Aveek Sarkar & Anr vs State of West Bengal And Anr 2004
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.902 OF 2004
Aveek Sarkar & Anr. .. Appellants
Versus
State of West Bengal & Ors. . Respondents
Bench: K.S. Radhakrishnan, A.K. Sikri
FACTS OF THE CASE
A famous German magazine “STERN” published an article about engagement and
future plans of two famous personalities with a nude picture of renowned Tennis
Player Boris Becker with his fiancée Barbara Feltus a film actress.
The picture was taken by Barbara’s father and the purpose of that picture was to
disseminate a strong protest against “APARTHEID” and to inform their fans about
their personal lives.
“Sports World”, a highly renowned and widely circulated magazine of India published
the same photograph on 05.05.1993 with the a very catchy caption saying “Posing
nude dropping out of tournaments, battling Racism in Germany. Boris Becker
explains his recent approach to life” – Boris Becker Unmasked.
Anandabazar Patrika, a newspaper in Kolkata also published the same photograph and
the article.
A practicing lawyer at Alipore Judge’s court, Kolkata filed a complaint against Editor
and Publisher of both newspaper as well as the magazine before the Sub-Divisional
Magistrate at Alipore under Section 292 of the Indian Penal Code.
Magistrate pointed out that in order to be satisfied that the picture was depraving and
can corrupt minds proceedings must continue and the accused must be examined
under
Section 251 Cr.P.C..
Appellants moved to High Court of Calcutta for quashing the proceedings in case
No.C.796 of 1993 pending before the Judicial Magistrate Court, Alipore by
Criminal Revision No. 1591 of 1994.
ISSUES
1. Whether the publication of the photograph and article justified or not?
2. Whether the article and the photograph as published by both magazine and newspaper
falls under the category of obscene material?
3. Whether the publication violates Section 4 of the Indecent Representation of Women?
CONTENTIONS RAISED BY APPELLANTS
Shri Pradeep Ghosh learned counsel for appellants submitted that the publication in
question and the pose performed in the picture can not be considered “obscene” under
Section 291(1) IPC.
He pointed out that obscenity must be judged keeping in mind the changing social and
cultural norms, current social and morality outlook of the society and common
national standards in relation to matters in issue.
The learned counsel contended that the Judicial Magistrate have completely
overlooked the context of the photograph and the scope of Section 79 IPC has not
been properly interpreted.
The publication was not found obscene by various other state institutions and
private complaint of such nature should not be entertained by the Judicial
Magistrate.
CONTENTIONS RAISED BY RESPONDENTS
Shri Mohit Paul, learned counsel for respondents submitted that Judicial
Magistrate was right in his decision to put accused under trial to know the
culpability of crime before providing any opinion on the matter.
He pointed out that good faith of publication must be proved by the Appellants as
they are questions of fact and matters for evidence.
CASE REFRENCES
Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881
Chandrakant Kalyandas Kakodar v. State of Maharashtra 1969 (2) SCC 687
Samaresh Bose v. Amal Mitra (1985) 4 SCC 289.
S. Khushboo V. Kanniammal (2010) 5 SCC 600
In Bobby Art International & Ors. v. Om Pal Singh Hoon (1996) 4 SCC 1
In Ajay Goswami v. Union of India (2007) 1 SCC 143
R. v. Penguin Books Ltd. (1961 Crl. Law Review 176)
Regina v. Hicklin (1868 L.R. 2 Q.B.
Brodie v. The Queen (1962 SCR
Regina v. Butler (1992) 1 SCR 452
Towne Cinema Theatres Ltd. v. The Queen (1985) 1 SCR 494
