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1 R.MURALIDHARAN, ADVOCATE, LAW LECTURER, PATENT & TRADEMARK ATTORNEY KRISHNA & SAURASTRI ASSOCIATES, NO.17, SHESHADRI ROAD, BANGALORE Tele Fax: Mobile: Murali, NALSAR 1

2 MEDIA AND CRIMINAL LAW Murali, NALSAR 2

3 SEC.292:- A book or material shall be deemed to be obscene, if it is,- A) lascivious B) appeals to the prurient interest C) tends to deprave or corrupt persons who are likely to read, see or hear the material. Murali, NALSAR 3

4 Whoever, sells, lets to hire, distribute, imports, exports or takes part or receives profits from such business, or advertises obscene material shall be liable, on conviction for an imprisonment of two years and or fine of Rs.2,000/- and second subsequent conviction shall entail a punishment of five years imprisonment and fine of Rs.5,000/- or both. Murali, NALSAR 4

5 Defences:- A) The publication of which is proved for the public good (sex education) or in the interest of science, literature, art or learning. B) If it is used for bonafide religious purpose. C) Scriptures, engravings or paintings located in Ancient monuments or Archeological sites. D) Materials in temples, temple cars or kept of religious purpose. Murali, NALSAR 5

6 Procedure:- Cognizable, bailable, non compoundable and triable by any Magistrate. Murali, NALSAR 6

7 Ranjit D.Udeshi V State of Maharastra (AIR 1965 SC.P.881) The accused, in their book shop at Bombay, were found in possession of and in fact, sold D.H Lawrence, Lady Chatterley s lover, (unexpurgated edition) which contained obscene matter. The additional Chief Presidency Magistrate convicted all partners and fined them each Rs.20/- with one week imprisonment in default. Murali, NALSAR 7

8 Ranjit D.Udeshi V State of Maharastra (AIR 1965 SC.P.881)(contd) The Magistrate held that the offending book was obscene. The Accused approached Bombay High Court through a Revision Petition, which was dismissed. Thereafter, the Supreme Court was approached, by means of Special Leave Petition. Dismissing the SLP, the Supreme Court held as under:- Murali, NALSAR 8

9 Ranjit D.Udeshi V State of Maharastra (AIR 1965 SC.P.881)(contd) A) Even though Art:19 (1) (a) guarantees freedom of expression, existing laws like sec 292 IPC, imposing reasonable restriction in the interests of public decency and morality. B) Obscenity means something which is offensive to modesty or decency, lewd, filthy and repulsive. Murali, NALSAR 9

10 Ranjit D.Udeshi V State of Maharastra (AIR 1965 SC.P.881)(contd) C) Difference between obscenity and pornography: The later is intended to arouse sexual desire and the former do not intend to do so, but may have that tendency. Pornography is more aggravated form of obscenity. Murali, NALSAR 10

11 Ranjit D.Udeshi V State of Maharastra (AIR 1965 SC.P.881)(contd) D) Prosecution need not prove knowledge on the part of the accused. E) If the sale of obscene book is proved (Actus Rea), the prosecution and need not prove Mens Rea or intention by positive evidence. The law against obscenity imposes strict criminal responsibility. Murali, NALSAR 11

12 Ranjit D.Udeshi V State of Maharastra (AIR 1965 SC.P.881)(contd) F) The test of obscenity as laid down in Hicklin s case. Whether the matter is likely to deprave or corrupt those whose minds open to such immoral influences-if the material suggests to the minds of the young or old, thoughts of most impure and libidinous character It has to be decided on a case by case basis Murali, NALSAR 12

13 Ranjit D.Udeshi V State of Maharastra (AIR 1965 SC.P.881)(contd) G) It is not necessary to compare one book with another to find the extent of permissible action. Murali, NALSAR 13

14 Ranjit D.Udeshi V State of Maharastra (AIR 1965 SC.P.881)(contd) H) An overall view of the obscene matter must be taken. The obscene part of an otherwise good book, must be considered by itself. Factors like (a) interests of contemporary society (b) the influence of the book are crucial. Murali, NALSAR 14

