2013 ALL MR (Cri) 2347
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, J.
Chintan Upadhyay Vs. Hema Upadhyay & Anr.
Criminal Writ Petition No. 1418 of 2013
10th May, 2013
Petitioner Counsel: Mr. NITIN PRADHAN
Respondent Counsel: Mr. H.G. BHAMBHANI
(A) Indecent Representation of Women (Prohibition) Act (1986), Ss.4, 6 - Penal Code (1860), S.292(2)(a) - Indecent and obscene painting - Depiction on the walls of bedroom - Allegations of causing embarrassment and insult to wife with whom matrimonial disputes are pending - Bedroom occasionally used by husband but frequently accessible to driver, servants and other visitors - Prima facie offence under S.4 made out - It is not as if offence is prima facie committed only if distribution to public is made.
Section 4 takes within its fold production, sale, letting on hire, distribution, circulation etc. The word "distribution" is defined not restrictively but illustratively so as to include distribution by way of samples whether free or otherwise. Equally, the word circulation or circulate must be given its ordinary and common sense meaning. In the context in which all these words appear it is clear that depiction in any manner of the figure of a woman, her body or form or any part thereof is what is prohibited. Additionally, prohibition of advertisements and publication or sending by post is envisaged. Therefore, it is not as if the offence is prima facie committed only if the distribution to public is made. Therefore, it is not as if the petitioner has committed no offence within the meaning of the Act because the painting or the figure has been depicted on the walls of one bedroom in a house. Once, that bedroom is allegedly accessible not only to the respondent No.1 but a driver and male servants and even to visitors coming to visit the house of the petitioner, then, all the more, the allegations point towards the commission of the offence. Prima facie the act is covered by section 4 and punishable by section 6 of the said Act.
AIR 1979 SC 888, 2007 ALL SCR (O.C.C.) 178, AIR 1986 SC 967 Ref. to. [Para 31]
(B) Indecent Representation of Women (Prohibition) Act (1986), Ss.4, 6 - Constitution of India, Arts.19(1)(a), 21, 51A(e) - Indecent and obscene painting - Offence by artist husband against his wife - Process issued - Depiction at the walls of bedroom stated by husband to be a private activity - He also took defence of his freedom under Art.19(1)(a) being an artist - Held, freedom under Art.19(1)(a) is not absolute but subject to decency and morality - A citizen also has fundamental duty to renounce practice derogatory to women - At early stage of summons it cannot be said that any of his freedoms is violated by impugned order issuing process.
S.Khushboo Vs. Kanniammal & Anr., 2010 ALL SCR 1475 =(2010) 5 SCC 600 [Para 19,36]
Ranjit D. Udeshi Vs. State of Maharashtra, 2007 ALL SCR (O.C.C.) 178 =AIR 1965 SC 881 [Para 19,33]
State of M.P. Vs. Ram Raghubir Prasad, AIR 1979 SC 888 [Para 31]
Samaresh Bose Vs. Amal Mitra, (1985) 4 SCC 289 : AIR 1986 SC 967 [Para 33]
Dr.Ramesh Prabhu Vs. Prabhakar Kashinath Kunte & Ors., AIR 1996 SC 1113 [Para 34]
Ajay Goswami Vs. Union of India & Ors., 2007 ALL SCR 713=2007 (1) SCC 143 [Para 39]
2. By this petition under Article 227 of the Constitution of India read with Section 482 of Code of Criminal Procedure, the petitioner - original accused is challenging the order dated 8th January 2013 issuing process, which order has been passed by the learned Additional Chief Metropolitan Magistrate, 21st Court, Bandra, Mumbai in C.C.No.3493/SS/2012.
3. The respondent No.1 - complainant filed a complaint alleging offences punishable under section 4 read with 6 of the Indecent Representation of Women (Prohibition) Act, 1986 (hereinafter for short "said Act") and section 292(2)(a) of the Indian Penal Code.
4. The complaint proceeds on the footing that the petitioner and the respondent No.1 were married but they are residing separately in the matrimonial home at 102, Mittal Ocean View, Juhu Tara Road, Santacruz (West), Mumbai 400 054.
