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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.902 OF 2004

Aveek Sarkar & Anr. .. Appellants

Versus

State of West Bengal & Ors. .. Respondents

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1.   A  German  magazine  by  name  “STERN”  having  

worldwide circulation published an article with a picture of  

Boris Becker, a world renowned Tennis player, posing nude  

with his dark-skinned fiancée by name Barbara Feltus, a film  

actress,  which was  photographed by none other  than her  

father.  The article states that, in an interview, both Boris  

Becker  and  Barbaba  Feltus  spoke  freely  about  their

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engagement, their lives and future plans and the message  

they wanted to convey to the people at large, for posing to  

such  a  photograph.   Article  picturises  Boris  Becker  as  a  

strident protester of the pernicious practice of “Apartheid”.  

Further,  it  was stated that the purpose of the photograph  

was also to signify that love champions over hatred.   

2. “Sports World”, a widely circulated magazine published  

in India reproduced the article and the photograph as cover  

story in its Issue 15 dated 05.05.1993 with the caption  

“Posing nude dropping out of tournaments, battling Racism in Germany. Boris  Becker explains his recent approach to life” – Boris Becker

             Unmasked.   

3. Anandabazar  Patrika,  a  newspaper  having  wide  

circulation in Kolkata, also published in the second page of  

the newspaper the above-mentioned photograph as well as  

the article on 06.05.1993, as appeared in the Sports World.   

4. A lawyer practicing at  Alipore Judge’s  Court,  Kolkata,  

claimed to be a regular reader of Sports World as well as

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Anandabazar Patrika filed a complaint under Section 292 of  

the  Indian  Penal  Code  against  the  Appellants  herein,  the  

Editor and the Publisher and Printer of the newspaper as well  

as against the Editor of the Sports World, former Captain of  

Indian Cricket Team, late Mansoor Ali Khan of Pataudi, before  

the Sub-Divisional Magistrate at Alipore.  Complaint stated  

that as an experienced Advocate and an elderly person, he  

could vouchsafe that the nude photograph appeared in the  

Anandabazar Patrika, as well as in the Sports World, would  

corrupt  young  minds,  both  children  and  youth  of  this  

country, and is against the cultural and moral values of our  

society.  The complainant stated that unless such types of  

obscene photographs are censured and banned and accused  

persons  are  punished,  the  dignity  and  honour  of  our  

womanhood  would  be  in  jeopardy.   The  complainant  also  

deposed  before  the  Court  on  10.5.1993,  inter  alia,  as  

follows :

“………That the Accused No.1 and the Accused No.2  both the editors of Ananda Bazar Patrika and Sports  World respectively intentionally and deliberately with  the help of the Accused No.3 for the purpose of their  business,   particularly for sale of their papers and

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magazines published, printed and publicly exhibited  and  circulated  and  also  sold  their  papers  and  magazines namely, Anand Bazar Patrika and Sports  World  dated  6.5.1993  wherein  the  photograph  of  world class Lawn Tennis player namely, Boris Becker  and his girl friend German Film Actress Miss Barbara  have been published in a manner in an inter-twined  manner wherein Boris Becker placed the hand upon  the breast of Miss Barbara which have annexed in  my petition with a caption ‘Boris Backer Un-masked’  which is absolutely obscene and lascivious in nature  and which is a criminal offence.  The obscene and  about  nude  photographs  show  published  by  the  accused persons in  the mind of  myself  as well  as  society  of  different  age  group  have  a  very  bad  impact……..”

5. The  learned  Magistrate  on  10.5.1993  passed  the  

following order in Criminal Case Ref. Case No.C.796 of 1993 :

‘Complainant  is  present.   He  is  examined  and  discharged.  No other PWs are present.  It appears  that  a  prima  facie  case  is  made  out  against  the  accused  persons  under  Section  292  IPC.   Issue  summons  against  all  the  accused  persons  fixing  17.6.1993 for  S.P.  and appearance.    Requisite  at  one.”

6. 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  

Representation of Women (Prohibition) Act, 1986, since the  

photograph  prima  facie gives  a  sexual  titillation  and  its

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impact is moral degradation and would also encourage the  

people to commit sexual offences.  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  in  the  Sports  World  as  well  as  in  the  

Anandabazar  Patrika  of  the  news  item  and  photograph  

appeared  in  a  magazine  ‘STERN”  published  in  Germany.  

