AVEEK SARKAR & ANR. versus STATE OF WEST BENGAL & ORS.

Citation: [2014] 2 S.C.R. 263 · Decided: 03-02-2014 · Supreme Court of India · Bench: K.S. RADHAKRISHNAN · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2014] 2 S.C.R. 263 
AVEEK SARKAR & ANR. 
v. 
STATE OF WEST BENGAL & ORS. 
(Criminal Appeal No. 902 of 2004) 
FEBRUARY 03, 2014 
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.] 
A 
B 
CODE OF CRIMINAL PROCEDURE, 1973: s.482 -
Quashing of proceedings - German magazine published an 
article with a picture of world renowned Tennis player, posing 
C 
nude and covering the breast of his dark-skinned fiancee with 
his hands which was photographed by none other than her 
father - The couple spoke against apartheid and proclaimed 
that true love has no boundaries - The article reproduced in 
Indian magazine and newspaper - Criminal proceedings o 
under ss. 292, /PC and ulss. 3, 4 and 6 of Indecent 
Representation of Women (Prohibition) Act, 1986 against the 
editor and publisher of magazine and newspaper - High Court 
declining to quash the proceedings - On appeal, Held: While 
judging as to whether a particular photograph, an article or E 
book is obscene, regard must be had to the contemporary 
values and national standards and not the standard of a group 
of susceptible or sensitive persons - Hicklin test is not the 
correct test to be applied to determine ''what is obscenity" -
Those sex-related materials which have a tendency of F 
"exciting lustful thoughts" can be held to be obscene, 
however, obscenity has to be judged from the point of view of 
an average person, by applying contemporary community 
standards - The said picture has to be viewed in the 
background in which it was shown, and the message it has to 
convey to the public and the world at large - The message it G 
conveyed was eradicate evil of racism and apartheid in the 
society and promote love and marriage between white 
skinned man and a black skinned woman - When viewed in 
263 
H 
264 
SUPREME COURT REPORTS 
[2014) 2 S.C.R. 
A that angle, the picture or the article cannot be said to be 
objectionable so as to initiate proceedings u/s. 292 /PC or ul 
s.4 of the Act, 1986 - Magistrate, without appreciation of 
background in which the photograph was shown, proposed to 
initiate prosecution proceedings against the appellants - High 
8 
Court should have exercised powers uls. 482 to secure the 
ends of justice - Criminal proceedings initiated against the 
appellants set aside - Indecent Representation of Women 
(Prohibition) Act, 1986 - ss.3, 4, 6 - Penal Code, 1860 - s.292. 
A German magazine published an article with a 
C picture of world renowned Tenn.is player (Boris), posing 
nude and covering the breast of his dark-skinned fiancee 
(Barbara) with his hands which was photographed by 
none other than her father. The couple spoke freely 
against apartheid and proclaimed that true love has no 
D boundaries. The article stated that the purpose of the 
photograph was also to signify that love champions over 
hatred. The article was reproduced in "Sports World", a 
widely circulated magazine published in India and then 
in Anandabazar Patrika, a newspaper having wide 
E circulation in Kolkata. 
A Kolkata lawyer filed a complaint under Section 292, 
IPC before the Magistrate against the appellants, the 
Editor and the Publisher and Printer of the newspaper as 
F well as against the Editor of the Sports' World. The 
complaint stated that the· nude photograph would have 
effect to corrupting young minds, both children and 
youth of this country, and was against the cultural and 
moral values of our society and that unless such types 
of obscene photographs are censured and banned and 
G accused persons are punished, the dignity and honour 
of our womanhood would be in jeopardy. The 
complainant also urged that the accused persons should 
not only be prosecuted under Section 292 IPC, but also 
be prosecuted under Section 4 of the· Indecent 
H 
AVEEK SARKAR & ANR. v. STATE OF WEST 
265 
BENGAL & ORS. 
Representation of Women (Prohibition) Act, 1986, since 
A 
the photograph prima facie gives a sexual titillation and 
its impact is moral degradation and would also encourage 
the people to commit sexual offences. The Magistrate 
held that a prima facie case was made out against the 
accuse'd persons under Section 292 IPC and issued 
B 
summons against all the accused persons. 
The accused persons on 5.3.1993 filed an application 
before the Court for dropping the proceedings stating that 
there was no illegality in reproducing news item in the 
C 
Sports World as well as in the Anandabazar Patrika and 
photograph appeared in a magazine 'STERN" published 
in Germany. Fu
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