Kerala High Court
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Kerala High Court: Mohammed Nias C.P., J., quashed the proceedings against the petitioner for obstructing a police officer from performing his duty. Rejecting the allegation of obscenity against the petitioner for abusing and using humiliating words against the Police officer, the Bench clarified,

“It is to be noted that the test of obscenity under Section 294 (b) of the Indian Penal Code is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.”

Facts of the Case

The petitioner was accused of committing offence under Sections 283, 294 (b) of Penal Code, 1860 and under Section 117 (e) and 120 (b) of the Kerala Police Act, 2011. The allegation against the petitioner was that while one Unnikrishnan, Civil Police Officer was pasting a sticker on a car which was parked near the “No Parking Board” as a part of his traffic duty, as the car was causing obstruction to the movement of the vehicles, a man in white shirt came and pushed him, angrily shouted him and threatened the CPO and swirled abuses on another Civil Police Officer, one Madhu who was with him.

It was alleged that the complainant was doing his official duty of affixing stickers on the Car and the petitioner caused obstruction to his duty and insulted the Police officer in public.

The petitioner challenged the final report and all proceedings on the ground that it had been submitted by the Assistant Commissioner of Police (Special Branch) before the Kerala States Human Rights Commission that there was a lapse on the part of the police which resulted in the petitioner acting against the officer, as the Civil Police Officer Madhu was in plain clothes and not in his uniform and he was posting sticker on his car. The petitioner contended that not aware of the fact that it was a civil police officer, he had bonafidely questioned the authority of the person.

Opinion and Analysis

Section 117 (a) of the Act, 2011 speaks of threat, obstruction or assault against the police officer with the manifest intention of preventing such officer from discharging his duties.

Noticing that it was undisputed that the Civil Police Officer was not in his uniform, the Bench opined that there was no question of the petitioner knowing that he was a police officer and as a sequel since there was no such knowledge, there could not be any intention for preventing the police officer from discharging his duties. Hence, the Bench held that no offence was made out under Section 117(e) of the Police Act. With regard to the offences alleged under section 283 IPC as well as 120(b) of the Kerala Police Act, both of which deals with penalty for causing nuisance or obstruction to public by any person in charge of the vehicle, the Bench held that since the petitioner had already remitted the fine imposed for parking the car in a “No Parking Area” no further penalty or punishment was warranted.

Abusive Words v/s Obscenity

Noticeably, the complaint, statements and the final report did not mention exactly as to the words or statement uttered by the petitioner so as to warrant attracting ingredients of offence under Section 294 (b) of the Penal Code, 1860. Hence, the Bench held that absence of words which would involve some lascivious elements arousing sexual thoughts or feelings or words cannot attract the offence under Section 294 (b). As none of the records disclosed the alleged words used by the accused, the Bench stated that mere abusive, humiliating or defamative words by itself cannot attract an offence under Section 294 (b) Penal Code, 1860.

Mandatory for Police Officials to be in Uniform

Emphasising on the necessity of the police force to wear the uniform while in duty, the Bench stated that the uniform of a police man is his direct identification as a policeman in uniform is visible and a citizen immediately knows that he is a police man which will inform that the said individual is in charge of his protection and prevention of offences.

Considering the instances where the Court itself had to remind the police officers to appear in the Court in full uniform in the course of their official duty, the Bench stated that the requirement of the police officer to wear uniform while in duty is to be enforced without exception in compliance with Sections 43 and 44 of the Kerala Police Act which states that the uniform or the vehicles used by the police that it has to be distinctive, exclusive and easily identifiable.

Conclusion and Directions

Opining that the continuance of the proceedings will be a sheer abuse of the process of the court, as no purpose will be served by a trial in the aforesaid circumstances and to secure the ends of justice, the Bench quashed the final report along with the proceedings.

Additionally, the Bench directed the State Police Chief to look into the matter and issue appropriate directions to ensure that the police officers comply with the relevant statutory provisions/guidelines making it mandatory to wear the uniform while on duty except when it is permissible under law to deviate from the said mandatory requirement. The Registry was directed to send a copy the judgment to the State Police Chief for necessary and further to submit an action taken report before the Registry within four months. [Avinash v. State of Kerala, 2021 SCC OnLine Ker 4155, decided on 05-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Advocate Thiyyannoor Ramakrishnan, Advocate Arun Kumar.P and Advocate Ambika Radhakrishnan

For the State of Kerala: Public Prosecutors, A.S. Dheeraj & Smt. Maya M.N.

Case BriefsHigh Courts

Madras High Court: The Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., while addressing the instant matter ordered an Interim direction directing the respondents to restrain the TV channels from telecasting obscene and vulgar programmes and Advertisements.