Further, it was pointed out that the said magazine was never  

banned  entry  into  India  and  was  never  considered  as  

‘obscene’, especially when Section 79 of Indian Penal Code  

states that nothing is an offence which is done by any person  

who is justified by law, or who by reason of a mistake of fact  

and not reason of a mistake of law in good faith, believes  

himself to be justified by law, in doing it.   

 7. The Court after seeing the photographs and hearing the  

arguments on either side, held as follows :-

“Moreover,  until  evidence  comes  in  it  will  not  be  proper to give any opinion as to the responsibility of  the  accused  persons.   But  I  feel  it  pertinent  to  mention that though the Section 292 does not define  word  ‘obscene’,  but  my  rids  of  precedents  have  clustered round on this point and being satisfied with

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the materials on record, pernicious effect of picture  in  depraving  and  debauching  the  mind  of  the  persons into whose hands it may come and also for  other sufficient reasons to proceed further this Court  was  pleased to  issue process  against  the accused  persons under Section 292 I.P.C.  At present having  regard  to  the  facts  of  the  case,  I  find  the  matter  merits interference by not dropping the proceedings  as prayed for.  It is too early to say that the accused  persons  are  entitled  to  get  benefit  of  Section  79  I.P.C.”

8. The  Magistrate  after  holding  so,  held  the  accused  

persons  to  be  examined  under  Section  251  Cr.P.C.  and  

ordered  that  they  would  be  put  to  face  the  trial  for  the  

offence punishable under Section 292 IPC alternatively under  

Section  4  of  the  Indecent  Representation  of  Women  

(Prohibition) Act, 1986.  

9. The  Appellants  herein  preferred  Criminal  Revision  

No.1591 of  1994 before the High Court  of  Calcutta under  

Section  482  Cr.P.C.  for  quashing  the  proceedings  in  Case  

No.C.796  of  1993  (corresponding  to  T.R.  No.35  of  1994)  

pending before the learned Judicial Magistrate Court, Alipore.  

Before the High Court, it was pointed out that the Magistrate  

had not properly appreciated the fact that there was no ban

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in importing the German sports magazine ‘STERN” into India.  

Consequently, reproduction of any picture would fall within  

the  general  exception  contained  in  Section  79  IPC.  

Reference  was  also  made  to  letter  dated  20th July,  1993  

addressed  by  the  Assistant  Editor,  Sports  World  to  the  

Collector, Calcutta Customs and a copy of the letter dated  

4.10.1993 sent by the Deputy Collector, Calcutta Customs to  

the Assistant Editor, Sports World.   Referring to the picture,  

it  was pointed out that the picture only demonstrates the  

protest lodged by Boris Becker as well as his fiancée against  

‘apartheid” and those facts were not properly appreciated by  

the learned Magistrate.  Further, it was also pointed out that  

the  offending  picture  could  not  be  termed  as  obscene  

inasmuch as nudity per se was not obscene and the picture  

was neither suggestive nor provocative in any manner and  

would have no affect on the minds of the youth or the public  

in general.   Further, it was also pointed out that the learned  

Magistrate  should  not  have  issued  summons  without  

application  of  mind.    The  High  Court,  however,  did  not  

appreciate all those contentions and declined to quash the

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proceedings under  Section  483 Cr.P.C.,  against  which this  

appeal has been preferred.  

10. Shri Pradeep Ghosh, learned senior counsel, appearing  

for the Appellants, submitted that the publication in question  

as  well  as  the  photograph  taken,  as  a  whole  and  in  the  

background of facts and circumstances, cannot be said to be  

per se “obscene” within the meaning of Section 291(1) IPC  

so as to remand a trial of the Appellants in respect of the  

alleged  offence  under  Section  292(1)  IPC.   The  learned  

counsel pointed out that obscenity has to be judged in the  

context of contemporary social  mores,  current socio-moral  

attitude  of  the  community  and  the  prevalent  norms  of  

acceptability/ susceptibility of the community, in relation to  

matters in issue.   In support of this contention, reliance was  

placed on the Constitution Bench judgment of this Court in  

Ranjit D. Udeshi v. State of Maharashtra  AIR 1965 SC  

881.  Reference was also made to the judgment of this Court  

in   Chandrakant  Kalyandas  Kakodar  v.  State  of   

Maharashtra  1969 (2)  SCC 687.    Few other  judgments

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were also referred to in support of his contention.  Learned  

senior counsel also pointed out that the learned Magistrate  

as well  as the High Court have completely overlooked the  

context  in  which  the  photograph  was  published  and  the  

message it had given to the public at large.  Learned senior  

counsel also pointed out that the photograph is in no way  

vulgar or lascivious.   Learned senior counsel also pointed  

out that the Courts below have not properly appreciated the  

scope of Section 79 IPC and that the Appellants are justified  

in law in publishing the photograph and the article which was  

borrowed  from  the  German  magazine.   Learned  senior  

counsel also pointed out that such a publication was never  

found to be obscene even by the State authorities and no FIR  

was  ever  lodged  against  the  Appellants  and  a  private  

complaint of such a nature should not have been entertained  

by the learned Magistrate without appreciating the facts as  

well as the law on the point.   Learned senior counsel pointed  

out that the High Court ought to have exercised jurisdiction  

under Section 482 Cr.P.C.