5. They are co-owners of the said flat. The respondent No.1 alleges that she resides in the master bed room whereas the petitioner resides in the other bed room. They have common hall, balcony and kitchen. The petitioner accused also has a house in Delhi. He has been residing at Delhi since March 2011. The petitioner accused comes to Mumbai only when the proceedings before the Family Court in Petition No.A-1301 of 2010 are to be heard. In his stay at Mumbai he resides in the other room occupied by him.
6. After narrating as to how the parties were married on 31st October 1998, according to Hindu Vedic rites and ceremonies, it is alleged that on account of their disputes, the petitioner filed the above petition in the family court for dissolution of their marriage by invoking section 13(1)(ia) of Hindu Marriage Act, 1955.
7. The respondent No.1 alleges that they had a pet dog in the matrimonial home who was attached to respondent No.1 complainant. That dog was removed by the petitioner accused from the matrimonial house to the native place at Jaipur. The respondent No.1 complainant states that since March 2011, she adopted two dogs and brought them to her matrimonial home for her safety and security, since she is all alone. There are two domestic male servants. The application in the family court and the disputes which are raised therein are referred to in para 7 to 9 of the complaint.
"10. On 20th July 2012, the accused was home all through the morning and went out at about 3.30 p.m. The complainant was busy in her household chores when suddenly she saw her two male servants giving her strange looks and giggling and whispering between themselves. On seeing the strange behaviour of the male servants, complainant became suspicious and asked them the reason. On this one of the servants told her to go inside the room of accused and see for herself what "Saheb" has done."
"11. The complainant went inside the room and she was shocked and horrified to see that the accused had made two pornographic paintings on the wall, one on a canvass and the other on the wall. The painting on the canvass on the wall depicted a man and a woman in a most vulgar, obscene, sexual pose with the image of the accused in the background. The other painting depicted a half naked woman with two dogs in the picture and something going from a dog towards the woman. The said painting was a very suggestive and obscene painting. The third painting was on the cupboard of the accused where he had written "Lust" "Lost". The complainant felt absolutely embarrassed and humiliated seeing all the vulgar, obscene, suggestive, pornographic paintings and felt very nervous and shameful and when she turned back, she saw both the servants smiling and giving lewd and lascivious looks. The complainant somehow gathered courage and asked both the servants to go and do their work."
"12. The complainant was so overwhelmingly distraught that she could not bear the insult and agony caused to her by the said vulgar, obscene, pornographic and suggestive paintings. She could not control herself and broke down emotionally and locked herself in her room. After about two hours when the servants had taken the dogs out for a stroll, she gathered courage and came out of her room and took the photographs of the said paintings and writing."
"13. The complainant states that during the hearing of the matter in Family Court on 19th October 2012 the accused was confronted with the photographs of the said painting and writing on the cupboard. The accused has admitted having made the said paintings and writing in the cross examination. The said photographs are exhibited at Exhibits 50, 51, 52, 53, 54 and 55 in the evidence recorded in the Family Court."
"14. The complainant states that she is the lone lady in the house with two male servants. The accused is away in Delhi and comes and resides in the matrimonial home whenever the hearing of the case is fixed in the family court. The servants clean the room of the accused everyday and serve him tea, food etc. whenever he is in Mumbai. apart from servants, the driver of the accused also visits the room whenever called by the accused. The complainant feels completely distraught, shameful and embarrassed when the servants have to work in the room in full view of the said vulgar, obscene, pornographic and suggestive paintings."
9. It is alleged that the paintings on the wall depict the woman and /or her body in a indecent, derogatory manner and denigrating women. These paintings are likely to deprave and corrupt or injure the morality or morals. These are, therefore, indecent representations of women and these offences are punishable under section 4 read with section 6 of the said Act.
10. In para 16 of the complaint, it is alleged that the two paintings on the wall are absolutely obscene. They are lascivious and/or appeal to prurient interest and/or are as such in its effect. They tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances to see and read the said paintings on the wall and cupboard. The petitioner has deliberately made such obscene paintings and/or exhibited them knowing fully well that they would be seen by his servants and other persons who would visit and frequent his room. Thus, he has rendered himself liable for offences punishable under section 292(2)(a) of the Indian Penal Code.
