Delhi District Court
State vs . Vikram Tiwari & Ors. on 18 March, 2009
FIR No. 433/95
PS: Kashmiri Gate (Crime Branch)
IN THE COURT OF SH. SANJAY BANSAL ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE-02 (NORTH) DELHI
FIR No. 433/95
U/s 292 IPC and 4/6 of Indecent Representation of Women (Prohibition)
Act, 1986
PS: Kashmiri Gate (Crime Branch)
State Vs. Vikram Tiwari & Ors.
Date of institution: 19.10.95
Judgment Reserved on: 07.03.09
Date of Judgment: 18.03.09
JUDGMENT
a) Serial No. of the case 02401R0005631995
b) Date of commission 30.6.95
of the offence
c) Name of the complainant SI Hari Singh Sec/SD Crime Branch,
PHQ, New Delhi
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FIR No. 433/95
PS: Kashmiri Gate (Crime Branch)
d) Name of the accused 1. Vikram Tiwari S/o Jagnarain Tiwari person, and his parentage R/o H. No. 289, Vijay Park, Maujpur Delhi. and address.
2. Sudhir Mukherjee S/o Satinath Mukherjee R/o 109 A Meer Singh Chamber Mandir Lane Munirka Delhi. (Now P.O.)
3. Bharat Malik s/o Ram Lal Malik R/o 808 Dr. Mukherjee Nagar Delhi.
4. Rakesh Sharma S/o Pandit Sarvsewak Sharma R/o 30/10 Gali No. 10, 60 Phuta Road Vishwas Nagar Shahdra, Delhi.
(Now P.O.)
5. Ram Avadh Pandey S/o Sh. Chhote Lal Pandey R/o T 771, Mangolpur, Delhi-83.
6. Jugal Kishore S/o Lt. Sh. B.R. Ahuja R/o 2070, Outram Lanes, Kingsway Camp, Delhi.
e) Offence complained or 292 IPC and 4/6 of Indecent proved Representation of Women (Prohibition) Act, 1986 f) Plea of the accused Pleaded not guilty and claimed trial. g) The final order Acquitted h) Date of such order 18.03.2009
BRIEF STATEMENT OF THE REASONS FOR THE DECISION OF THE CASE:
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PS: Kashmiri Gate (Crime Branch)
1. The case of the prosecution is that on 30.6.95, SI Hari Singh, Crime Branch, alongwith few other officers was present at Ritz Cinema Hall at Kashmiri Gate. He received a secret information that in the shops inside ISBT, obscene books are being sold. Raiding party was prepared and they reached shop No. 62 where accused Vikram Tiwari was found selling magazines and books. Some obscene magazines were found there containing obscene and nude pictures of women. The magazines were seized. Accused Vikram Tiwari was arrested. The printer of one of the magazine namely 'Fantasy' who is accused Sudhir was also arrested. Similarly accused Bharat Malik who was printer and publisher and legal adviser and accused Rakesh Sharma and R.A. Pandey were also arrested. One more accused Jugal Kishore was arrested later on. Investigation was completed. Charge sheet was filed u/s 292 IPC and 4/6 of Indecent Representation of Women (Prohibition) Act, 1986.
2. After appearance of the accused, section 207 Cr.PC was complied with. Accused Sudhir did not appear later and he was declared PO.
Notice was served upon all the remaining accused for the offences u/s 292 IPC and 4/6 Indecent Representation of Women (Prohibition) Act,1986 (for short "IRW Act") to which accused pleaded not guilty and Page 3 of 10 FIR No. 433/95 PS: Kashmiri Gate (Crime Branch) claimed trial. During trial accused Rakesh Sharma also stopped appearing and was declared PO.
3. To prove its case, prosecution examined PW 1 ASI Rambir Singh, PW 2 Ct. Sanjay Kumar and PW 3 SI Hari Singh. Statements of accused were recorded. They did not lead any evidence despite seeking opportunity.
4. I have heard Ld. APP and Ld. Counsels for the accused. Some documents were filed by accused Bharat Malik at the time of closing of defence evidence.
