ORDER
Sunil Kumar Sinha, J.
1. Whether the advertisement (contained in Annexure-A) amounts to indecent representation of women as defined under The Indecent Representation of Women (Prohibition) Act 1986, is a question for consideration in this petition ?
2. The brief facts are that an advertisement was published in Daily Navbharat, Hindi Edition, Raipur, on 24th April 1996 which relates to some oil and capsule shown to be useful to strengthen the nerves. Their names are shown as Kama Sutra Tel and Kam Sutra Capsule. The names of the stockiest/medical stores at Raipur, Durg, Bhilai and Rajnandgaon are also published. On one side of the publication, a half size standing photograph of a woman is shown taken in lap of a man from side pose. This was taken as an offending depiction by the complainant/respondent No. 1 herein, who filed a criminal complaint in the Court of Judicial Magistrate First Class, Dhamtari, Distt. Raipur (M.P.), now Chhattisgarh, under Section 3/6 of The Indecent Representation of Women (Prohibition) Act 1986 (hereinafter referred to as the Act). The Magistrate took cognizance in the matter and after registration of the case under the aforementioned provisions of the Act, issued notices to the petitioner who is Editor, Publisher and Printer of the aforesaid Newspaper. The petitioner appeared before the trial Court, filed his bail bond and simultaneously he also filed this petition Under Section 482 of the Cr. P.C. for quashment of the. proceedings of said Criminal Case No. 701 /1996 pending in the Court of Judicial Magistrate, First Class, Dhamtari.
3. Shri B. D. Guru, learned Counsel appeared for the petitioner and Shri D. K. Gwalre, learned P. L. appeared for the State. However, no one appeared for respondent No. 1 though served. I have heard learned Counsel for the parties at length.
4. Shri Guru submitted that even after admitting the contents of the entire complaint along with the document annexed therewith, no offence under the aforesaid Act is made out. He further submitted that this Court may also ascertain on the basis of the photograph that it does not offend the provisions of Section 3 of the Act. He also submitted that if this Court comes to the conclusion that the publication does not offend any of the provisions, referred to above, the complaint is to be quashed as if the same is allowed to be proceeded, will amount to waste of judicial time and an abuse of process of Court. On jurisdiction, he referred to a decision of the Apex Court rendered in the matter of Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre reported in : 1988CriLJ853 . On merits he referred to the decision of the Supreme Court rendered in the matter of Chandrakant Kalyandas Kakodkar v. State of Maharashtra : 1970CriLJ1273 .
5. The Apex Court held in Madhavrao's case (1988 Cri LJ 853) (supra) that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. The Apex Court further held that it is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. The Apex Court held that this is so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage,'
6. Recently in the matter of Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque : 2005CriLJ92 , the Apex Court held that the Inherent Jurisdiction Under Section 482 of Cr. P.C. though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in Section 482. The power is to be exercised ex debito justitlae to prevent abuse of process of Court, but it should not be exercised to stifle legitimate prosecution. This decision refers to the matter of State of Haryana v. Bhajan Lal 1992 Suppl (1) SCC 335 : 1992 Cri LJ 527 which deals with the scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice. It referred to the note of caution added that the power should be exercised sparingly and that too in rarest of rare cases. The Illustrative categories indicated vide para 102 in the said case are mentioned hereunder:
102(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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fides 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.
7. Hence, in the light of the above legal position, it is well settled that the powers under Section 482 can well be exercised for quashing of a criminal complaint, though sparingly and carefully, in the appropriate cases with due caution when such exercise is justified in the prevailing facts and circumstances of the case and one of the underlying principles 18 that the Court cannot be utilized for any oblique purpose.
8. Therefore, so far as the present case is concerned, the situation emerges that if on examination, this Court comes to the conclusion that the publication does not offend any of the provisions mentioned herein-above, the complaint has to be quashed as the prosecution of it, if allowed will amount to a waste of judicial time and an abuse of process of Court. However, at the same time, if this Court comes to the conclusion that prima facie material is there, offending the provisions of the aforesaid Act, the prosecution cannot be quashed exercising jurisdiction Under Section 482 of Cr. P.C.
9. For examining the matter on merits certain principles are required to be looked into. The Apex court while dealing with a matter under Section 292, IPC in C.K. Kakodkar's case (1970 Cri LJ 1273) (supra) held that the question whether particular article or story or book is obscene or not does not altogether depend on oral evidence because it is the duty of the Court to ascertain whether the impugned material offends the provisions of Section 292. It further held that what is obscenity has not been defined either in Section 292, IPC or in any of the statutes prohibiting and penalizing, mailing, importing, exporting, publishing or selling of obscene matters. It is the duty of the Court to consider the obscene matter by taking an overall view of the entire work and to determine whether the obscene passages are so likely to deprive and corrupt those whose minds are open to such influences and in whose hands the book in likely to fall and in doing so one must not over look the influence of the book on the social morality of our contemporary society. In para 13 or the aforesaid judgment, the Apex Court held that the concept of obscenity would differ from country to country depending on the standards of morals of contemporary society. What is considered as a piece of literature in France may be obscene in England and what is considered in both the countries as not harmful to the public order and morals may be obscene in our country. The standards of contemporary society in India are also fast changing. The adults and adolescents have available to them a large number of classics, novels, stories and pieces of literature which have contents of sex, love and romance. In the field of art and cinema also the adolescent is shown situations which even a quarter of century ago would be considered derogatory to public morality, but having regard to changed conditions are more taken for granted without in any way tending to debase or debauch the mind. The Apex Court guided that what a Court has to see is that whether a class, not an isolated case, into whose hands the book, article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. The charge of obscenity must, therefore, be judged from this aspect.