11. In para 17 of the complaint, it is alleged that the petitioner has deliberately made the said obscene, vulgar and suggestive paintings coupled with writing on the cupboard only to insult and humiliate respondent No.1 knowing fully well that his room is frequented by all the servants all the time and also visits of his driver and manager at times. These paintings depict a woman in such a way as to have the effect of being indecent and likely to deprave and corrupt morals and it is derogatory to the respondent No.1 - original complainant. The paintings are an insult to a woman in general and womanhood in particular. This complaint was filed on 23rd December 2012 and annexed therewith are the photographs. After the complaint was filed, the verification statement of the respondent No.1 was recorded on 8th January 2013.
"1. Perused the complaint, verification and documents on record. Heard learned Advocate of complainant.
2. Prima facie it appears that, accused made pornographic paintings on the wall and also made obscene images on the wall and also written obscene material due to it complainant suffered and it also amounts to lowering down the image of women and prima facie there are material to proceed against accused for the offences punishable under section 4 read with section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 and under section 292(2)(a) of Indian Penal Code. In the result, following order is passed:-
1. Issue process against accused for the offence punishable under section 4 and 6 of Indecent Representation of Women (Prohibition) Act, 1986 and section 292(2)(a) of the Indian Penal Code on payment of process fee."
14. Mr.Pradhan learned Counsel appearing on behalf of the petitioner submitted that the complaint does not disclose any offence, much less, punishable under section 4 and 6 of the said Act or section 292(2)(a) of the Indian Penal Code. This complaint is a fall out or a counter blast to the matrimonial petition/ proceedings pending in the family court. It is not without any reason that such a complaint has been filed by the respondent No.1. The purpose is obvious and to involve the present petitioner in frivolous proceedings. The petitioner is a well known artist. Even the respondent No.1 is an artist. Therefore, any paintings made on the walls in one's home which is enclosed and particularly within four corners of the bedroom cannot amount to publication/ advertisement within the meaning of the said Act and Penal Code.
15. This is not a matter which touches public morality, public order or law and order. This is in exercise of the artist's right to freedom of speech and expression guaranteed by Article 19(1) (a) of the Constitution of India. Bedroom walls on which these paintings have been painted is a closed room and the expression is thus personal and private. This is not within the four corners of section 292 but rather in furtherance of the right of privacy flowing from Articles 14 and 19 of the Constitution of India.
16. Mr.Pradhan submits that the complaint read as a whole does not disclose any offences and much less punishable under the aforesaid Act and the penal code. It is not enough to allege that the original complainant found the said paintings vulgar. In fact, the requirement in law is not of this nature. If obscene material or article is exhibited publicly or in public view or it depraves or corrupts the public at large, then, possibly section 292 of I.P.C. is attracted. Mr.Pradhan's argument then proceeds further to urge that the paintings were made by the petitioner in his bedroom. A person's dwelling place is his private abode and a restricted area. Any painting made therein does not amount to public display of the questioned material/ article. To constitute an offence, it is necessary that the questioned material/article be put to sale, let on hire, be circulated, distributed and exhibited in public, so that it corrupts the minds of the public at large, who views it. It is pertinent to note that in the present case, there being no publication or circulation of the alleged obscene article, no case has been made out to prosecute the petitioner, for the offences in question.
17. Mr.Pradhan, therefore, lays special emphasis on the object and purpose of the said Act and the scope of section 4. He submits that none of the ingredients of section 4 of the said Act are attracted. The act defines advertising and distribution and advertising or material containing indecent representation of women in any form is prohibited. In the present case, the complaint does not disclose publication or exhibition of the nature contemplated by the said Act.
18. For all these reasons, even if the photographs annexed to the complaint correctly depicts the painting and their contents still, no offence within the meaning of aforesaid provisions of law has been committed. The complaint does not disclose any offence at all. The learned Magistrate, therefore, has erred in law in issuing process and summoning the petitioner accused to answer the charge. The impugned order is thus completely vitiated and by error of law apparent on the face of the record and perversity. It, therefore, deserves to be set aside.
19. Mr.Pradhan has relied upon two decisions of the Hon'ble Supreme Court in the case of S.Khushboo Vs. Kanniammal and Anr., reported in (2010) 5 S.C.C. 600 : [2010 ALL SCR 1475] and in the case of Ranjit D. Udeshi Vs. State of Maharashtra, reported in A.I.R. 1965 S.C. 881 : [2007 ALL SCR (O.C.C.) 178].