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11. Shri  Mohit  Paul,  learned  counsel,  appearing  for  the  

Respondents, submitted that the Courts below were justified  

in holding that it would not be proper to give an opinion as to  

the culpability of the accused persons unless they are put to  

trial and the evidence is adduced.  Learned counsel pointed  

out  that  the  question  whether  the  publication  of  the  

photograph is justified or not and was made in good faith  

requires to be proved by the Appellants since good faith and  

public good are questions of fact and matters for evidence.  

Learned counsel pointed out that the learned Magistrate as  

well  as  the  High  Court  was  justified  in  not  quashing  the  

complaint and ordering the Appellants to face the trial.

TEST OF OBSCENITY AND COMMUNITY STANDARDS

12. Constitution  Bench of  this  Court  in  the  year  1965 in  

Ranjit  D.  Udeshi (supra)  indicated  that  the  concept  of  

obscenity would change with the passage of time and what  

might have been “obscene” at one point of time would not  

be considered as obscene at a later period.  Judgment refers

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to  several  examples  of  changing  notion  of  obscenity  and  

ultimately the Court observed as follows :-

“…. The world,  is now able to tolerate much more  than formerly, having coming indurate by literature  of different sorts.  The attitude is not yet settled…..”

This is what this Court has said in the year 1965.

13. Again in the year 1969, in  Chandrakant Kalyandas  

Kakodar (supra),  this  Court  reiterated  the  principle  as  

follows:-

“The standards of contemporary society in India are  also fast changing. “   

14. Above  mentioned  principle  has  been  reiterated  in  

Samaresh Bose v. Amal Mitra (1985) 4 SCC 289 by laying  

emphasis  on  contemporary  social  values  and  general  

attitude of ordinary reader. Again in 2010, the principle of  

contemporary community standards and social values have  

been reiterated in  S. Khushboo V. Kanniammal  (2010) 5  

SCC 600.   

15. This Court in Ranjit D. Udeshi (supra) highlighted the  

delicate  task  to  be  discharged  by  the  Courts  in  judging

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whether the word, picture, painting, etc. would pass the test  

of obscenity under Section 292 of the Code and the Court  

held as follows :

“The Penal Code does not define the word obscene  and this delicate task of how to distinguish between  that which is artistic and that which is obscene has  to be performed by courts, and in the last resort by  the Supreme Court.  The test must obviously be of a  general  character  but  it  must  admit  of  a  just  application from case to case by indicating a line of  demarcation  not  necessarily  sharp  but  sufficiently  distinct to distinguish between that which is obscene  and that which is not.  None has so far attempted a  definition of obscenity because the meaning can be  laid  bare  without  attempting  a  definition  by  describing what must be looked for. It may, however,  be said at once that treating with sex and nudity in  art and literature cannot be regarded as evidence of  obscenity  without  something  more.   The  test  of  obscenity must square with the freedom of speech  and expression guaranteed under our Constitution.  This  invites  the  court  to  reach  a  decision  on  a  constitutional issue of a most far reaching character  and it must beware that it may not lean too far away  from the guaranteed freedom.”

16.   Applying  the  above  test,  to  the  book  “Lady  

Chatterley’s Lover”, this Court in  Ranjit D. Udeshi (supra)  

held that in treating with sex the impugned portions viewed  

separately and also in the setting of the whole book passed  

the  permissible  limits  judged  of  from  our  community

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standards and there was no social gain to the public which  

could  be  said  to  preponderate  the  book  must  be  held  to  

satisfy the test of obscenity.  

