge of this Court has taken the view that such a person, who has not surrendered before the Court, against whom N.B.W is pending, cannot be allowed to enjoy the benefit of any relief under Section 482 Cr.P.C. A careful reading of the above said judgment would go to show that the learned Single Judge has come to the said conclusion only in the given set of facts and circumstances of the case and so, it cannot be construed to be a precedent so as to bind this Court. In the case on hand, even though N.B.Ws are pending against the petitioners, in my considered opinion, the present petitions are maintainable.
8. Now, let me consider the contentions of the petitioners. The main contention is that absolutely there is no material whatsoever on record to show that the pictures of the petitioners were published at the instance of the petitioners. The learned counsel for the petitioners would rely on Section 292 (2) I.P.C and would contend that under the said Provision, it is only the person who 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 is liable to be punished. In this case, admittedly, the person, who published the daily is only the first accused and there is no material whatsoever on record even to make out a prima facie case that the petitioners were responsible for the printing of their pictures, which are said to be obscene, the counsel contended.
9. Per contra, the learned counsel for the respondent would contend that in the complaint itself there is enough allegation that the pictures of the petitioners were published in the tamil daily only with the connivance of the petitioners, which would make out a prima facie case against the petitioners. But, the said contention cannot be countenanced for a simple reason that it is nothing but a vague allegation. A perusal of the statements of the respondent and two of his witnesses recorded under Section 202(2) Cr.P.C would go to show that nothing has been said indicating that the petitioners were responsible for the publication of their pictures in the daily. It is needless to say that for taking cognizance, the contents of the complaint would be sufficient. But, for issuing summons, the Court has to look into not only the contents of the complaint, but also the statements of the witnesses recorded under Section 202(2) Cr.P.C and other documents. Though it is true that there are three accused shown in the complaint and cognizance was also taken in respect of the offences stated in the complaint, on perusal of the complaint and also the statements of the witnesses recorded under Section 202 (2) Cr.P.C., the Court has to necessarily decide as to whom the summons is to be issued under Section 204 Cr.P.C or to dismiss the complaint under Section 203 Cr.P.C. Therefore, there are two judicial functions for a learned Judicial Magistrate, one at the stage of taking cognizance and other at the stage of issuing summons under Section 204 Cr.P.C. While exercising his power under Section 204 Cr.P.C., the learned Judicial Magistrate is required to meticulously scrutinize the materials available on record and to find out exactly as against whom the summons is to be issued. At this juncture, it is worthwhile to refer to the Judgment of the Hon'ble Supreme Court in CREF Finance Ltd., ..Vs.. Shree Shanthi Homes (P) Ltd., and another reported in 2005 (7) S.C.C. 467, wherein the Hon'ble Supreme Court of India has held as follows:-
"....One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint....."
In this case, there may be prima facie case against the first accused and there is no material whatsoever either in the complaint or in the statement of the witnesses recorded under Section 202(2) Cr.P.C, necessitating issuance of summons to the petitioners. Thus, the learned Judicial Magistrate ought not to have issued summons to the petitioners since there is no prima facie case against them. Therefore, insofar as Section 292(2) I.P.C is concerned, I am of the considered opinion that there is no prima facie case against the petitioners, warranting trial.
10. In respect of the offences under Sections 3,4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 also, I find no material against the petitioners. A reading of Sections 3 and 4 of the Act would go to show that the person, who is responsible for publishing the obscene pictures amounting to indecent representation of women in any form is liable to be punished. In this case, as I have already held, there is no material whatsoever to say that the petitioners either published or responsible for the publishing of their pictures, which are said to be indecent representation of women.
11. In respect of the offence under Section 3 of the Young Persons (Harmful Publications) Act, 1956 also, there is no material against the petitioners. The term "harmful publication" is defined under Section 2(a) of the Act, which is as follows:-
"2(a) "harmful publication" means any book, magazine, pamphlet, leaflet, newspaper or other like publication which consists of stories told with the aid of pictures or without the aid of pictures or wholly in pictures, being stories portraying wholly or mainly -
(i) the commission of offences; or
(ii) acts of violence or cruelty ; or
(iii) incidents of a repulsive or horrible nature;
in such a way that the publication as a whole would tend to corrupt a young person into whose hands it might fall, whether by inciting or encouraging him to commit offences or acts of violence or cruelty or in any other manner whatsoever;
(b) "State Government" in relation to a Union Territory, means the administrator thereof;
(c) "Young Person" means a person under the age of twenty years". The allegations made in the present complaint do not fall under anyone of the categories of the definition. Therefore, there is no scope for the offence under this Act, warranting trial against the petitioners.