20. On the other hand, Mr.Bhambhani, learned Advocate appearing for respondent No.1 - original complainant submitted that a reading of the entire complaint would reveal that the first respondent has not made any grievance of the nature projected by the petitioner. The matrimonial proceedings and the disputes in relation thereto have nothing to do with the allegations in the present complaint. The matrimonial proceedings will be decided on their own merits and in accordance with law. This is a specific act in which the petitioner had indulged and which is not confined, as he falsely alleges, to his own room. There has been no order passed by the family court or any competent court partitioning or dividing the house. It may be that in view of the differences between the parties that within the same house they are using separate rooms for their use and occupation. However, if the petitioner resides in Delhi since March 2011, then, the petitioner has no business to make the paintings which are vulgar, obscene and depict the woman in general in a indecent manner. In these circumstances and when there are specific allegations that the room which is occupied and used by the petitioner is also visited by others and when the two male servants in the house and even the driver enter that room for the purpose of cleaning etc., then, this is not an activity which could be said to be private or within the limits of or confined to the petitioner's bedroom so as not to be termed as an offence. For all these reasons, it is submitted that the petition be dismissed.
21. I have reproduced the allegations in the complaint and which sum up the case of the original complainant - respondent No.1. Before I proceed to refer to the legal provisions, the undisputed position is and even Mr.Pradhan does not deny that the paintings are the same as depicted in the photographs annexed to the plaint. They are of women and some of them depict the woman body either in nude form or semi-nude form. Further, there are certain writings and sketches on the wall also.
22. Mr.Pradhan does not dispute that these paintings are suggestive but urges that there is no offence committed within the meaning of the said Act and the Penal Code. He submits that when the activities of the nature complained of are confined or restricted to the bedroom or portion of the house and occupied exclusively by the petitioner, then, there is no question of the offences being committed. He submits that there is a certain freedom and liberty taken by the Artists and Painters and sketches and nude paintings of such Artists and Painters cannot be said to be denigrating or embarrassing women. Once the legal position is that the Artists' freedom of speech and expression is covered by Article 19(1)(a) of the Constitution of India, then, the act of the present nature cannot be an offence.
23. It is not possible to accept the contentions of Mr.Pradhan because the said Act is an Act to prohibit indecent representation of women through advertisement or any publication, writings, paintings, figures in any manner or in any other manner or for matters connected therewith or incidental thereto. The statement of objects and reasons leading to the said Act reads as under:-
"The law relating to obscenity is codified in sections 292, 293 and 294 of the Indian Penal Code. In spite of these provisions, there is a growing body of indecent representation of women or references to women in publications, particularly advertisements etc., which have the effect of denigrating women and are derogatory to women. Though there may be no specific intention, these advertisements, publications, etc. have an effect of depraving or corrupting persons. It is therefore, felt necessary to have a separate legislation to effectively prohibit the indecent representation of women through advertisements, books, pamphlets etc. Hence this Bill."
Mr.Pradhan's argument is that these paintings are on the wall and neither the sketches or the paintings are sold or distributed nor advertised or published. This argument overlooks two definitions at least. Firstly, the definition of the term "indecent representation of women" must be perused. That is to be found in section 2(c), which reads as under:-
"2(c) "Indecent representation of women" means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals."
24. Therefore, indecent representation of a woman means depiction in any manner of the figure of woman, her form or body or any part thereof which is in such a way as to have the effect of being indecent or derogatory to or denigrating women. If it is likely to deprave, corrupt or injure the public morality or morals. Now the word "advertising" is defined in section 2(a) and that is inclusive definition, which reads as under:-
"2(a)"Advertisement" includes any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas"
25. It includes any notice, circular, label, wrapper or other documents and any visible representation. The distribution is also inclusive concept as defined in section 2(b) so as to take within its fold distribution by way of samples whether free or otherwise. The word "label" is defined in section 2(d). The definition reads as follows:-
"Label" mean any written, marked, stamped, printed or graphic matter, affixed to, or appearing upon, any package"
27. In the present case, the learned Judge has not issued process by invoking section 3. Therefore, there is no question of considering and accepting Mr.Pradhan's argument in the facts of this case as to what is an advertisement and the impugned act being not termed as advertisement. What the Act contemplates is indecent representation of women. The emphasis is on indecent representation of women. The Act prohibits indecent representation of women through advertisement or publication, writings, paintings, figures or in any manner.