17. The novel “Lady Chatterley’s Lover” which came to be  

condemned as  obscene by this  Court  was  held  to  be  not  

obscene in England by Central Criminal Court.   In England,  

the  question  of  obscenity  is  left  to  the  Jury.    Byrne,  J.,  

learned Judge who presided over the Central Criminal Court  

in  R. v. Penguin Books Ltd. (1961 Crl. Law Review 176)  

observed as follows :-   

“In summing up his lordship instructed the jury that:  They  must  consider  the  book  as  a  whole,  not  selecting passages here and there and, keeping their  feet on the ground, not exercising questions of taste  or the functions of a censor. The first question, after  publication  was:  was  the  book  obscene?  Was  its  effect  taken  as  a  whole  to  tend  to  deprave  and  corrupt persons who were likely, having regard to all  the circumstances, to read it? To deprave meant to  make morally bad, to pervert, to debase or corrupt  morally. To corrupt meant to render morally unsound  or rotten, to destroy the moral purity or chastity, to  pervert or ruin a good quality, to debase, to defile.  No intent to deprave or corrupt was necessary. The  mere  fact  that  the  jury  might  be  shocked  and  disgusted by the book would not solve the question.  Authors  had  a  right  to  express  themselves  but

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people with strong views were still members of the  community and under an obligation to others not to  harm them morally, physically or spiritually. The jury  as  men and women of  the  world,  not  prudish but  with liberal  minds,  should ask themselves was the  tendency of the book to deprave and corrupt those  likely  to  read  it,  not  only  those  reading  under  guidance  in  the  rarefied  atmosphere  of  some  educational institution, but also those who could buy  the book for three shillings and six pence or get it  from  the  public  library,  possibly  without  any  knowledge of Lawrence and with little knowledge of  literature.  If  the  jury  were  satisfied  beyond  reasonable doubt that the book was obscene, they  must then consider the question of its being justified  for public good in the interest of science, literature,  art or learning or other subjects of general concern.  Literary merits were not sufficient to save the book,  it must be justified as being for the public good. The  book was not to be judged by comparison with other  books. If it  was obscene then if the defendant has  established  the  probability  that  the  merits  of  the  book as a novel were so high that they outbalanced  the obscenity so that the publication was the public  good, the jury should acquit.”

18. Later, this Court in  Samaresh Bose (supra), referring  

to the Bengali novel “Prajapati” written by Samaresh Bose,  

observed as follows :-  

“35. .................. We are not satisfied on reading the  book  that  it  could  be  considered  to  be  obscene.  Reference to kissing, description of the body and the  figures  of  the  female  characters  in  the  book  and  suggestions of acts of sex by themselves may not  have  the  effect  of  depraving,  debasing  and

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encouraging the readers of any age to lasciviousness  and  the  novel  on  these  counts,  may  not  be  considered to be obscene. It is true that slang and  various unconventional words have been used in the  book. Though there is no description of any overt act  of  sex,  there  can  be  no  doubt  that  there  are  suggestions  of  sex  acts  and  that  a  great  deal  of  emphasis on the aspect of sex in the lives of persons  in various spheres of society and amongst various  classes  of  people,  is  to  be  found  in  the  novel.  Because  of  the  language  used,  the  episodes  in  relation  to  sex  life  narrated  in  the  novel,  appear  vulgar  and  may  create  a  feeling  of  disgust  and  revulsion. The mere fact that the various affairs and  episodes with emphasis on sex have been narrated  in  slang and vulgar  language may shock a reader  who may feel disgusted by the book does not resolve  the question of obscenity...............”

We  have  already  indicated,  this  was  the  contemporary  

standard in the year 1985.

19. We are, in this case, concerned with a situation of the  

year  1994,  but  we  are  in  2014  and  while  judging  as  to  

whether  a  particular  photograph,  an  article  or  book  is  

obscene,  regard must  be had to  the contemporary  mores  

and national standards and not the standard of a group of  

susceptible or sensitive persons.   

HICKLIN TEST:

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20. In the United Kingdom, way back in 1868, the Court laid  

down the Hicklin test in Regina v. Hicklin (1868 L.R. 2 Q.B.

360), and held as follows :-

“The test of obscenity is whether the tendency of the  matter  charged  as  obscenity  is  to  deprave  and  corrupt those whose minds are open to such immoral  influences and into whose hands a publication of this  sort may fall.”

21. Hicklin  test  postulated  that  a  publication  has  to  be  

judged for obscenity based on isolated passages of a work  

considered  out  of  context  and  judged  by  their  apparent  

influence on most susceptible readers,  such as children or  

weak-minded  adults.    United  States,  however,  made  a  

marked departure.  Of late, it felt that the Hicklin test is not  

correct test to apply to judge what is obscenity.  In Roth v.  

