Indian Kanoon - Search engine for Indian Law

(7) The submission of the learned counsel for the petitioners in brief is that the magazine "Debonair" primarily caters to the needs of educated and supplicated readers in the society and as such it has acquired a reputation as a magazine of high standard. It publishes articles, views, reviews, features and photographs of high quality on various subjects like politics, economies, business management, cinema, sports. etc. together with some light leading material. It also publishes a large number of photographs in its every issue which are of topical as well as artistic value. It contains a centrally spread page and one or two other photographs of semi-nude and nude female forms in surroundings of natural beauty. The photographs are works of eminent and highly skilled photographers and are of high artistic value. The photographs exhibit the creativity of the artist and are of great aesthetic value. Further they are designed to promotes art of photography. So, the mere fact that the photographs are of nude men nude women would not render them obscene or pornographic. They assert that the photographic features when examined would show that the emphasis is not on the nudeness of the female but is rather on beauty as conceived and unfolded by the artist. In short, their submission is that the photographs of nude. women which are alleged to obscene are not so and their prosecution for offence under Section 292 Indian Penal Code is totally misconceived and not warranted by law.

(13) It is thus well recognized principle that the concept of descenity is moulded to a very great extent by the social outlook of the people who are generally expected to read the book or article. Keeping these guidelines in view, I have carefully glanced through both the June and July 1977 issues of the magazine "Debonair", There are pictures of nude or seminude women at pages 8, 9, 18, 39. 58 & 68 of June 1977 issue of the magazine'. Likewise there are pictures of nude/semi-nude women at pages 40, 64 & 66. of July 1977 issue of the said magazine. Generally speaking pictures of a nude/semi-nude women cannot per se be called obscene unless the same are suggestive of deprave mind and are designed to excite sexual passion in ties persons who are likely to look at them or see them. This will naturally depend on the particular posture and the background in which a nude semi-nude women is shown. in Sreeram Saksena v. Emperor, Air 1940 Calcutta 290, some postcards of women in the nude were said to be obscene. These pictures had been reproduced from some of the photographs contained in the picture books named "Sun Bothers", "Eve in the Sunlight", "Perfect Womanhood", and "Health and Efficiency" which were being sold in the market. It was held by their Lordships that : "A picture of a woman in the nude is not per se obscene. unless there is something in it which would shock or offend the taste of any ordinary or decent-minded person. When there is nothing in it to offend an ordinary decent person it is impossible to say that it is obscene. Unless the pictures c.f nude female forms are incentive to sensuality and excite impure thoughts in the minds of ordinary persons of normal temperament who may happen to look at them, they cannot be regarded as obscene within the meaning of S. 292. For the purpose of deciding whether a picture is obscene or not one has to consider to a great extent the surrounding circumstances, the pose, the posture, the suggestive element in the picture, the person into whose hands it is likely to fall, etc."

Likewise, was held by a Division Bench of Allahabad High Court in State v. Thakur Prasad and others. , that : . "A picture of a woman in the nude is not per se obscene. For the purpose of deciding whether a picture is obscene or not one has to consider to a great extent the surrounding circumstances, the pose, the posture, the suggestive element in -the picture, and the person or persons in whose hands it is likely to fall."-

(14) Applying this test. the nude pictures cannot be termed as obscene i.e. which will have a tendency to deprave and corrupt the minds of people in whose hands the magazine in question is likely to fall. The magazine is published in English language. It contains articles on topical subjects which may be categorised as political, economic book reviews etc. It also contains some really decent pictures in the background of nature scenery. However, a .look at the impugned pictures would show beyond a shadow of doubt that they can hardly be said to have any aesthetic or artistic touch, rather they seem to have been taken with the sole purpose of attracting readers who may have a prurient mind. The women in nude have been just made to lie on e grassy plot or sit on some stool etc. and pose for a photograph in the nude. So they play well be said to he vulgar and indecent but all the same it may be difficult to term them obscene within the meaning of Section 292 Indian Penal Code . As observed by the Supreme Court in Samaresh Bose:- "A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences."

(16) So, even though the impugned pictures of nude /semi-nude women in the two issues of the magazine, averted to above, are apparently vulgar and indecent having no artistic or aesthetic value, being designed simply to pander to the lustful eyes of a section of readers, who may be attracted to purchase the magazine, cannot be said to have the effect of depraving and corrupting the minds of the readers who are likely to go through them. It may also be noticed that at page 8 of the June 1977 issue of the magazine there is a caricature of a nude man and a woman and the lustful eyes of the man are well set on the breasts of the woman who is sitting in his lap. Below it there is the following legend: "THEE yes Have It : The sexiest part of the human body is the eyes, according to students at Oregon State University. Men listed the sexiest parts of a girl as eyes, breasts, waist, bottom. Girls listed eyes, shoulders, chest muscular arms, hair and mouth."