"4. Prohibition of publication or sending by post of books, pamphlets, etc; containing indecent representation of women.- No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph , representation or figure which contains indecent representation of women in any form:
Provided that nothing in this section shall apply to-
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure -
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photography, representation or figure is in the interest of science, literature, art, or learning or other objects of general concern; or
(ii) which is kept or used bona fide for religious purpose;
(b) any representation sculptured, engraved, painted or otherwise represented on or in -
(i) any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and Remains Act, 1958 (24 of 1958); or
(ii) any temple, or on any car used or the conveyance of idols, or kept or used for any religious purpose;
(c) any film in respect of which the provisions of Part II of the Cinematograph Act, 1952 (37 of 1952), will be applicable."
29. A bare perusal of section 4 would demonstrate that no person shall produce cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form. The proviso excludes from the section various publications, representations and films.
30. The word publication in the Act has not been defined in the Act and, therefore, that word must receive the ordinary and plain meaning and which could be said to be fitting in the context as well. In Advanced Law Lexicon by P.Ramanatha Iyer, 3rd Edition, Reprint 2007, the word "Publication" is defined as under.
"The act by which a thing is made public. Publication means the act of making the defamatory statement known to any person or persons other than the plaintiff himself. A private and confidential communication to a single, individual is sufficient. Nor need it be published in the sense of being written or printed; for we have seen that actions as well as words may be defamatory."
"PUBLICATION" is accomplished in a variety of ways according to the subject matter. A book or other literary matter is published by being surrendered by its author for public use. Thus, the sale of a MS. copy of a book is a publication of it (While Vs. Veroch, I Chit, 26). But a circulation amongst friends gratuitously, or to pupils e.g. by lectures, is not (Queensbury Vs. Shebbeare, 2 Ex.329; Prince Albert Vs. Strange, 18 LJ Ch.120; Caird Vs. Sime, 12 App Cas 326; Palmer Vs. Dewitt 234 LT 823; Barlett Vs. Crittenden 4, McLean 300); so, of a circulation amongst subscribers for their private use (Exchange Telegraph Co. Vs. Central News, (1897) 2 Ch. 48). Nor is the use of letters as evidence in Court a publication (7 JARMAN CONV. BY SWEET, 628 n)."
"17. ... The real party, in many litigative battles under Article 226 is the community whose processual participation is alien to the adversary system inherited from an individualistic legal culture. The judges are the guardians of that silent sector until our system of procedure is restructured. .."
"21. ... To publish a news item is to make known to people in general; "an advising of the public or making known of something to the public for a purpose". (Black's Legal Dictionary p.1386). In our view, the purpose of section 3 animates the meaning of the expression "publish". "Publication" is the act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny . an advising of the public; a making known of something to them for a purpose."
It cannot be said, therefore, that the allegations in the present complaint do not disclose commission of offences under the said Act. The Act prohibits advertisements containing indecent representation of women and publication or sending by post, books, pamphlets containing indecent representation of women. Therefore, no person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet etc. which contains indecent representation of women in any form. Therefore, Section 4 takes within its fold production, sale, letting on hire, distribution, circulation etc. The word "distribution" is defined not restrictively but illustratively so as to include distribution by way of samples whether free or otherwise. Equally, the word circulation or circulate must be given its ordinary and common sense meaning. In the context in which all these words appear it is clear that depiction in any manner of the figure of a woman, her body or form or any part thereof is what is prohibited. Additionally, prohibition of advertisements and publication or sending by post is envisaged. Therefore, it is not as if the offence is prima facie committed only if the distribution to public is made. Therefore, it is not as if the petitioner has committed no offence within the meaning of this Act because the painting or the figure has been depicted on the walls of one bedroom in a house. Once, that bedroom is allegedly accessible not only to the respondent No.1 but a driver and male servants and even to visitors coming to visit the house of the petitioner, then, all the more, the allegations point towards the commission of the offence. Prima facie the act is covered by section 4 and punishable by section 6 of the said Act. The arguments of Mr.Pradhan are more in the nature of a defence because it is the petitioner who proclaims that the room which he sometimes occupies and whenever in Mumbai, is his exclusive room and that in the same flat the petitioner and respondent No.1 are residing separately. It is the petitioner's case that the paintings on the wall and the caricatures or the figures are not visible or cannot be seen by anybody else. The complaint alleges that the room can be accessed by servants and the paintings are visible also to the neighbours. Therefore, on the version the petitioner, it cannot be said that no offence is committed. On the other hand, if the complaint and the verification statement demonstrates that prima facie an offence is committed, then, the process issued cannot be faulted.
