ABHIK SARKAR Vs. STATE

JUDGEMENT

(1.) The instant application under Section 482 of the Code of Criminal Produre has been preferred by the petitioners seeking quashing of the proceeding being Case No. C-796 of 1993 corresponding to T.R. No. 35 of 1994 pending in the Court of the Ld. Judicial Magistrate, First Court, Alipore, South 24-Parganas. Petitioner No. 1 Sri Abhik Sarkar is the editor, Ananda Bazar Patrika and Petitioner No. 2 Sri Pabitra Kumar Mukherjee is the publisher and printer, Ananda Bazar Patrika Ltd. The facts anterior to filing of the application under Section 482 of the Code of Criminal Procedure may briefly be narrated thus. On 7-5-93 a petition of complaint was filed by the complainant presently O.P. No. 2 Sri Sourendra Nath Basu an Advocate practising at Alipore Judge's Court against the present petitioners alleging commission of an offence under Section 292 of I.P.C. As per the case of the complainant he is a regular subscriber and reader of Ananda Bazar Patrika and also a reader of the Sports World. On 6-5-93 at about 6.30 A.M. the complainant was shocked and surprised to find a nude photograph of Boris Becker along with a nude lady published on the second page of Ananda Bazar Patrika. It has been alleged in the petition of complaint that the complainant being an experienced Advocate and well aged person felt that the photographs of a renowned player like Boris Becker published on 6-5-93 at Ananda Bazar Patrika and Sports World, Volume 14, Issue 15 dated 5th May, 1993 have a great impact on the society as the same is very much against the customs and culture and the complain ant felt that for the benefit of the society such sorts of publication and photography should be banned and the petitioners deliberately and intentionally published those photographs which are obscene in nature within the meaning of Section 292 of I.P.C, and the said obscene photographs so published would have bad impact upon the teenagers.

(2.) The learned S. D. J. M., Alipore took cognizance of the offence on the complaint and after examination of the complainant upon oath found prima facie case under Section 202 of I.P.C. against both the petitioners arraigned as accused in the said case and issued summons against them on 10-5-93. Thereupon both the petitioners appeared before the learned S. D. J. M., Alipore and filed a petition under Section 205, Cr.P.C. praying for dispensing with their personal attendance. By the order dated 19-1-94 the learned S.D.J.M., Alipore allowed the said petition and subsequently transferred the case to the Court of the learned Judicial Magistrate, First Court, Alipore for disposal. Thereafter the petitioners filed an application before the learned Judicial Magistrate praying for dropping of the proceeding. It has been alleged inter alia in the said petition that the photograph in question was published in 'stern' which was the biggest news Magazine of Germany and circulation had been made in India with the knowledge, consent and approval of the customs department and also that of external affairs, Government of India and the photograph in question and the news had been collected from the said magazine and reproduced in the Sports World and since the authorities concerned did not raise any objection in this regard, the same could not be termed as obscene and the petitioners were entitled to get the benefit of Section 79 of I.P.C. It has been further averred by the petitioners in the said petition that circulation of the said foreign magazine containing the news item and the photographs in question is not banned in India and the same had already been exhibited for view to the general public and collection of the said photograph from the said magazine together with the news item and printing and publication of the same in this country cannot be challenged as obscene in any way. By his order dated 16-4-94 the learned Judicial Magistrate rejected the said petition whereupon being aggrieved the petitioners have preferred the present application under Section 482 of the Code of Criminal Procedure praying for quashing of the proceedings.

(3.) Mr. Joymalya Bagchi the learned Advocate for the petitioners has contended at the outset that along with the application for dropping of the proceeding the documents were submitted to show that Germany's Sports Magazine 'Sterm' dated 7th April, 1983 had not been banned in India and since the said magazine was not banned the petitioners were justified in law to reproduce the picture contained in the said magazine in their own publications and such justification in law is embodied as a general exception contained in Section 79 of I.P.C. He has drawn my attention to the copy of the letter dated 20th July, 1993 addressed by the Assistant Editor, Sports World to the Collector, Calcutta Customs and copy of the letter dated 4-10-93 sent by the Deputy Collector of Customs to the Assistant Editor, Sports World. Copies of both the letters have been kept on the lower Court records. It has been contended by Mr. Bagchi on behalf of the petitioners that Section 11 of the Customs Act inter alia empowers the Central Government to prohibit partially or absolutely import of any goods in India for the purpose of maintenance of public order and standards of decency or morality and the aforesaid document placed before the learned Magistrate being an official communication on behalf of a public authority clearly establishes the fact that importation of the said foreign Magazine 'Stern' containing the allegedly offending picture had not been prohibited in India. It has been further argued by Mr. Bagchi that the issue of justification of law emanates from absence of any legislative interdiction to the entry of the allegedly offending picture in India or to its being used in India and such absence of legislative interdiction is evident from the document which is a public document within the meaning of Section 74 of the Indian Evidence Act. As argued by Mr. Bagchi, the learned Magistrate ought to have taken into consideration the said public document communicating non-existence of legislative Interdiction in the matter and should have dropped the proceeding. He has drawn my attention to Section 79 of I.P.C. and submitted that since the petitioners were justified in law to publish the said photograph Section 292 of I.P.C. has got no manner of application in this case. He has cited Rajkapoor v. Laxman reported in AIR 1980 SC 605 : (1980 Cri LJ 436) in this regard.