10. In English Law, test of obscenity is now laid down in Section 1 of the Obscene Publication Act 1959. For the purposes of this Act, an article shall be deemed to be obscene, if its effect is, if taken as a whole, such as it tend to deprave and corrupt persons - who are likely having regard to all circumstances, to read it. In Australia, the offence of obscenity is one against public morality. However, in Canadian Law, the word obscene was originally used to describe anything disgusting, repulsive, filthy or foul.
11. In : 1965CriLJ8 (Ranjit D. Udeshi v. State of Maharashtra) the Supreme Court quoted with approval a passage of Cockburn, C.J. in Hicklin case which laid down the test of obscenity. The Hon'ble Court laid down that the test of obscenity is whether the tendency of the matter charged as obscene 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. It is quite certain that it would suggest to the minds of the young of either sex, or even to person of more advanced years thoughts of most Impure and libidinous character.
12. If we examine the Act in question, Section 3 of the Act in nutshell prohibits for publication or causing for publication or arranging or taking part in publication or exhibition of any advertisement which contains 'indecent representation of women' in any form. The expression 'indecent representation of women' has been defined in Section 2(c) of the Act which reads as under:
2. Definitions - In this act, unless the context otherwise requires,-
(a) and (b) xxx xxx xxx
XXX
(c) 'Indecent representation of women : means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals:
(d) to (f) xxx xxx xxx xxx
The key word used by the Legislature in the aforesaid Act of 1986 is 'indecent'. What is meant by it the ordinary dictionary meaning of this word 'indecent' is given as 'not decent', 'unfit to be heard or seen'. In Blacks Dictionary, 7th Edition, the word 'indecency' has been defined as 'the condition or state of being outrageously offensive especially in a vulgar or sexual way'. The distinction between 'indecency' and 'obscenity' has been explained by Parker L.C.J. in the case of Stanley 1965 (49) Cr App R 1975 (Eng CA) at pp. 180, 181 as under:The words 'indecent' and 'obscene' convey one idea, namely, offending against the recognized standards of propriety, indecent being at the lower end of the scale and obscene at the upper end of the scale - an indecent article is not necessarily obscene, whereas an obscene article almost certainly must be indecent.
13. A reference may also be made to the case of Bobby Art International etc. v. Ompal Singh Hoon : AIR1996SC1846 . In this case, the subject-matter was a well known Hindi film. 'Bandit Queen'. The Apex Court while dealing with the matter observed that a film that illustrates consequences of a social evil necessarily must show that social evil. No film that extols the social evils or encourages it is permissible, but a film that carries the message that the social evil is an evil cannot be made impermissible on the ground that it depicts the social evil. In this film, a village born female became a dreaded dacolt. There were scenes of her being humiliated, stripped naked, paraded, made to draw water from the well within the circle of a hundred men. The exposure of her breasts and genitals to those men is intended by those who strip her to demean her. Ultimately by setting aside the Judgment and order under appeal, the Apex Court restored the validity of 'A' certificate issued to the film 'Bandit Queen' upon the conditions imposed by the Appellate Tribunal.
14. By applying all these principles, it is to be Judged as to whether the advertisement contained in Annexure 'A' is the indecent representation of women as defined in the Act? If we carefully examine the picture, it would appear that the same is a side pose picture of a woman showing her in the lap of a man. It is a half size hypothetical photograph, black and white dotted. Only half of the left arm of the woman is visible. As such, there is no exposure of her breasts and genitalia. The picture has been printed for advertisement of the above oil and capsule showing them to be useful to strengthen nerves and to remove weakness. The entire scenario along with the circumstances around it would suggest that for promoting the sale of the aforesaid products through various medical shops at different places, such an advertisement was published along with the above hypothetical dotted form picture.
15. In view of the changed scenario of the society where the sexual literacy is also a part of modern human life, such depictions does not carry much weight to classify them to be indecent or derogatory to or denigrating the women or likely to deprove, corrupt or injure the public morality of morals. That is more so, because the present depiction will fall in simple category among what has already been available to the society at large though the print and electronic media is much more higher than what has been depicted in the case in hand along with the overall surrounding circumstances.
16. Considering the facts and circumstances of this case, in the opinion of this Court, on the above principles, no useful purpose is likely to be served by allowing the criminal prosecution to continue in this matter. The proceedings of Criminal Case No. 701 / 1996 (P.S. Deevan v. Baban Prasad Mishra) are quashed.
The petition is allowed.