"292. Sale, etc., of obscene books, etc.-
[(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting representation, figure or 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 persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.]
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, reduces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section, shall be punished [on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a 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 five thousand rupees].
[Exception- This section does not extend to-
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure-
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in-
(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.]]"
33. Mr.Pradhan relies upon the judgement of the Supreme Court in the case of Ranjeet Udeshi, [2007 ALL SCR (O.C.C.) 178] (supra). However, if this provision is invoked, then, it is apparent that whoever sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation or has in his possession any obscene book, pamphlet etc., he shall be punished in terms of this section of the IPC. Therefore, it is not as if process is issued only for the offences under the said Act but the complaint discloses prima facie commission of offence under section 292(2)(a) of the IPC. Even with regard thereto, it is ultimately for the Court to decide as to whether the any offence is committed or not. The Supreme Court not only in the case of Ranjeet Udeshi, [2007 ALL SCR (O.C.C.) 178] (supra) but in the later decision in the case of Samaresh Bose Vs. Amal Mitra reported in (1985) 4 S.C.C. 289 = A.I.R. 1986 S.C. 967 held that the Court must come to the conclusion as to whether the offending work comes within the purview of this section. The comment by Mr.Pradhan that the Hon'ble Supreme Court found the work which was subject matter of Ranjeet Udeshi's case, [2007 ALL SCR (O.C.C.) 178] (supra) as obscene and vulgar but later on that work has been not termed as such but saved by the freedom of speech and expression guaranteed by our Constitution and particularly of an Artist. To my mind all these matters cannot be decided at the prima facie stage. It is not expected that a definite, leave alone conclusive or final finding has to be rendered at this stage. It is enough if there is prima facie material. That is definitely there.
34. Mr.Pradhan's arguments overlook atleast two things. That freedom of a citizen under Article 19(1)(a) is not absolute. It is subject to reasonable restrictions and the same enables making a law imposing reasonable restrictions on the exercise of the right in the interest of inter alia public order, decency or morality. The Hon'ble Supreme Court in the case of Dr.Ramesh Prabhu Vs. Prabhakar Kashinath Kunte & Ors. reported in A.I.R. 1996 S.C. 1113 had an occasion to consider the ambit and scope of this fundamental freedom and whether the words "decency or morality" therein have any restricted meaning. The Supreme Court held thus:-
"27. It is true, as argued by Shri Jethmalani, that the freedom of speech and expression guaranteed to all citizens under Article 19(1)(a) is absolute subject to the reasonable restrictions imposed by any law saved by clause (2) of the Article 19, under one of the heads specified therein. The heads specified in clause (2) of Article 19 are, therefore, several and they are intended to cover the entire area within which the absolute freedom to say anything which the speaker may like would not extend, in keeping with the standards of a civilised society, the corresponding rights in others in an orderly society, and the constitutional scheme."
"28. The expression "in the interests of" used in clause (2) of Article 19 indicates a wide amplitude of the permissible law which can be enacted to provide for reasonable restrictions on the exercise of this right under one of the heads specified therein, in conformity with the constitutional scheme. Two of the heads mentioned are: decency or morality. Thus any law which imposes reasonable restrictions on the exercise of this right in the interest of decency or morality is also saved by clause (2) of Article 19. Shri Jethmalani contended that the words "decency or morality" relate to sexual morality alone. In view of the expression "in the interest of" and the context of election campaign for a free and fair poll, the right to contest the election being statutory and subject to the provisions of the Statute, the words "decency or morality" do not require a narrow or pedantic meaning to be given to these words. The dictionary meaning of decency is "correct and tasteful standards of behaviour as generally accepted; conformity with current standards of behaviour or propriety; avoidance of obscenity; and the requirements of correct behaviour" (The Oxford Encyclopedic English Dictionary); "conformity to the prevailing standards of propriety, morality, modesty, etc; and the quality of being decent" (Collins English Dictionary)."