United States 354 U.S. 476 (1957), the Supreme Court of  

United States directly dealt with the issue of obscenity as an  

exception to freedom of speech and expression.   The Court  

held that the rejection of “obscenity” was implicit in the First  

Amendment.  Noticing that sex and obscenity were held not  

to be synonymous with each other, the Court held that only

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those  sex-related  materials  which  had  the  tendency  of  

“exciting lustful thoughts” were found to be obscene and the  

same has to be judged from the point of view of an average  

person by applying contemporary community standards.    

22. In  Canada  also,  the  majority  held  in  Brodie  v.  The  

Queen (1962 SCR 681) that  D.H.  Lawrence’s  novel  “Lady  

Chatterley’s Lover” was not obscene within the meaning of  

the Canadian Criminal Code

23. The  Supreme  Court  of  Canada  in  Regina  v.  Butler  

(1992)  1  SCR  452,  held  that  the  dominant  test  is  the  

“community standards problems test”.   The Court held that  

explicit  sex  that  is  not  violent  and  neither  degrading  nor  

dehumanizing is generally tolerated in the Canadian society  

and will not qualify as the undue exploitation of sex unless it  

employs children in its production.   The Court held, in order  

for  the  work  or  material  to  qualify  as  ‘obscene’,  the  

exploitation  of  sex  must  not  only  be  a  dominant  

characteristic,  but  such  exploitation  must  be  “undue”.  

Earlier  in  Towne Cinema Theatres Ltd.  v.  The Queen

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(1985)  1  SCR  494,  the  Canadian  Court  applied  the  

community standard test and not Hicklin test.

COMMUNITY STANDARD TEST:

24. We are  also  of  the  view that  Hicklin  test  is  not  the  

correct test to be applied to determine “what is obscenity”.  

Section 292 of the Indian Penal Code, of course, uses the  

expression  ‘lascivious  and  prurient  interests’  or  its  effect.  

Later, it has also been indicated in the said Section of the  

applicability  of  the  effect  and the  necessity  of  taking  the  

items as a whole and on that foundation where such items  

would tend to deprave and corrupt persons who are likely,  

having regard to all the relevant circumstances, to read, see  

or hear the matter contained or embodied in it.  We have,  

therefore,  to  apply  the  “community  standard  test”  rather  

than “Hicklin test” to determine what is “obscenity”.  A bare  

reading of Sub-section (1) of Section 292 , makes clear that  

a picture or article shall be deemed to be obscene (i) if it is  

lascivious; (ii) it appeals to the prurient interest, and (iii) it

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tends to deprave and corrupt persons who are likely to read,  

see or hear the matter,  alleged to be obscene.  Once the  

matter is found to be obscene, the question may arise as to  

whether  the  impugned  matter  falls  within  any  of  the  

exceptions contained in Section.  A picture of a nude/semi-

nude  woman,  as  such,  cannot  per  se  be  called  obscene  

unless it has the tendency to arouse feeling or revealing an  

overt  sexual  desire.   The picture  should  be  suggestive  of  

deprave  mind  and  designed  to  excite  sexual  passion  in  

persons who are likely to see it, which will depend on the  

particular  posture  and  the  background  in  which  the  

nude/semi-nude woman is depicted.  Only those sex-related  

materials  which  have  a  tendency  of  “exciting  lustful  

thoughts” can be held to be obscene, but the obscenity has  

to be judged from the point of view of an average person, by  

applying contemporary community standards.   

MESSAGE AND CONTEXT

25. We have to examine the question of obscenity in the  

context in which the photograph appears and the message it

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wants to convey.  In  Bobby Art International & Ors. v.   

Om  Pal  Singh  Hoon  (1996)  4  SCC  1,  this  Court  while  

dealing with the question of obscenity in the context of film  

called  Bandit  Queen  pointed  out  that  the  so-called  

objectionable scenes in the film have to be considered in the  

context of the message that the film was seeking to transmit  

in respect of social menace of torture and violence against a  

helpless female child which transformed her into a dreaded  

dacoit.  The Court expressed the following view :-

“First,  the scene where she is  humiliated,  stripped  naked, paraded, made to draw water from the well,  within the circle of a hundred men. The exposure of  her breasts and genitalia to those men is intended  by those who strip her to demean her. The effect of  so  doing  upon  her  could  hardly  have  been  better  conveyed than by explicitly showing the scene. The  object  of  doing  so  was  not  to  titillate  the  cinemagoer’s lust but to arouse in him sympathy for  the  victim  and  disgust  for  the  perpetrators. The  revulsion  that  the  Tribunal  referred  to  was  not  at  Phoolan  Devi’s  nudity  but  at  the  sadism  and  heartlessness of those who had stripped her naked  to rob her of every shred of dignity. Nakedness does  not always arouse the baser instinct.  The reference  by the Tribunal to the film “Schindler’s List” was apt.  There  is  a  scene  in  it  of  rows  of  naked men and  women,  shown  frontally,  being  led  into  the  gas  chambers of a Nazi concentration camp. Not only are  they  about  to  die  but  they  have been stripped in

