Kerala High Court
Chairman And Managing Director, ... vs State Of Kerala And Anr. on 7 January, 1999
Equivalent citations: 1999CRILJ808
ORDER K.A. Mohamed Shafi, J.
1. This Crl. M.C. is filed by the accused in C.C. No. 382 of 1996 on the file of the Court of Judicial First Class Magistrate-I, Chengannur to quash Annexure-VIII order dated 7-4-1997 passed by the learned Magistrate and C. S. No. 382 of 1996 pending against them.
2. The 2nd respondent filed Annexure-VI complaint against the petitioners alleging offence1 punishable under Section 292 IPC. The allegation is that the petitioners published an obscene advertisement in Malayala Manorama daily dated 17-8-96. The learned Magistrate after recording the Sworn statement of the 2nd respondent took cognizance of the offence and issued process to the petitioners. The petitioners appeared before the Magistrate's Court and submitted before the Court that taking cognizance of the offence and issuance of process to the petitioners to be reconsidered and the maintainability of the proceedings should be determined first before recording their plea. Accordingly the learned Magistrate heard both sides and by order dated 7-4-1997, a copy of which is produced as Annexure-VIII to this petition, repelled the contention of the petitioners and found that the complaint is maintainable against the petitioners and it should be proceeded against them in accordance with law. Therefore, the petitioners have preferred this Crl.M.C. before this Court under Section 482 Cr.P.C. to quash the com-plaint, Annexure-VHI order and the entire prosecution proceedings against them.
3. As already noted the allegations made against the petitioners is that the advertisement they published in Malayala Manorama daily dated 17-8-96 is obscene and punishable under Section 292 IPC. The petitioners are the Managing Director and General Manager (Marketing) of Hindustan Latex Limited, a Company owned by Government of India engaged in mainly manufacturing and marketing different varieties of condoms. They published the advertisement in question to promote the sale of one of their products 'Moods'. The petitioners contended that they published the advertisement with the bona fide intention to promote their product 'Moods' and when they came to know that the advertisement was resented by people and taking into consideration of the sentiments expressed by them about the advertisement they immediately withdrew the advertisement and the withdrawal of the advertisement was published in Malayala Manorama Newspaper dated 19-8-96. They also contended that the Kerala Women's Commission sent notice to them dated 17-8-96 stating that the advertisement published by the petitioners was an indecent representation provoking undesirable and indecent thoughts and ideas in the mind of men and women especially boys and girls of impressionable age and called upon them to explain why prosecution proceedings should not be launched against the petitioners. Annexure II is the copy of that notice. After receipt of that notice the petitioners expressed sincere regret and sent a reply to the Kerala Women's Commission and informed them that the advertisement was withdrawn by the petitioners. Accordingly, Kerala Women's Commission sent an order dated 31 -5-1997 accepting the petitioners' sincere regret for their advertisement and stating that the matter is amicably settled and further action against the petitioners is dropped. A copy of the order dated 31 -5-1997 sent by the Kerala Women's Commission to the petitioners is produced as Annexure-111 to this petition. The petitioners have also contended that the Advertising Standards Council of India who received certain complaints regarding the advertisement, called upon the petitioners to offer their comments about the complaints regarding the advertisement by letter dated 15-10-96. A copy of the letter dated 15-10-96 sent by the Secretary General of the Advertising Standards Council of India to the petitioners is produced as Annexure-IV. The petitioners sent a reply to the Advertising Standards Council of India narrating all the facts. Accordingly, they did not uphold the complaints and decided not to proceed against the petitioners accepting the fact that the advertisement has been discontinued. Annexure-V is the letter dated 5-12-96 sent by the Secretary General of The Advertising Standards Council of India to the petitioners. It is also contended by the petitioners that on 21-8-96 the 2nd respondent filed the private complaint before the Magistrate's Court alleging offence punishable under Section 292 IPC and the learned Magistrate after recording sworn statement took cognizance of the offence against the petitioners. The only question to be considered is whether the entire proceedings against the petitioners are liable to be quashed by invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C.