12. The last contention of the learned counsel for the petitioners is that the pictures found in the tamil daily produced along with the complaint are not obscene. The learned counsel for the petitioners would rely on a Judgment of the Hon'ble Supreme Court in Ajay Goswami ..Vs.. Union of India and others reported in 2007 (1) S.C.C. 143 wherein the Hon'ble Supreme Court has held as follows:-
"75. The definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities. Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions.
79. We are also of the view that a culture of "responsible reading" should be inculcated among the readers of any news article. No news item should be viewed or read in isolation. It is necessary that a publication must be judged as a whole and news items, advertisements or passages should not be read without the accompanying message that is purported to be conveyed to the public. Also the members of the public and readers should not look for meanings in a picture or written article, which are not conceived to be conveyed through the picture or the news item.
81. Therefore, we believe that fertile imagination of anybody, especially of minors should not be a matter that should be agitated in the court of law. In addition we also hold that news is not limited to Times of India and Hindustan Times. Any hypersensitive person can subscribe to many other newspapers of their choice, which might not be against the standards of morality of the person concerned."

13. The term "obscenity" as found in Section 292 I.P.C came to be interpreted by a Constitutional Bench of the Hon'ble Supreme Court in Ranjit D. Udeshi ..Vs.. The State of Maharashtra reported in A.I.R. 1965 S.C. 881 wherein the Hon'ble Supreme Court has held as follows:
"No doubt this article guarantees complete freedom of speech and expression but it also makes an exception in favour of existing laws which impose restrictions on the exercise of the right in the interests of public decency or morality. The section of the Penal Code in dispute was introduced by the Obscene Publications Act, 1925 (VII of 1925) to give effect of the International Convention for the suppression of or traffic in obscene publications signed by India in 1923 at Geneva. It does not go beyond obscenity which falls directly within the words "public decency and morality" of the second clause of the article. The word, as the dictionaries tell us, denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. It cannot be denied that it is an important interest of society to suppress obscenity. There is, of course, some difference between obscenity and pornography in that the latter denotes writings, pictures etc. intended to arouse sexual desire while the former may include writings etc. not intended to do so but which have that tendency. Both, of course, offend against public decency and morals but pornography is obscenity in a more aggravated form. Mr Garg seeks to limit action to cases of intentional lewdness which he describes as dirt for dirt's sake and which has now received the appellation of hard-core pornography by which term is meant libidinous writings of high erotic effect unredeemed by anything literary or artistic and intended to arouse sexual feelings."
14. Few more Judgments relating to the interpretation of the word "obscenity" have also been cited before me. But, for the purpose of deciding the issues involved in these petitions, I deem it unnecessary and also not proper for this Court to give any opinion regarding the pictures of the petitioners published in the daily as to whether they are obscene or not. No doubt, a picture is a document as defined in Section 3 of the Indian Evidence Act. To express any opinion on appreciating any document as to whether it is admissible and if admissible as to whether the picture is obscene or not would fall within the ambit of appreciation of evidence under Section 3 of the Indian Evidence Act. This Court cannot convert it to the level of the Trial Court to look into the document to appreciate and to give a finding as to whether the pictures are obscene or not as defined in Section 292 I.P.C. I apprehend that if any such opinion is expressed by this Court in these petitions, it may tend to influence the mind of the Trial Court, where the trial in respect of the first accused, who has published the pictures of the petitioners in his daily is pending. Therefore, I am of the considered opinion that judicial restraint requires that this Court should not give any opinion regarding the nature of the picture as to whether they would fall within the definition of "obscenity" or not. The said question is left open for the Trial Court to decide.
15. As I have already concluded, the prosecution as against the petitioners is liable to be quashed since even if the materials available on record as of now are admitted to be true on their face value, still there is absolutely no chance for conviction. The Hon'ble Supreme Court in STATE OF HARYANA AND OTHERS ..VS.. BHAJAN LAL AND OTHERS reported in 1992 SUPP(1) S.C.C. 335 has given certain illustrations of circumstances under which a case should be quashed by the High Courts by invoking inherent jurisdiction under Section 482 Cr.P.C, which are as follows:-
" (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge".
16. In the case on hand, as I have already concluded, the materials available on record do not make out any case and allowing the prosecution to continue further against the petitioners would be a wasteful exercise involving public money and precious time of the Court, amounting to abuse of process of Court. Therefore, I have no hesitation to quash the case in respect of the petitioners alone.
17. In the result, these Criminal Original Petitions are allowed and the case in C.C.NO.308 of 2006 on the file of the Judicial Magistrate II, Madurai is quashed in respect of the petitioners (Accused Nos.2 and 3) alone. It is made clear that the Trial Court may proceed with the trial as against the first accused in accordance with law. The connected M.P.(MD)Nos.2+2 of 2006 are closed.
Dpn/-
To:
The Judicial Magistrate II,
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