APOORVA ARORA V. STATE [GOVT. OF NCT OF DELHI]

CITATION: 2024 SCC ONLINE SC 325; 2024 INSC 223

DATE OF JUDGEMENT: 19/March/2024

COURT: SUPREME COURT 

JURISDICTION: CRIMINAL APPELLATE JURISDICTION

APPELLANT: APOORVA ARORA AND ANR.

RESPONDENT: STATE [ GOVT. OF NCT OF DELHI]

BENCH: DIVISIONAL BENCH [JUSTICE A.S. BOPANNA & JUSTICE P.S. NARASIMHA]

INTRODUCTION

In the Apoorva Arora v. State [Govt. of NCT of Delhi], the appeal was filed before the Hon’ble Supreme Court under the Criminal Appellate Jurisdiction. The appeal was filed against the order of the High Court in which the High Court directed to register an FIR against the appellant under section 67 and 67A of the IT Act and rejecting the petition of quashing an FIR under Section 482 of the CrPC,1973. The case is against the creator, actor, casting director, script writer and the media company which hosted the web-series named “College Romance” where it was alleged that the web-series contains ‘sexually explicit content’ which violates the provision under IT Act,2000. The Hon’ble Supreme Court in its judgement set aside the High Court judgement and rely upon various precedents, interpret the penal provision and clarify that the web-series especially Episode 5 Season 1 titled “Happily F****d up” does not contain any material which deemed to be considered as obscene and which violates the penal provisions. Hence, quash the criminal proceedings emanating against the appellants/accused. 

LAW INVOLVED: The Information Technology Act, 2000

Section 67: Punishment for publishing or transmitting obscene material in electronic form

Section 67A: Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.

FACTUAL BACKGROUND

1.Complaint before Assistant Commissioner of Police and report by Investigating Officer.

A complaint was filed against the appellant/accused before the Assistant Commissioner of Police under Section 292, 294 and 509 of the Indian Penal Code, 1860, Section 67 and 67-A of the Information Technology act, 2000 and Sections 2(c) and 3 of the Indecent Representation of Women (Prohibition) 1986. Stated that the web-series named “College Romance” Episode 5 Season 1 titled “happily f****d up” contain vulgar and obscene language which constitute an offence under the said Acts. The Investigating Officer denied the obscenity in the alleged content and stated that no cognisable offence is committed.

2. Case before the ACMM

The Additional Chief Metropolitan Magistrate directed registration of an F.I.R under Section 292 and Section 294 of IPC,1860 and Section 67 and 67-A of IT,2000 and stated that “vulgar language used is prima facie capable of appealing to prurient interests of the audience and is hence obscene”. 

3. Revision Petition: In Additional Session Judge

The Revision Petition was filed by the appellants before Additional Session Judge who modify the order and directed to register F.I.R only under Section 67 and 67A of IT, 2000. 

4. Petition under Section 482 of CrPC,1973 and the High Court order 

The Petition was filed by the appellants under Section 482 of CrPC (The Inherent Power of the High Court), to quash the FIR or Criminal proceedings emanating against the appellants. The High Court dismissed the petition and directed to registered an FIR under section 67 and 67-A of IT Act against the appellants.

5. Appeal before Hon’ble Supreme Court 

The present appeal was filed before Hon’ble Supreme Court under the Criminal Appellate Jurisdiction by the appellants to challenge the order of the High Court.

ISSUE FRAMED BEFORE SUPREME COURT

Whether the expletives and profanity in the web-series “College Romance” violates the Section 67 and 67A of the IT Act,2000?

Whether the content is ‘obscene’?  

Whether the High Court is correct to not quash the FIR under Section 482 of the CrPC,1973?

REASONING BEHIND SUPREME COURT ORDER

Reading the Section 67 of the IT Act and the Section 292 of the IPC, the Court finds that the “obscenity” defined in both provisions contained the similar ingredients such as-

• the content/material which is lascivious; or
• appeals to the prurient interests; or 
• -the material/content tends to deprave and corrupt persons who are likely read, see or hear the content, having regards to all relevant circumstances. 

Further Court stated that the only difference between abovesaid provision is to that the Section 67 is a special provision. But the issue under consideration is related to the obscenity of the material/content of the web-series. The same test which laid down under Section 292 of IPC will apply in current situation because both provisions cover the similar wording.