4. Counsel for the 2nd respondent submitted that the petitioners have published a very obscene advertisement creating highly reprehensible and contemptuous feeling in the minds of people and therefore the petitioners are liable for prosecution for the offence punishable under Section 292 IPC irrespective of the fact that they published regret in the newspapers and withdrew the advertisement subsequently. According to him the offence is committed by the petitioners the moment the petitioners published the advertisement and they cannot escape the criminal liability by stating that they have subsequently withdrawn the advertisement and expressed regret for publication of the obscene advertisement.
5. The advertisement in question contained the art work of sculptor Michaelangelo called David which is a picture of a nude-man with a young lady looking at that nude picture and guessing something. The advertisement called upon the people to state what he or she thought the woman shown in the picture was imagining.
6. The counsel for the petitioners submitted that though the advertisement does not exceed the limits of decency and decorum and depict indecency or obscenity, in view of the fact that the petitioners themselves have withdrawn the advertisement subsequently after expressing regrets for publishing the same realising the sentiments of the people who opposed the advertisement, this contention of the petitioners is not sustainable.
7. Counsel for the petitioners submitted that the question to be considered in this case is whether the petitioners who are the responsible Government officials and were in the helm of affairs of the Company owned by Government of India at the relevant time should be prosecuted in this case alleging offence punishable under Section 292 IPC, after the decision of Kerala Women's Commission as well as the Advertising Standards Council of India carefully examining the complaints made against the advertisement and the explanations offered by the petitioners including the immediate withdrawal of the advertisement realising the objection from some quarters not to proceed against the petitioners. According to him interests of justice warrant not to proceed against the petitioners for publishing the alleged obscene advertisement on the basis of the private complaint filed by/the individual. In support of this contention the counsel for the petitioners relies upon a decision reported in State of Maharashtra v. Mohd. Yusuf Noor mohammed 1990 Cri LJ 2106 wherein a Division Bench of the Bombay High Court has observed as follows (at pp. 2113-14):
The concept of vengeance against the wrong-door is a thing of the past and we have travelled far ahead from the days where retributive justice was considered as a fit recourse. In the present time, the concept of reformative justice is an accepted norm and surely, it is not permissible for an individual to continue with the prosecution to seek vengeance against the offender, when larger interest of the Society requires that the prosecution should be quashed. It, is futile to claim that as respondent Nos. 1 and 2 are using the process of Court, powers under Section 482 of the Code of Criminal Procedure cannot be exercised. We are not holding that the prosecution launched by respondents Nos. 1 and 2 is defective but we are exercising powers to quash the proceedings with a view to secure ends of justice. In our judgment, the interest of public at large and of the Society is of far more importance than the interest of the individual and such interest or right of an individual to continue prosecution must give way to the larger interest of the society.
In that appeal preferred by the State the question considered by the Division Bench of the Bombay High Court was whether the prosecution initiated by two private individuals should be continued after the matter was settled at the intervention of the leaders of both the Shia and Sunni sects and an apology was tendered by the accused and made the above observations. I think the above observations made by the Division Bench of Bombay High Court are squarely applicable to the facts of this case also. It has to be noted that immediately on coming to know of the 'fact that the advertisement published drew objections from certain members of Society, the petitioners withdrew the advertisement and expressed their regret. Subsequently two responsible bodies The Kerala Women's Commission and The Advertising Standards Council of India sought explanation from the petitioners on the complaints regarding the obscene publication made by the petitioners and they after accepting the explanation offered by the petitioners decided not to proceed against the petitioners. The above complaint was filed by the 2nd respondent much thereafter alleging offence punishable under Section 292 IPC against the petitioners. Under such circumstances even if the above prosecution launched by the 2nd respondent against the petitioners is maintainable the interest of the 2nd respondent who is alleged to be a social worker should give way to the larger interest of the society in not prosecuting the petitioners in this case especially when the two very important public bodies have accepted the regrets expressed by the petitioners, immediate withdrawal of the advertisement and the explanations offered by them regarding the publication of the advertisement. Therefore, I find that in the interests of justice this is an appropriate case wherein the inherent jurisdiction of this Court has to be exercised to quash the criminal proceedings launched against the petitioners.
Hence this Crl.M.C. is allowed. Annexure-VI complaint and the entire criminal proceedings in C.C.No. 382/96 launched against the petitioners, before the Court of Judicial First Class Magistrate-I, Chengannur are quashed.