Judgment:
ORDER
I.S. Tiwana, J.
1. The top brass of the Tribune, a well known English daily newspaper of this region, is accused of offences under Section 292/293 read with Section 34 of the Penal Code on account of the publication of an advertisement regarding an English picture 'Together with Love' being screened at Nirman Theatre, Sector 32, Chandigarh. It was published at page 9 of the issue dt. April 21, 1986. There are two captions to this picture which read 'Most Intimate Scenes Ever Filmed' and 'Secrets of Sex American Style'. Petitioner 1 Mr. O.P. Lamba is the Primer and Publisher of the paper, No. 2 Shri S.D. Bhambri is the General Manager and No. 3 Shri Prem Bhatia is a former Editor-in-Chief and presently a Consultant of the Tribune. The Tribune undisputadly is being run by a charitable public trust for about 100 years by now.
2. The crux of the complaint filed against them by Shri Tarun Menta, Advocate of Ambala Cantt. is that the picture printed at page 9 of the paper, as referred to above, excites impure thoughts in the minds of ordinary people of normal temperament who look at it and the two captions, appended to the picture also are likely to influence the mind of the younger generation who easily fall prey to these libidinous appeals as a result of which they are tempted to go and see the obscenely advertised picture in the cinema hall. The allegation further is that the petitioners as also the General Manager of the Nirman Theatre are guilty of printing the said obscene photo in the newspaper and the remarks thereon and have also sold the newspaper publicly with a view to put the picture into circulation and to earn profits from this business. The trial Magistrate Shri G.S. Kotla, after recording the statements of the complainant and another witness, namely, Shri Jaswant Singh, Advocate of the same place i.e. Ambala Cantt. has summoned the petitioners to stand their trial for the above-noted offences vide his impugned order dt. Aug 6, 1986. The material part of this order reads:
On perusal of the contents of the complaint, supported by two respectable persons, who are Advocates, the ingredients of Sections 292 and 293, Penal Code and read with Section 34, Penal Code, are fully satisfied. There is no reasons as to why, the sworn testimony of both the respectable persons should be disbelieved. 1 have also seen picture mark 'A', which was published by the accused persons in the Tribune English newspaper dt. April 21, 1986.
3. The stand of Mr. Jagan Nath Kaushal, the learned Sr. counsel for the petitioners is that firstly the picture besides being vague is smudged one and hardly conveys anything; secondly the allegation that the picture is in any manner obscene and lascivious and tends to deprave or corrupt those who are likely to see is only a figment of the complainant's imagination and thirdly the advertisment in question was accepted and published by the Tribune office in the ordinary course of business without any pre-knowledge of the petitioners. He submits with some amount of vehemence that the filing of the complaint and the continuation of the proceedings against the petitioners is nothing but misuse of the process of the Court. He prays that the complaint and the resultant proceedings deserve to be quashed in exercise of inherent powers of this Court under Section 482 of the Criminal P.C. Having given my thoughtful consideration to the entire matter in the light of the submissions of the learned Counsel for the parties. I see much merit in the stand of the petitioners' counsel.
4. The photograph marked 'A' is totally smudged and indecipherable. Except the face of a woman, nothing else can be made out even with a magnifying glass. Even the learned Counsel for the respondent when confronted could hardly express anything material for the purposes of this case. In view of this, it is impossible to hold that this picture can be any incentive to sensuality or can excite impure thoughts in the minds of ordinary persons of normal temperament who may happen to took at it. 1 am of the considered view that for the purpose of testing whether a picture is obscene or not, one has hardly to depend upon any oral testimony. What has to be considered is to a great extent the surrounding circumstances such as the pose, the posture, the suggestive element in the picture and last of all the person or persons in whose hand it is likely to fall. This picture, as already opined, hardly conveys anything except that one can see the face of a woman and that too with an effort. None has so far attempted to define obscenity. However, the test of obscenity, as laid down in-Queen v. Hicklin (1868) 3 QB 360 and accepted by the Supreme Court of India in Ranjit D. Udeshi v. State of Maharashtra : 1965CriLJ8 , is:
whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral infleances, 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 persons of more advanced years, thoughts of a most impure and libidinous character.
The above-noted picture does not meet this test at all. In the present day society in India, a book, picture or a publication which deals with such matters cannot per se be said to be obscene. Great emphasis is being laid on family planning and in that connection it has become absolutely necessary to impart education about sex to the masses. It is a matter of common knowledge that there is even a thinking to introduce sex education as one of the subjects to be taught to the younger generation.