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their  last  moments  of  the  basic  dignity  of  human  beings. Tears are a likely reaction; pity, horror and a  fellow-feeling  of  shame  are  certain,  except  in  the  pervert who might be aroused. We do not censor to  protect the pervert or to assuage the susceptibilities  of the over-sensitive. “Bandit Queen” tells a powerful  human story and to that story the scene of Phoolan  Devi’s enforced naked parade is central. It helps to  explain why Phoolan Devi became what she did: her  rage  and  vendetta  against  the  society  that  had  heaped indignities upon her.”

[Emphasis Supplied]

26. In Ajay Goswami v. Union of India (2007) 1 SCC 143,  

while examining the scope of Section 292 IPC 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.

27. We have to examine whether the photograph of Boris  

Becker with his fiancée Barbara Fultus, a dark-skinned lady  

standing close to each other bare bodied but covering the  

breast  of  his  fiancée  with  his  hands  can  be  stated  to  be

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objectionable  in  the  sense  it  violates  Section  292  IPC.  

Applying the community tolerance test, we are not prepared  

to say such a photograph is  suggestive of  deprave minds  

and designed to excite sexual passion in persons who are  

likely to look at them and see them, which would depend  

upon  the  particular  posture  and background in  which  the  

woman is depicted or shown.   Breast of Barbara Fultus has  

been  fully  covered  with  the  arm  of  Boris  Becker,  a  

photograph, of course, semi-nude, but taken by none other  

than the father of Barbara.  Further, the photograph, in our  

view, has no tendency to deprave or corrupt the minds of  

people  in  whose  hands  the  magazine  Sports  World  or  

Anandabazar Patrika would fall.   

28. We may also indicate that 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  cover  story  of  the  Magazine  carries  the  title,  

posing  nude,  dropping  of  harassment,  battling  racism  in  

Germany.  Boris Becker himself in the article published in the

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German  magazine,  speaks  of  the  racial  discrimination  

prevalent  in  Germany  and  the  article  highlights  Boris  

Becker’s protests against racism in Germany.   Boris Becker  

himself puts it, as quoted in the said article:

“the  nude  photos  were  supposed  to  shock,  no  doubt about it.......  What I  am saying with these  photos is that an inter-racial relationship is okay.”  

29. The message, the photograph wants to convey is that  

the  colour  of  skin  matters  little  and love champions  over  

colour.   Picture promotes love affair, leading to a marriage,  

between a white-skinned man and a black skinned woman.   

30. We should,  therefore,  appreciate the photograph and  

the article in the light of the message it wants to convey,  

that is to eradicate the evil of racism and apartheid in the  

society and to promote love and marriage between white  

skinned man and a black skinned woman.   When viewed in  

that angle, we are not prepared to say that the picture or the  

article  which  was  reproduced  by  Sports  World  and  the  

Anandabazar  Patrika  be said  to  be objectionable  so  as  to  

initiate proceedings under Section 292 IPC or under Section

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4 of the Indecent Representation of Women (Prohibition) Act,  

1986.

31. We have found that  no offence has  been committed  

under Section 292 IPC and then the question whether it falls  

in the first part of Section 79 IPC has become academic.  We  

are sorry to note that the learned Magistrate, without proper  

application of mind or appreciation of background in which  

the  photograph  has  been  shown,  proposed  to  initiate  

prosecution  proceedings  against  the  Appellants.  Learned  

Magistrate should have exercised his wisdom on the basis of  

judicial precedents in the event of which he would not have  

ordered the Appellants to face the trial.  The High Court, in  

our view, should have exercised powers under Section 482  

Cr.P.C. to secure the ends of justice.   

32. We are, therefore, inclined to allow this appeal and set  

aside  the  criminal  proceedings  initiated  against  the  

Appellants.   The Appeal is allowed as above.  

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……………………………..J. (K. S. Radhakrishnan)

.….………………………...J. (A.K. Sikri)    

New Delhi, February 03, 2014.