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            RO&AC                                      Sd/- JMIC, 11.6.12.
            Sd/ xx Adv."



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CRM-M Nos.1490, 22387 and 22418 of 2013 (O&M) Thereafter, the trial Court vide impugned order dated 19.07.2012 summoned all the aforesaid petitioners under Sections 292, 293 IPC read with Sections 4 and 6 of the Act of 1986. For ready reference, Sections 292 and 293 IPC as well as 4 and 6 of the Act of 1986, are reproduced as under:-

26. In Ajay Goswami v. Union of India 2007(1) R.C.R.(Civil) 633 : 2007(1) S.C.T. 554 : 2007(1) Recent Apex Judgments (R.A.J.) 767 : (2007)1 SCC 143, while examining the scope of Section 292 I.P.C. and Sections 3, 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986, this Court held that the commitment to freedom of expression demands that it cannot be suppressed, unless the situations created by it allowing the freedom are pressing and the community interest is endangered.

"28. In England, as we have earlier noticed, the decision on the question of obscenity rests with the Jury who on the basis of the summing up of the legal principles governing such action by the learned Judge decides 27 of 33 CRM-M Nos.1490, 22387 and 22418 of 2013 (O&M) whether any particular novel, story or writing is obscene or not. In India, however, the responsibility of the decision rests assentially on the Court. As laid down in both the decisions of this Court earlier referred to, "the question whether a particular article or story or book is obscene or not does not altogether depend on oral evidence, because it is the duty of the Court to ascertain whether the book or story or, any passage or passages therein offend the provisions of Section 292 Indian Penal Code" In deciding the question of obscenity of any book, story or article the Court whose responsibility it is to adjudge the question may, if the Court considers is necessary, rely to an extent on evidence and views of leading literary personage, if available, for its own appreciation and assessment and for satisfaction of its own conscience. The decision of the Court must necessarily be on an objective assessment of the book or story or article as a whole and with particular reference to the passages complained of in the book, story or article. The court must take an overall view of the matter complained of as obscene in the setting of the whole work, but the matter charged as obscene must also be considered by itself and separately to find out whether it is so gross and its obscenity so pronounced that it is likely to deprave and corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall. Though the Court must consider the question objectively with an open mind, yet in the matter of objective assessment the subjective attitude of the Judge hearing the matter is likely to influence, even though unconsciously, his mind and his decision on the question. A Judge with a puritan and prudish outlook may on the basis of an objective assessment of any book or story or article, consider the same to be obscene. It is possible that another Judge with a different kind of outlook may not 28 of 33 CRM-M Nos.1490, 22387 and 22418 of 2013 (O&M) consider the same book to be obscene on his objective assessment of the very same book. The concept of obscenity is moulded to a very great extent by the social outlook of the people who are generally expected to read the book. It is beyond dispute that the concept of obscenity usually differs from country to country depending on the standards of morality of contemporary society in different countries. In our opinion, in judging the question of obscenity, the Judge in the first place should try to place himself in the position of the author and from the view point of the author the judge should try to understand what is it that the author seeks to convey and what the author conveys has any literary and artistic value. The Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers. A Judge should thereafter apply his judicial mind dispassionately to decide whether the book in question can be said to be obscene within the meaning of Section 292 Indian Penal Code by an objective assessment of the book as a whole and also of the passages complained of as obscene separately. In appropriate cases, the Court, for eliminating any subjective element or personal preference which may remain hidden in the sub- conscious mind and may unconsciously affect a proper objective assessment, may draw upon the evidence on record and also consider the views expressed by reputed or recognised authors of literature on such questions if there be any for his own consideration and satisfaction to enable the Court to discharge the duty of making a proper assessment."

After hearing the counsel for the parties, I find merit in the present petitions for the following reasons:-

(a) In the light of the judgment passed by the Hon'ble Supreme Court in Aveek Sarkar's case (supra),

30 of 33 CRM-M Nos.1490, 22387 and 22418 of 2013 (O&M) I find that prima facie neither offence under Section 292 IPC nor under Sections 4 and 6 of the Act of 1986 is made out. A bare perusal of the complaint show that it is alleged that the complainant has seen the replica of the gaming video CDs i.e. he has not seen the original video CDs either manufactured or distributed by any of the accused which is sold in market, after obtaining the requisite certificate from the Censor Board and, therefore, the complainant has failed to prove that the accused persons have committed the offence punishable under Sections 292, 293 IPC read with Sections 4 and 6 of the Act of 1986.