5. PW 1 had recorded FIR being Duty Officer. Copy of the same is Ex. PW 1/A.
6. PW 3 has deposed about the recovery of the magazines. He deposed that on 30.6.95 he alongwith HC Suresh, Ct. Sanjay (PW 2), Ct. Somvir and Inspector Jai Kishan were present at Ritz Cinema, Kashmiri Gate where a secret information was received that obscene books are being sold inside ISBT and if raid is conducted accused can be caught. He deposed that 4/5 passersby were asked to join the raiding party but none agreed and left without telling their names and Page 4 of 10 FIR No. 433/95 PS: Kashmiri Gate (Crime Branch) addresses. Thereafter all of them proceeded towards spot and reached shop No. 62 inside ISBT. Accused was having magazine in his hand which was having naked picture of the women on the front page and inside also there were naked photographs of males and females. He deposed that on the counter there were nine magazines and these also contained obscene pictures. One of the magazine was 'Fantasy' having price of Rs. 100/- and one book was of Rs. 60/-. He deposed that magazines were seized vide memo Ex. PW 2/A. He prepared rukka Ex. PW 2/B and got registered the case. He also prepared site plan Ex. PW 3/A and arrested the accused and released him on bail. He also deposed about arresting the Printer, Producer and other two accused persons. He also identified case property i.e. magazines. Witness was cross examined. It will be discussed later.
7. PW 2 has also deposed about the raid. He deposed that accused Vikram Tiwari was present at shop No. 62 when they reached there and was having the magazine titled 'Naughty Boy' in his right hand. There were naked pictures of women on the front cover and also inside the magazine. He also deposed that nine magazines of 'Fantasy' were also displayed in front of the counter which were also having obscene pictures. He deposed that publisher and editor of the magazine Page 5 of 10 FIR No. 433/95 PS: Kashmiri Gate (Crime Branch) 'Naughty Boy' namely accused Bharat Malik has committed the offence. He also deposed that partner and publisher of magazine 'Fantasy' accused Sudhir is also guilty. He also deposed that the magazine was printed by M/s Lepee Office Pvt. Ltd. which is also guilty. He deposed about taking rukka to PS for registration of the case. He deposed that accused Vikram Tiwari was arrested in his presence. Witness was cross examined at length. It will be discussed later.
8. All the accused denied the incriminating evidence in their statements. Accused Bharat Malik sought opportunity to lead evidence but did not examine any witness and instead filed some documents regarding registration of his magazine 'Naughty Boy'.
9. Ld. Counsels for the accused argued that prosecution has failed to prove its case. Ld. Counsels argued that accused Bharat Malik had got magazine 'Naughty Boy' registered with Registrar of Newspaper and has not committed any offence. Ld. Counsels referred to various contradictions in the testimonies of the witnesses and argued that their testimonies are not reliable.
10. Let us first consider whether seizure of magazines is proved or Page 6 of 10 FIR No. 433/95 PS: Kashmiri Gate (Crime Branch) not.
11. No public person has been joined in the raiding procedure despite availability. It has been explained by witnesses that public persons were asked to join but they did not. No action has been taken against these public persons. PW2 deposed that magazines were recovered in his presence from accused Vikram Tiwari. On being asked to identify, PW2 pointed towards accused Ram Avadh Pandey as accsued Vikram Tiwari in the witness box. PW3 does not remember which magazine he had taken from accused Vikram Tiwari. In examination-in-chief, he stated that he had not arrested him while in cross-examination, he stated the opposite. No investigation was done to ascertain as to whom the shop belonged. PW3 has admitted that he has not prepared the arrest memo of any person. Further the seizure of magazines is not as per Rule 3 and 4 of the Indecent Representation of Women (Prohibition) Rules, 1987. When the law prescribes the manner in which a thing has to be done, then it must be done in that manner or not at all. The I.O. has failed to follow the prescribed procedure. Thus, I am of the view that prosecution has not proved the seizure of the magazines satisfactorily.
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PS: Kashmiri Gate (Crime Branch)
12. Even if it is presumed that the magazines were recovered, it has not been proved that those were kept for selling. It has been admitted by the witnesses that several persons had come to the shop but they did not demand any such magazine. PW3 has stated that he had not seen any other place where such magazines were being sold. No such magazine was recovered from any other place. PW2 has stated that the magazines had not been displayed on the counter. No printing material has been recovered from accused Vikram Tiwari. Thus ingredients of Sec. 292 IPC are missing.
13. Accused Bharat Malik admits that magazine 'Naughty Boy' is his magazine and he is the publisher and editor of the same. But he submits that he has got the magazine registered and it is an Adult magazine and is supposed to contain adult material. He has also filed copies of some judgments by which he has been acquitted in similar kind of cases. Accused Sudhir Mukherjee is the printer, publisher and editor of magazine 'Fantacy'. He is now a proclaimed offender.
14. What is obscene is to be determined by the Court. It was held by Hon'ble Supreme Court in the case titled "Chandra Kant Kalyandas. Kakodkar v. State of Maharashtra & Ors." reported as AIR 1970 SC Page 8 of 10 FIR No. 433/95 PS: Kashmiri Gate (Crime Branch) 1390 that it is the duty of the Court to ascertain whether the material concerned offend the provisions of Sec. 292.