5. Another aspect of the matter of which the Court appears to have remained completely oblivious of is that the film 'Together with Love' which has been advertised through this publication has not at all been characterised as obscene. As a matter of fact, it is not indicated any where or urged that the complainant has seen this picture at all. Besides this, this film before its exhibition must have been subjected to a certificate of the Board of Censor under the Cinematograph Act, 1952. Law presumes the regular performance of all official acts. 1, however, do not suggest, even for a moment, that the grant of such a certificate debars the court from judging the obscenity of a film being exhibited publicly or that the certificate of the Board of Censor is conclusive; yet it can also not be lost sight of that such a certificate is the opinion of a high powered Board specially entrusted to screen off the silver screen pictures which offensively invade or deprave public morals through over-sex. All I mean to say is that rebuttable presumptions which arise in favour of the statutory certificate can be negatived by positive evidence. No such evidence was before the Court at the time of passing the impugned order dt. August 6,1986, directing the petitioners to come and face the trial. I am, therefore, of the view that the trial Magistrate should not have normally brushed aside what another Tribunal 'for similar purpose' has found.
6. Still further, what is uttely lacking in the case is the mens rea on the part of the petitioners. It is settled law that unless a statute either clearly or by necessary implication rules out mens rea as to constitute part of the crime, nobody can be found guilty of an offence under the Criminal law unless he has got a guilty mind. Mens rea, of course, can be proved by circumstantial evidence. In the instant case, as has been pointed out right in the beginning, the petitioners who are in the top' achelons of the organisation that publishes the daily paper are hardly concerned with the day to day working of the same. It is elementary that such like advertisements are received in the office of the Press in the ordinary course of business and are printed and published on the payment of prescribed rates. No allegation has been made on behalf of the complainant much less supported by any evidence that the petitioners were at any stage made aware of the printing and publication of this advertisement any time prior to the date i.e. April 21, 1986. It was opined as early as the beginning of this century in Mumtaz Ali v. Emperor 1905 Pun Re 35 that the mere fact that a person is proprietor and publisher of a newspaper is not sufficient to render him criminally liable in respect of matter inserted therein by one of his servants. There must be a distinct finding that the matter complained of was inserted by the order or owing to the negligence of the proprietor.
7. In the light of the discussion above, 1 am satisfied that the very complaint and the continuation of the proceedings as a result thereof is misuse of the process of the Court.
8. In order to be fair to Mr. Mehtani, the learned Counsel for the other side, it may be noted here that he at one stage challenged the very maintainability of this petition. He urged that as a remedy was available to the petitioners in the light of Sub-section (2) of Section 245 of the Criminal P.C. this Court should not invoke its inherent powers under Section 482 of the Criminal P.C. To be specific, the objection of Mr. Mehtani was that the petitioners were entitled to convince the trial Magistrate even at this stage of the case that the charge against them was groundless and that they were entitled to be discharged. To reinforce this objection, he even made a reference to an earlier decision of mine in Criminal Misc. No. 2690-M of 1986 (Anil Kumar v. State of Punjab) dt. Jan. 13, 1987, (Reported in (1987) 1 All Cr LR 71 (Punj & Har).) wherein I had opined that after the submission of a police report under Section 173 of the Code of Criminal Procedure, if the accused were of the opinion ,that no case against them was made out they could urge so before the trial Magistrate in the light of the provisions of Section 239 of the Code and this Court would not invoke its jurisdiction under Section 482 of the Criminal P.C. and convert itself into a trial Court. Though as has been opined by their Lordships of the Supreme Court in Raj Kapoor v. State (Delhi Administration) : 1980CriLJ202 availability of a remedy can by itself be no bar to the invocation of the inherent jurisdiction under Section 482 of the Criminal P.C. yet I find that the facts in the instant case are materially different from what they were in Anil Kumar's case (supra). In that case, the petitioners had approached this Court before the expression of any opinion by the Magistrate i.e. just after the submission of the report under Section 173 of the Criminal P.C. by the police. In the case in hand, the Magistrate has already expressed, though prima facie, in the light of the contents of the complaint and the evidence produced by the complainant that the photo in question was obscene and the petitioners deserve to be proceeded against on that account. It cannot reasonably be expected that they would be able to convince the trial Magistrate even before the recording of any further evidence in the case that the charge against them is groundless, I, therefore, decline to accept the objection raised by Mr. Mehtani by way of preliminary objection.
9. For the reasons recorded above, this petition is allowed and the proceedings before the trial Court, including the complaint are quashed.