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3.2 However, the ACMM, by order dated 17.09.2019, allowed the complainant’s application and directed the registration of an FIR against the appellants under Sections 292 and 294 of the IPC and Sections 67 and 67A of the IT Act as the vulgar language used is prima facie capable of appealing to prurient interests of the audience and is hence obscene.

3.3 The appellants filed a revision petition before the Additional Sessions Judge, who by order dated 10.11.2020 ‘IPC’ hereinafter.

4. Reasoning of the High Court: The High Court, while dismissing the petition for quashing, held that the object of Sections 67 and 67A of the IT Act is to punish the publication and transmission of obscene and sexually explicit material in the cyber space. It relied on the ‘community standard test’ to determine whether the material is obscene, as laid down by this Court in (2017) 2 SCC 18, 2016 INSC 1131.

Aveek Sarkar v. State of West Bengal 9 and followed in decisions of various High Courts10. By applying this test, the High Court held as follows: First, applying the standard of a common prudent man, it found that the episode did not use civil language and there was excessive use of profanities and vulgar expletives, and a clear description and reference to sexually explicit acts. The determination of how the content impacts a common man must be determined in the Indian context, as per Indian morality, keeping in mind contemporary standards of civility and morality.11 In the allegedly offending portion (in Season 1, episode 5 from 5:24 to 6:40 minutes and 25:28 to 25:46 minutes), the male protagonist in a conversation with the female protagonist uses terms describing male and female genitalia and sexual acts, thereby making them sexually explicit and arousing prurient feelings. While the female protagonist is heard objecting to the language and expressing disgust over it, she does so by repeating the same to the male protagonist. The male protagonist then uses more vulgar expletives and indecent language, which is repeated by the (2014) 4 SCC 257, 2014 INSC 75.

7.1 Section 67 of the IT Act, that criminalises the publication and transmission of obscene material in electronic form, covers 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. As per Aveek Sarkar (supra), the determination of whether some material is obscene must be made by the ‘community standard test’ by considering the work as a whole and then looking at the specific material that has been alleged to be obscene in the context of the whole work. The web-series is a romantic comedy that traces the life of a group of friends who are in college. Its intention is to paint a relatable picture of college life in a cosmopolitan urban setting. There are two specific portions that have been alleged to be obscene. The first segment is where the male protagonist, named Bagga, indiscriminately uses expletives that are heard by the female protagonist, named Naira. Naira objects to the use of such language and points out that the literal meaning of the terms is absurd. Bagga states that these terms are not meant to be taken literally and are a part of common parlance. Naira reiterates her disapproval and threatens Bagga with consequences if he continues to speak in such a manner. Bagga ‘inadvertently’ uses another expletive, due to which Naira leaves from there. In the second segment, Naira and Bagga are with a wider group of friends where Naira is incensed by the statements of another friend and angrily uses the same expletives as Bagga, at which Bagga is delighted. Learned senior counsel has argued that when these scenes are considered individually and in the context of the web-series as a whole, they are not obscene. They only portray the absurdity of the literal meaning of these terms and show their inevitable presence in common language, including by those who disapprove of their use.

 “(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 a whole, lacks serious literary, artistic, political, or scientific value.”44

24. The Court relied on Ramesh v. Union of India,45 where it was held that the effect of the words must be judged from the standards of a reasonable, strong-minded, firm and courageous person, and not from the perspective of weak and vacillating minds or those who sense danger in every hostile point of view.46 Considering the documentary as a whole to determine its message, which cannot be conveyed by watching only certain bits, it was held that the film portrays social evils and does not seek to cater to the prurient interests of any person.47