15. The magazines have some articles on various topics. It also has pictures of women who are topless and their breasts can be seen. There are caricatures also depicting men and women in intimate postures.
16. The law relating to obscenity has been well settled. In the case of Ranjit D. Udeshi v. State of Maharashtra reported as AIR 1965 SC 881, Hon'ble Supreme Court has approved the Hicklin Test propounded in Queen v. Hicklin (1868)3 QB 360 by the English Courts. Further in "Samresh Bose v. Amal Mitra" reported as 1986 Crl.L.J. 24, the Apex Court again referred to the Hicklin Test. The test is "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and in 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". As recently as in AIR 2006 SC 3346 titled "Director General, Directorate of Doordarshan & Ors. v. Anand Patwardhan & Anr.", Hon'ble Supreme Court has again observed that Page 9 of 10 FIR No. 433/95 PS: Kashmiri Gate (Crime Branch) the Hicklin Test is the only test in India to adjudge whether any material is obscene or not. However, the Hon'ble Apex Court also noted the test as applicable in United States which is "obscene material is any material or performance, if the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest, the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section, and the subject matter, taken as whole, lacks serious literary, artistic, political, educational or scientific value".
17. It, thereafter, observed:
"32. Therefore, one can observe that, the basic guidelines for the tier of fact must be:
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest.
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable State law, and
(c) whether the work, taken as whole, lacks serious literary, artistic, political, or scientific value.
The Constitution of India guarantees everyone the right to freedom of expression. India is also a party to the International Covenant on Civil and Page 10 of 10 FIR No. 433/95 PS: Kashmiri Gate (Crime Branch) Political Rights and therefore bound to respect the right to freedom of expression guaranteed by Article 19 thereof, which states:
1.Everyone shall have the right to hold opinions without interference.
2.Everyone shall have the right to freedom of expression, this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in form of art, or though any other media of his choice."
18.However, in the case reported as AIR 2007 SC 493 titled "Ajay Goswami v. Union of India & Ors.", the Hon'ble Supreme Court, while again referring to various authorities on the issue and while again noting the Hicklin test, observed that the said test has become outdated in the present scenario. The Apex Court noted the Miller test. It held that nudity alone is not enough to declare any material as obscene. The Apex Court noted the changed conditions in the context of Indian society. It was observed that the State, in a bid to protect children from harmful effects, cannot force adults and grown ups to read only those material which are meant for children alone.
19.Thus it is the duty of the Court to decide whether the material is obscene or not. As noted above, the magazines contain topless nude photographs, articles, caricatures etc. It also has articles on other Page 11 of 10 FIR No. 433/95 PS: Kashmiri Gate (Crime Branch) topics. Reading of articles would show that sex is not the only aim of the articles. The photographs are like erotica. It is pertinent to note that the magazine 'Naughty Boy' has been registered and necessary licence has been obtained and in it, it has been mentioned that the magazine is an Adult magazine. Morality differs from place to place, from time to time and from person to person. We cannot overlook the changes in the society that are happening around us. The society in India is changing at a fast pace. What was considered as obscene in 1950's is no more obscene these days. We can see the change through our movies. The openness that is being depicted in these movies has been accepted as tolerable by the society. 'Erotica' is no more an unknown term. Rather, it has been accepted as a means of enjoying one's sexual life. Sex-education is the most debated topic these days and its need is felt stronger than ever before.
20.The term 'prurient' is defined differently by different persons. Plain meaning of the word is lascivious or lustful thoughts. Yet again, the standard to be applied will be that which keeps in mind the contemporary community standards and that too for an average man.
21. There is no evidence that the magazines contain any material due Page 12 of 10 FIR No. 433/95 PS: Kashmiri Gate (Crime Branch) to which there can be any law and order problem. There is no evidence that the magazines were being sold to any children. Considering the material as a whole, I find that it is not obscene and does not fall u/s 292 IPC.
22. As far as S. 4 and 6 of IRW Act are concerned, it is already noted that the magazines have not been seized as per procedure which makes the seizure defective. Even otherwise pictorial depiction of women in nude does not by itself attract these provisions.
23. Considered thus, all the four accused are hereby acquitted. Their bail bonds are cancelled and sureties are discharged. File be consigned to Record Room. Be retained as per Rules as accused Sudhir Mukherjee and Rakesh Sharma are P.O.'s.
Announced in the Open Court th on this 18 day of March, 2009.
(Sanjay Bansal) Addl. Chief Metropolitan Magistrate - 02 (North) Delhi.
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