"29. Thus, the ordinary dictionary meaning of "decency" indicates that the action must be in conformity with the current standards of behaviour or propriety, etc. In a secular polity, the requirement of correct behaviour or propriety is that an appeal for votes should not be made on the ground of the candidate's religion which by itself is no index of the suitability of a candidate for membership of the house. In Knuller (Publishing, Printing and promotions) Ltd., Vs. Director of Public Prosecutions (1972) 2 ALL ER 898 the meaning of "indecency" was indicated as under:-
".......... Indecency is not confined to sexual indecency; indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting....."
35. Thus, going by the ordinary dictionary meaning, what is not decent is indecent and that which is not correct and tasteful standards of behaviour is indecent. Further, one cannot ignore the fundamental duties of every citizen of India. There cannot be a right without corresponding duty. It is the duty of every citizen to renounce practices derogatory to the dignity of women (see Article 51A(e). Therefore, I have no hesitation in my mind in holding that the order issuing process cannot be interfered with on the ground that Article 19(1)(a) of the Constitution of India is violated. Further, the right of privacy or life and liberty guaranteed by Article 21 of the Constitution is also not violated by an order issuing process on a complaint of present nature because what the petitioner terms as confined or restricted and private activity cannot be decided by his version alone. It is ultimately for the court to decide as to whether the offence under section 4 of the said Act is not committed as urged by the petitioner or that it is committed as asserted by the respondent No.1. That would depend upon oral and documentary evidence led by the prosecution and the defence and their arguments. At the stage at which the matter stands namely, issuance of process, it cannot be held that any of the fundamental freedoms and particularly as noted above, have been violated by the order issuing process.
36. Mr.Pradhan's arguments also overlook the fact that the judgement in the case of Khushboo, [2010 ALL SCR 1475] (supra) does not mean that the order issuing process should be quashed and set aside, even if the allegations in the complaint disclose commission of an offence.
"21. There can be no quarrel about this Court's competence to quash criminal proceedings pending before the subordinate courts. However, this power must be exercised sparingly and with circumspection. In light of the position summarized above, we can examine the present case with two considerations in mind, namely whether the allegations made against the appellant support a prima facie case for the offences mentioned in the respective complaints, and whether the complaints were made in a bona fide manner.
22. A perusal of the complaints reveals that most of the allegations have pertained to offences such as defamation (Sections 499, 501 and 502 IPC), obscenity (Section 292 IPC), indecent representation of women and incitement among others. At the outset, we are of the view that there is absolutely no basis for proceeding against the appellant in respect of some of the alleged offences. For example, the Act, 1986 was enacted to punish publishers and advertisers who knowingly disseminate materials that portray women in an indecent manner. However, this statute cannot be used in the present case where the appellant has merely referred to the incidence of pre-marital sex in her statement which was published by a news magazine and subsequently reported in another periodical. It would defy logic to invoke the offences mentioned in this statute to proceed against the appellant, who cannot be described as an 'advertiser' or 'publisher' by any means.
23. Similarly, Section 509 IPC criminalises a 'word, gesture or act intended to insult the modesty of a woman' and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act. Clearly this offence cannot be made out when the complainants' grievance is with the publication of what the appellant had stated in a written form. ......
24. Coming to the substance of the complaints, we fail to see how the appellant's remarks amount to 'obscenity' in the context of Section 292 IPC. Clause (1) to Section 292 states that the publication of a book, pamphlet, paper, writing, drawing, painting, representation, figure, etc., will be deemed obscene, if -
It is lascivious (i.e. expressing or causing sexual desire) or
Appeals to the prurient interest (i.e. excessive interest in sexual matters), or
If its effect, or the effect of any one of the items, tends to deprave and corrupt persons, who are likely to read, see, or hear the matter contained in such materials.
In the past, authors as well as publishers of artistic and literary works have been put to trial and punished under this section.