15 Ranjit D.Udeshi V State of Maharastra (AIR 1965 SC.P.881)(contd) I) Where the obscenity and art are mixed, the art must be so dominant to throw the obscenity into shadow. Murali, NALSAR 15

16 Samresh Bose V Amal Mitra (1986 SC 267) Samresh Bose, a well known Bengali author, wrote a novel under the title Prajapathi, which was published in Sarodiya Desh an equally well known publication, read by people from all walks of life and different age groups. Amal Mitra, an young advocate found pages 174 to 226 of the novel offensive and obscene and hence filed a private complaint. Murali, NALSAR 16

17 Samresh Bose V Amal Mitra (1986 SC 267)(contd) The complainant examined himself and another K.Ghosh, a business man, who found the book obscene and said that he would not give this book to his children for reading. The accused examined two well known personalities (1) Mr.B Bose and (2) Dr.N Guha, both professors of literature and authors of decent reputation,who found that the book is not obscene. Murali, NALSAR 17

18 Samresh Bose V Amal Mitra (1986 SC 267)(contd) The trial judge convicted them and directed the author and publisher to pay a fine of Rs.201/- and in default a simple imprisonment of two months. As against this order, the accused filed Criminal Revision Petition, in Calcutta High Court, which was dismissed. Murali, NALSAR 18

19 Samresh Bose V Amal Mitra (1986 SC 267)(contd) The trial judge has also ordered that pages 176 to 226 of the book must be destroyed. The accused approached Supreme Court to exercise SLP jurisdiction. Allowing the appeal and quashing the conviction, the Supreme Court held as under:- Murali, NALSAR 19

20 Samresh Bose V Amal Mitra (1986 SC 267)(contd) A) While deciding the question of obscenity the Judges should place themselves in the position of the author, and try to understand, what the author seeks to convey. Thereafter, the Judge should place himself in the position of a reader of every age group. Murali, NALSAR 20

21 Samresh Bose V Amal Mitra (1986 SC 267)(contd) B) Whether something is obscene or not is essentially matter for judicial determination, but expert s testimony, can be taken into consideration while deciding this question. Murali, NALSAR 21

22 Samresh Bose V Amal Mitra (1986 SC 267)(contd) C) A novel cannot be considered obscene, merely because it employs slang or unconventional expressions or there is emphasis on sex or description of female bodies, narration of feelings, thoughts and actions in vulgar language. Murali, NALSAR 22

23 Samresh Bose V Amal Mitra (1986 SC 267)(contd) D) A writing which is in bad taste does not make it depraving or lascivious. E) If writings on sex, can be considered as obscene and not fit to be read by teenagers, then people can only read books which are purely religious. Murali, NALSAR 23

24 Samresh Bose V Amal Mitra (1986 SC 267)(contd) F) A vulgar writing is not necessarily obscene. Vulgarity arouses the feeling of disgust, revulsion and boredom but does not deprave debase or corrupt the morals of any reader. Obscenity does that and influences the readers to immorality. Murali, NALSAR 24

25 Ral Kapur V Laxman (AIR 1980 SC p.605) The movie Satyam Sivam Sundaram(A) and the famous waterfalls scene, wherein actress Mandhakini was attired in thin white cloth, became a matter for prosecution under sec 292 IPC. The complainant contended that the title is misleading., foul and beguiled the guileless into degeneracy. Murali, NALSAR 25

26 Ral Kapur V Laxman (AIR 1980 SC p.605)(contd) The Magistrate after examining some witnesses took cognizance of the complaint. The producer approached High Court under sec 482 of CRPC for quashing the complaint. The High Court dismissed the petition notwithstanding the fact that Board of Film Censor, had granted A certificate. The Supreme Court reversed the High Court order and quashed the complaint in view of sec 5 (a) of Cinematographic Act and sec 79 of IPC. Murali, NALSAR 26