Telecast of vulgar and obscene programmes and advertisements

The instant petition was filed to seek direction for respondents to take immediate and effective steps including monitoring, prosecution, pre-censorship, etc. against the television channels and cable operators regarding, telecast of vulgar and obscene programmes and advertisements violating the programme code and advertisement code and other penal laws etc., and create adequate and easily accessible effective complaint Redressal Mechanism for lodging complaint and immediate redressal regarding telecast of vulgar and obscene programmes and advertisements in television.

Bench was shocked to note that in the television, about 10 p.m. all the television channels telecast some advertisements, which exhibit obscenity to promote the sale of condoms, which in fact, are being viewed irrespective of the age and absolutely available in all television channels.

Anybody who sees these programmes will be shocked by the pornographic content.

Nudity is exhibited in advertisements, which is punishable under Section 16 of the Cable Television Network (Regulation) Act, 1995. Firther, it was also stated that. as per Rule 7(1) of the Cable Television Network Rules, 1994, the programmes telecast should not offend “morality”, “decency” and “religious susceptibilities” of the subscribers.

As per Rule 7(2) (vi), the Cable Operators shall ensure that the portrayal of the female form, in the programmes carried in cable service is tasteful and aesthetic and is within the well established norms of good taste and decency.

However, in the programmes/advertisements, which are telecasted in the television in the name of selling condoms and aphrodisiacs, inner wears are in violation of the Cable Television Network Rules, 1994.

Minds of Youngsters and Children

Nudity is available in the name of Doctor’s advice as well as advertisements and it is freely available and is being viewed by all including the children.

Interest of justice requires to issue a direction as prayed for and also to safeguard the children and women, therefore interim direction restraining the telecast of vulgar and obscene programmes and advertisements violating the programme code and advertisement code and other penal laws etc., has been ordered.

Ministry of Information and Bradcasting gave it’s response as follows:

“…all programmes and advertisements telecast on private satellite TV Channels should be in conformity with the prescribed Programme and Advertising Codes enshrined under the said Act and the Rules thereunder, which contain a whole range of parameters to regulate programmes and advertisements. Appropriate action is taken as and when violation of said Codes is established.”

Court observed that there is no censorship for the advertisements and programmes which are being telecasted on Satellite TV Channels.

In view of the said, respondents should answer on the censorship of programmes telecast of satellite TV channels as contemplated under Section 5(A) of the Cinematographic Act 1952.[K.S. Sagadevaraja v. Secy., Ministry of Information and Broadcasting; WP (MD) No. 16087 of 2020, decided on 11-11-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: P. V. Kunhikrishnan, J., addressed a matter wherein a mother uploaded a video on social media wherein she was getting painted by her two minor children and the purpose to do so was to teach sex education to them. In the said matter, Court made the observation that,

“If the mother would have done the same act without uploading the video on social media, it would have been still understood and not considered an offence, which is not the case now.”

Petitioner a mother of two minor children asked them to paint her naked body above the navel. The video was recorded of the said act and uploaded on social media with the heading — “Body Art and Politics”.

Child Pornography

Cyber dome, Kochi City Police on discovering the said video submitted the report before the Inspector General of Police and Commissioner of Police, Kochi stating the said to be “Chid Pornography related crime” on social media.

The said offence was registered under Section 13, 14 an 15 of the Protection of Children from Sexual Offences Act, 2012 and under Section 67 B(d) of the Information Technology Act, 2000 alongwith the allegation of Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Battle against body discrimination

Petitioner’s submission is that she is an Activist and has been fighting her battle against body discrimination. The petitioner submitted that, it is her firm belief that, there needs to be openness so far as the discussion on body and body parts is concerned, and there is nothing to be hidden within and outside the family about the same. According to the petitioner, the children should be given sex education, and they also need to be made aware of the body and body parts as well. In which event, they would mature themselves to view the body and body parts as a different medium altogether rather than seen it as a sexual tool alone.

Petitioner added that,

“…morality of the society and public outcry cannot be a reason and logic for instituting a crime and prosecuting a person.”

A write up was also added with the said video, according to which the intention of the petitioner was clear and hence in view of the same no offence could be made out against the petitioner.

A small snapshot of the written text by the petitioner:

“In a moral fascist society that look towards the female body as mere illusions. Exposing the views which the society seek to conceal is also a political Act. In today’s society where a female is restricted or Censored from opening her mouth or utter a word with regards to Nudity or Sexuality, brave political act against it is what time demands. When Compare to Male body, Feminine body and her Nakedness has been considered as a mere 55kg of Flesh is just because of the wrong Sexual Education put forward by our society. Society has Customized the Mindset of people in such a way that while looking at a woman who wear a legging make you Sexual arousal whereas the man Stands Macho with his Chest-Hair Exposed as well as showing naked legs by folding the dhoti he wears as a statuesque, doesn’t Connect to Sexual Arousal is just because of the wrong sexual consciousness that is currently being injected by the society. Just as beauty is in the eye of the beholder, so is obscenity in the eyes of the beholder.”

