Aveek Sarkar and Anr vs State of West Bengal and Anr

Case Name : Aveek Sarkar and Anr vs State of West Bengal and Anr

Author : Darshi Sanghvi

BENCH

K.S. Radhakrishnan, A.K. Sikri

INTRODUCTION

In the present case of Aveek Sarkar and Anr vs State of West Bengal and Anr, an Advocate challenges the publication of a picture of the famous Tennis player Boris Becker and his dark-skinned fiancée Barbara, in which he is posing nude, with hands covering her breasts, on the grounds that it is obscene. In light of the facts, the case seeks to determine the true meaning of the term “obscenity”.

FACTS

A picture of the world-renowned Tennis player Boris Becker and his dark- skinned fiancée, film actress Barbara Feltus was published in “STERN”, a German magazine and later, in “Sports World”, a widely circulated magazine in India and “Anandabazar Patrika”, a widely circulated newspaper in Kolkata. An advocate and a regular leader of both, the magazine and the newspaper, filed a Complaint before the Sub-Divisional Magistrate at Alipore against the appellants (the Editor, Publisher and Printer of the newspaper and the Editor of the Sports World), under Section 292 of the IPC on the grounds that it would wrongly influence or in other words, corrupt the young minds.

He further stated that such uncensored pictures and unpunished accused lower the dignity of womanhood at large. The complainant thus proposed that the accused be prosecuted under Section 292 IPC as well as  Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.

The Magistrate held the accused persons to be examined under Section 251 Cr.P.C. and directed that they must face the trial for the offence punishable under Section 292 IPC and under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986, as a result of which the appellants moved the HC for quashing the proceedings. This appeal has been filed following the denial of the HC in doing so.

ISSUES AND FACTS OF LAW

• Whether the publication and the photograph can be considered obscene.

• Whether the publications have the capacity to corrupt young minds and ignite sexual passion within the people who happen to read them.

• Whether the Magistrate and the High Court were correct in their decisions.

• Whether proceedings can be initiated against the appellants under Section 292 of IPC  or Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.

JUDGEMENT

It can be held that no offence had been committed under Section 292 of IPC and its inclusion in the first part of Section 79 IPC is academic.

The fact that the picture conveys the message that skin colour is insignificant, and love prevails over colour must be acknowledged. Hence, the picture and article published by Sports World and Anandabazar Patrika cannot be considered to be objectionable in a way that proceedings can be initiated under Section 292 of IPC or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.

The Magistrate attempted to initiate prosecution proceedings against the appellant without proper application of mind. The HC should have secured the ends of justice by exercising powers under Section 482 Cr.P.C.

In light of the aforementioned facts of the case, the appeal stands allowed and the criminal proceedings carried out against the Appellants herewith are thus set aside.