27 Sec.293 Sec 293 of IPC, makes sale of obscene materials to young persons as aggravated act of obscenity, and the punishment is seven years and fine of Rs.5,000/-. Murali, NALSAR 27

28 Offences relating to religion:- Sec.295:- Deliberate malicious acts intended to outrage religious feelings or insulting religion or religious beliefs. Punishment three years/fine or both. Sanction under sec 196 CRPC by District Magistrate is necessary. (Ramjilal Modi V State of U.P (SCR-1957 p-860). Murali, NALSAR 28

29 Sec 296:- Disturbing religious assembly-one year/fine or both. Cognizable, bailable, non compoundable-triable by any Magistrate. Murali, NALSAR 29

30 Sec 297:- Trespassing on burial with intent to insult the religion of other on one year SI/fine or both. Murali, NALSAR 30

31 Sec 298:- Uttering words with deliberate intent to would religious feelings. One year imprisonment/fine/or both. Non cognizable, bailable, non-compoundable. Mere wounding of religious feelings is not punishable, unless it is done with deliberate intention. This means premeditation with the sole object to wound religious feelings. Murali, NALSAR 31

32 DEFAMATION:- Defamation is a crime as well as a tort. In civil law, there is a distinction between libel, slander and inneundo. In Criminal Law, there is no such distinction. All are punishable in the same way. Murali, NALSAR 32

33 DEFAMATION:- (contd) Defamation is a non-cognizable, bailable, compoundable offence carrying a maximum imprisonment of two years. The gist of the offence is when words (either spoken or written) or representation, which is published and harms the reputation of another person, then it is punishable, unless it is coming under the scope of the six exceptions narrated under this section. Murali, NALSAR 33

34 DEFAMATION:- (contd) 1) Normally, in Civil Law there cannot be a defamation of dead person. However, under Criminal Law, there can be a prosecution even for defamation of a dead person, if it hurts the feelings of the deceased family. 2) There can be defamation concerning even an artificial person like a company or a society. Murali, NALSAR 34

35 DEFAMATION:- (contd) 3) Sly remarks, even if they are indirect can result in defamation. 4) There will be no defamation unless the imputation, lowers the reputation of the affected person in the eye of right thinking people. Murali, NALSAR 35

36 ILLUSTRATIONS:- (a) A is asked who stole B s watch? A points out to Z in order to make people believe that Z stole the watch. This is defamation unless it can be brought in one of the exceptions. Murali, NALSAR 36

37 ILLUSTRATIONS:- (contd) (b) A draws a picture of Z running away with B s watch, in order to make people believe that Z stole B s watch. This is defamation unless it can be brought under the exception. Murali, NALSAR 37

38 DEFENCES:- 1) Imputation of truth, which is necessary in the interest of public good, to be published. 2) An expression of good faith regarding the public conduct of public servants. Murali, NALSAR 38

39 DEFENCES:- (contd) 3) A comment regarding the conduct of any person touching any public question. 4) Publication of reports of proceedings of court. Murali, NALSAR 39

40 DEFENCES:- (contd) 5) An opinion on the merits of a case decided by the court or regarding the conduct of witnesses and others concerned. 6) A review of the merits of a public performance. Murali, NALSAR 40

41 DEFENCES:- (contd) 7) Censure passed in good faith by a person having lawful authority over another. 8) Accusation preferred in good faith to authorized person. Murali, NALSAR 41

42 DEFENCES:- (contd) 9) Imputation made in good faith for the protection of his or other s interest. 10) Caution intended for good of a person to whom conveyed or public interest. Murali, NALSAR 42

43 Thank You for a patient hearing. Murali, NALSAR 43

The Protection of Children from Sexual Offences Act, 2012 (POCSO, 2012)

The Protection of Children from Sexual Offences Act, 2012 (POCSO, 2012) Need for POCSO Act, 2012: Existing laws (IPC, IT Act, 2000 and JJ Act, 2000) not enough to address sexual offences No specific provisions