Petitioner’s counsel relied on the judgments of the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) and in Samaresh Bose v. Amal Mitra [(1985)4 SCC 289] to contend that, there is no indecency or obscenity even if the entire allegations against the petitioner are accepted.

Decision of the Bench

Court stated that according to the petitioner she was teaching sex education to her children by uploading the video. It added that if the mother was doing these activities inside the four walls of her house the situation could have been understood, as it is the freedom of every mother to teach sex education according to her will if it is not forbidden by law.

“Whether such a video can be uploaded in social media and the petitioner can escape by saying that she was trying to teach sex education to all children is the question to be decided.”

“Whether any offence is attracted in such cases, is the question.”

In accordance to Section 13 of the POCSO Act, whoever uses a child in any form of media for the purpose of sexual gratification, it is punishable under Section 14 of the Act.

Main ingredient of the above Section:

“…the child should be used in any form of medium for the purpose of sexual gratification.”

Prima facie, Court was of the opinion that the petitioner used the children for the purpose of sexual gratification because the children are represented in the video uploaded in an indecent and obscene manner because they were seen painting the naked body of their mother.

Court on watching the video states that the expression of the mother when both the children painted her breast was also important — Whether that amounts to the use of the children for the purpose of sexual gratification can be finally decided only after a custodial interrogation of the petitioner.

Bench further adds that, the Explanation to Section 13 clearly states that the expression of ‘use a child’ shall include involving the child through a medium like print, electronic, computer, or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of pornographic material.

In view of the above Court stated that it is not a position to say that no offence under Sections 13,14 and 15 of the POCSO Act is attracted.

Section 67B(d) of Information Technology Act, 2000

Section 67B(d) of the Information Technology Act says that whoever facilitates abusing children online shall be punished. Petitioner asked her children to paint on her naked body. Thereafter, the petitioner uploaded the video in social media, hence in view of the said, in Court’s opinion, prima facie it cannot be ruled out that no offence under Section 67B(d) of Information Technology Act, 2000 is made out.

Investigating Officer shall investigate upon such matters as stated above.

Bench in view of the above stated that,

After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video.

Bench on applying its judicial mind stated that it is not in a position to say that there was no obscenity in the video and added that the said observation was only for the purpose of present bail application.

While parting with the present order, Court added to its conclusion that,

The children are not born with a moral compass and it is the job of parents, especially of the mother, to build that compass for them. Be responsible enough to teach and demonstrate the values that your kids need in order to grow up as decent human beings.

“…in the initial years, what the child learns from their mother will always have a lasting impression on their mind. It is usually said that, the mother will be the window of the child to the world.”

The petitioner feels that, she should teach sex education to her children. For that purpose, she asks her children to paint on her naked body and then uploading the same in social media. I am not in a position to agree with the petitioner that she should teach sex education to her children in this manner.

In view of the above Court dismissed the bail application of the petitioner. [Fathima A.S. v. State of Kerala, 2020 SCC OnLine Ker 2827, decided on 24-07-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court:  In its well-wrought judgment, the Division Bench comprising of Antony Dominic, C.J. and Dama Seshadri Naidu, J. observed that “shocking one’s morals” is an elusive, amorphous and protean concept in following words: “What may be obscene to some may be artistic to other; one man’s vulgarity is another man’s lyric, so to say.”

In this case, the petitioner fouled at and drew the Court’s attention to the cover page of a magazine depicting a mother feeding her baby, exposing her bosom. The caption in translation read “Don’t stare, we have to breastfeed.” The petitioner contended that the over page offended Sections 3(c) and 5(j), III of the Protection of Children from Sexual Offences Act and Rules, as well as Section 45 of the Juvenile Justice Act. He has also roped in Sections 3 and 4 of the Indecent Representation of Women (Prohibition) Act, 1986, and Article 39(e) and (f) of the Constitution.

Speaking for the Bench, Naidu, J. observed that Indian psyche has been so mature for ages that it could see the sensuous even in the sacred by giving example of the paintings in Ajanta. The Court while quoting William Dalrymple agreed that sensuous and sacred are one and the sensuous is seen as an integral part of the sacred. Court referred to Renjith D. Udeshi v. State of Maharashtra, AIR 1965 SC 881 wherein context of Article 19(2), the Supreme Court has defined obscenity to mean offensive to modesty or decency; lewd, filthy, and repulsive. The High Court noted that Article 19(2) aims at maintaining only public order, decency, or morality, the last two of which are elastic. Article 19(1) has no public interest exception. Court opined that obscenity is a weapon of cultural regulation.

After referring to various other judgments, the Court finally directed the course of its discussion to Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257 where the Apex Court had said that a picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of depravity of 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.