The Court referred the “Ranjit D. Udeshi v. State of Maharashtra, 1964” in which it upheld the constitutional validity of Section 292 as the reasonable restriction on free speech and applied the Hicklin test to determine the obscenity. As per the test, the content/material is obscene if it depraves and corrupts the minds of the persons who see, hear and read. The court further stated that the sex and nudity in art and the literature can not be regarded as obscene. Sex, nudity is offensive to public decency and morality, and the likeliness to pander to lascivious, prurient, sexually precocious minds, and appeal to or have the tendency to appeal to the “carnal side of human nature” for it obscenity.

The relied upon “Ramesh v. Union of India,1988”, where the court held that the impact of the words should be assessed from the viewpoint of a reasonable, strong-minded individual, not a hypersensitive or indecisive one.

In “Ajay Goswami v. Union of India,2007”, certain principles are cited by the court to determines the obscenity such as-

• to check the contemporary mores and the national standards.
• to deprave and corrupt the reader or viewer.
• The content which covers sex and nudity is not deemed to be always considered as obscene.
• the effect of the work must be judged as per an “ordinary man of common sense and prudence”.
•  the court must balance between what is artistic and what is obscene. 

The High Court made an error while framing the issue under consideration which leads to wrong decision. The offence under section 67 IT Act and section 292 IPC are not about whether the language or words are decent or not but it all about whether the content is lascivious, appeals to prurient interest or to deprave and corrupt the minds of viewers or readers.

The second error made by the High Court is that it equated profanity and vulgarity with obscenity. The obscenity which arousal of the sexual and the lustful thoughts on the other hand of profanity and vulgarity is about the abusive language which is uncivil, distasteful, improper is not amount to obscenity.

Thirdly, the High Court made an error to determine whether the content is obscene or not. Interpreted the provision in literal sense which is sexual in nature but it does not arouse sexual thought in any viewer of ordinary prudence and common sense. 

Lastly, the High Court incorrectly used the standard of “impressionable minds”.

The offence of Section 67A is not attracted because the content covers excessive usage of vulgar expletives, swear words, and profanities and not any ‘sexually explicit act or conduct’. 

The complainant is not charged with any offence under Section 67 and Section 67A of the IT Act hence the court while exercising its jurisdiction quash an FIR or Criminal complaint.

DECISION OF SUPREME COURT

In the above given reasons, the Supreme Court allowed the appeals against the judgement of the High Court and set aside the judgement of the High Court as well as quash the FIR registered under Section 67 and Section 67A of IT Act,2000. All the pending applications, if any, shall stand disposed of.

ANALYSIS

Quashing of Criminal Proceedings under Section 67 and 67A of IT Act, 2000 the Hon’ble Supreme Court stated that there are certain ingredients are required to fall a case within the preview of the abovesaid provision. Such as- content/material must be lascivious; or appeals to the prurient interests; or the material/content tends to deprave and corrupt persons who are likely to read, see or hear the content, having regards to all relevant circumstances. Relying upon the facts and circumstances of this case it is clear that the vulgarity and profanity does not mean an obscenity. The High Court is in error to interpret the provisions properly and not to quash the criminal proceedings. The Hon’ble Supreme court while considering all circumstances quashed the proceedings and set aside the High Court order.

CONCLUSION

Section 67 and Section 67A of the IT Act,2000 is attracted when there is a publishing or transmitting of material containing sexually explicit act, conduct and obscenity etc., in electronic form. In this case the web-series used vulgar language and profanity which is not on the same footing as the obscenity under the provision. The penal provisions are not attracted here because it did not cause arousal of any sexual thoughts and feelings. The court relied upon the community standard test which stated that the obscenity can be determined by checking the effect of the content by the ordinary prudent and common sense. Hence quash the criminal case against the appellants/accused. 

REFERENCES

1.https://main.sci.gov.in 

2.https://www.scconline.com/blog/post/2024/03/19/college-romance-web-series-supreme-court-quashes-obscenity-case-against-tvf/

This Article is written by Sweety student of law center-1, Delhi University; Intern at Legal Vidhiya.

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