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Showing contexts for: Prurient in Ekta Kapoor vs State Of M.P. on 11 November, 2020Matching Fragments
11. The petitioner submits that the scenes depicted in the web series does not cause depravity of a mind of a person with normal state of mind, therefore, nothing in the series satisfy the definition of obscenity. There is substantial safeguard against the same being viewed by minors. The episode is a creative work of art that deals ... 13 ... M.Cr.C. No.28386/2020 with certain themes of sexuality in the 21 st Century and is in no manner offensive to public decency and morality and is not likely to pander to lascivious, prurient or sexually precocious minds. The petitioner further submits that in order to attract the provision of Section 67-A of I.T. Act, the impugned material should contain sexually explicit act, which is missing in the present case. The word "explicit" would be justified when there is description or representation of sexual activity in a direct and detailed way. There is no such explicit sexual activity. The Court must take an over all view of the matter complained of as obscene in the setting of a whole work, which is a work of artistic value. Such scene should not be considered in isolation and the episode must be judged as a whole. Whether a particular scene is obscene or not is the standard of an ordinary man of commonsense and prudence and not an "out of the ordinary or hypersensitive man".
37. Now coming to the question as to whether the provisions of Section 67 of Information Technology Act are attracted or not, it would be appropriate to reproduce Section 67 of Information Technology Act, 2000, which runs as under:-
67. Punishment for publishing or transmitting obscene material in electronic form. -Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
38. One can see that the contents of aforesaid section are akin to that of Section 292(1) of IPC which is as under:-
Section 292(1) in The Indian Penal Code (1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or ... 29 ... M.Cr.C. No.28386/2020 any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
32(a) "whether an average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest...... (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically, defined by the applicable state of law, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value".
81. Applying the test of obscenity from the point of view of an ordinary person as laid down in citations mentioned above, there is substance in the submissions of the learned counsel for State that the episode could be catering to the prurient interest of any normal major person, although one must hasten to add that it is through leading of evidence only, that the test of obscenity would be affirmed [(as per the observations made in the case of Samaresh Bose (supra)]. What is punishable is "obscenity" and once the material comes within the ambit of obscenity, it is immaterial that the person is major in terms of age. The only test would be the test of an ordinary person and not hyper-sensitive person. The word 'prurient' in Oxford dictionary means "having or engaging an excessive interest in sexual matters, especially the sexual activity of others". The word 'lascivious' means "feeling or revealing an overt sexual interest or desire".