By applying the same test, the Court concluded that the petitioner had failed to convince that the respondent publishers had committed any offence affecting the society’s moral fabric, and offending its sensibilities. [Felix M.A. v. P.B. Gangadharan, W.P.(C) No. 7778 of 2018, dated 08.3.2018]

Case BriefsHigh Courts

Madras High Court: While deliberating over the conflict between freedom of expression of a writer and offending moral and religious sentiments of the public, the Division Bench of S.K. Kaul, C.J., and Pushpa Sathyanarayana, J., upheld the artistic freedom of the writer under Art. 19(1)(a) of the Constitution and further set out guidelines for the State for dealing with similar cases, and also directed the setting up an expert body. In the judgment for the Tamil novel, ‘Madhorubagan’ by Perumal Murugan, the Court stated that there is no necessity in warranting any action against the author or the publisher of the novel. .

The award winning novel which revolves around the trials and tribulations of a childless couple, and other ancient social customs of the town of Tiruchengode (the author too belongs to Tiruchengode), came under fire from the public due to its alleged obscene contents offending the religious sentiments of the Tiruchengode townspeople. Certain factions raised their voice against the author, that he had defamed the womenfolk and the community of Tiruchengode. The virulent campaign did not die down even after the author issued a written apology and volunteered to withdraw all copies of the novel. Peace talks were held under the directions of the District Revenue Officer and the Inspector of police, where the author had to sign an “unconditional apology’. Agonized by the events, the author wrote his own “obituary as a writer” on social media, volunteering to withdraw all copies of his books and asking people who bought his books to burn them while he would make good the loss suffered.

A batch of petitions were filed in the matter, where the ‘opponents’ demanded a ban of the novel on the grounds of obscenity, defamatory and hurtful to the religious sentiments of townspeople, and demanded that criminal proceedings be initiated against the author and publisher. While the ‘sympathizers’ pleaded to uphold the creative freedom of the writer.

Perusing the controversy and the arguments for and against the book, the Court, referred to the decisions in Phantom Films Pvt. Ltd. vs. The Central Board of Film Certification, 2016 SCC OnLine Bom 3862 and M.F. Hussain v. Rajkumar Pandey 2008 SCC OnLine Del 562  the bench held that the ‘community standard test’ should involve standard prudence and not sensitivity, and the freedom of speech of an artist must be protected. The Court in its judgment showed concern over the State’s management of the situation and even set out guidelines urging the Government to step in to protect the artictic freedom of the people. It was further observed that extra-judicial, casteist and religious forces dictating the creativity of authors and writers should not be allowed. It was directed that the Government should constitute an expert body consisting of learned academicians etc. so that they can deal with situations arising from such conflicts of views. Following the references and the observations, the Court held that there was no ground for police against the author and/or the publishers. The bench concluded the 160-paged judgment quoting that “Let the author be resurrected to what he is best at. Write.” [S. Tamilselvan v. Government of Tamil Nadu 2016 SCC OnLine Mad 5960, decided on 05.07.2016]

Case BriefsHigh Courts

Bombay High Court: While allowing the criminal revision application filed by well known actress Mallika Sherawat, A.B. Chaudhari, J. established the rule that order of issuance of process u/s 204 of Cr.PC must be passed by a District Court only after existence of “sufficient grounds” have been established. An order of issuance of process must precede the application of mind to the law. The Court also invoked its revisionary jurisdiction u/s 397 Cr.PC against the issue of process by the District Court by relying on Urmila Devi v. Yudhvir Singh (2013) 15 SCC 624.

The complaint against the actress was that she has played roles in films that create a lascivious effect on the minds of youths and viewers and as a result thereof crimes are committed, thus spoiling the social health. The Court observed that the complaint was of a general nature. A.S. Chakotkar and Rashi Deshpande appeared for the applicant and the non- applicant respectively.

The Court relied on the Supreme Court judgment of Raj Kapoor v. Laxman (1980) 2 SCC 175, to allow the prayer of the applicant to quash the complaint and subsequent proceedings against her. The Board considers, before certification, all the points that Section 292 I.P.C prescribes. Section 79 makes an offence a non-offense. So, if the Board of Censors acting within their jurisdiction, sanctions the public exhibition of the film, then the producer and the connected agencies are protected u/s Section 79 at least in view of their bona fide belief that the certificate is justified.  The Court went on to reprimand the Magistrate for not bothering to apply his mind to the Cinematograph Act and various judgments of the Supreme Court and the Bombay High Court on this point. The Court further stated that the remedy for the non applicants lies under Section 5D of the Cinematograph Act, if at all they are aggrieved by the certificate. [Mallika Sherawat v. State of Maharashtra, 2015 SCC Online Bom 5912, Decided on 29.10.2015]