25. In the present case, the appellant takes full responsibility for her statement which was published in 'India Today', a leading news magazine. It would be apt to refer back to the decision of this Court in Ranjit D. Udeshi Vs. State of Maharashtra, (AIR 1965 SC 881), wherein it was held that if a mere reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. It was observed that in the field of art and cinema, the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions, the same are taken for granted without in any way tending to debase or debauch the mind. What is to be considered is whether a class of persons, not an isolated case, into whose hands the book, article or story falls will suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. Even though the decision in that case had upheld a conviction for the sale of a literary work, it became clear that references to sex cannot be considered obscene in the legal sense without examining the context of the reference.
26. This position was later clarified in Samaresh Bose Vs. Amal Mitra, (AIR 1986 SC 967), where the Court held that:
"29. .... 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 viewpoint of the author, the judge should try to understand what is it that the author seeks to convey and whether 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 on the minds of the readers."
27. There are numerous other decisions, both from India and foreign country which mandate that 'obscenity' should be gauged with respect to contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person. Owing to the clear formulation on this issue it is not necessary for us to discuss these precedents at length."
38. The decision is rendered in this case by the Hon'ble Supreme Court on the basis of the facts as noted namely filing of 23 complaints against Ms.Khushboo. That was because she expressed her opinion on pre-marital sex and which was printed and published in the media. The Hon'ble Supreme Court respecting her right to express her own opinion, even on such a touchy and delicate subject quashed the complaints because there institution itself was found to be malafide and causing undue embarrassment and harassment to a woman only because she fearlessly expressed her independent/individual opinion. Such is not a case here. Whether the petitioner was proceeded against only because of the matrimonial disputes and, therefore, the complaint is vexatious or not, cannot be decided at this stage. Prima facie, there is no argument that the institution of the complaint is malafide or that it is a gross abuse of the process of the Court.
39. In the case of Ajay Goswami Vs. Union of India and Ors., reported in 2007 (1)SCC 143 : [2007 ALL SCR 713], the Hon'ble Supreme Court held that the standards to be adopted for judging decency the test should be that of an ordinary man of common sense and prudence and not out of the ordinary and hyper sensitive man. Ultimately, after referring to the said Act , and section 292 of the Penal Code in particular and taking review of the Legislation, on Decency, the Supreme Court referred to the observations aforesaid. (See paras 68 and 71).
40. For the above reasons, it is not possible to agree with Mr.Pradhan that the complaint discloses no offence punishable under either of the provisions of IPC or Indecent Representation of Women's Act or that continuation of proceedings in pursuance thereof is an abuse of the process of law. Once the complaint discloses as above, then, it cannot be thrown out at the threshold as prayed by the petitioner and particularly on the ground of his absolute right of freedom of speech and expression. It cannot be thrown out on the ground that the work is confined and restricted in private area or private room as well. Once, the areas in the flat or the rooms are not demarcated, the flat is not divided, the petitioner ordinarily resides at Delhi but he and respondent No.1 are only occupying different rooms, then, it cannot be held that the petitioner exercised his right to paint in his own bedroom in furtherance of his right to privacy and life and liberty guaranteed by the Constitution. The allegations clearly point out that the room which is not frequently used and occupied by the petitioner is open to servants and driver and the paintings can be seen by them as also the respondent No.1, then, all the more, it would not be proper to quash the complaint. In the result petition is dismissed. Rule is discharged. No costs. However, it is clarified that all observations in the present order so also in the order issuing process are prima facie and tentative. They shall not influence the trial court while deciding the case. Further, it is not as if the respondent No.1 will not have to discharge the burden in law. She has to prove her allegations independent of the prima facie findings.
41. At this stage, Ms.Khot, learned Counsel appearing on behalf of the petitioner, prays that the ad-interim order be continued so as to enable the petitioner to challenge this judgement in a higher court. That request is opposed by learned Counsel appearing for respondent No.1/ original complainant.
42. Heard Advocates on this point. Without prejudice to the rights and contentions of the parties, the Advocate for the respondent No.1/ original complainant states that the respondent No.1/ original complainant will not proceed with the criminal case till 30th June 2013. Statement is accepted. Hence, no question of continuation of the ad-interim order arises or needs to be considered.