Case Note & Summary
The petitioner, Chintan Upadhyay, filed a criminal writ petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, challenging an order dated 8 January 2013 passed by the learned Additional Chief Metropolitan Magistrate, 21st Court, Bandra, Mumbai, issuing process against him in C.C.No.3493/SS/2012. The respondent No.1, Hema Upadhyay, the complainant and estranged wife of the petitioner, had filed a complaint alleging offences under Section 4 read with Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 and Section 292(2)(a) of the Indian Penal Code. The parties were married on 31 October 1998 and were co-owners of a flat at Mittal Ocean View, Juhu Tara Road, Mumbai, where they resided separately within the same premises. The petitioner had filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The complaint alleged that on 20 July 2012, the petitioner had placed a painting in the common hall of the flat, which the complainant claimed was indecent and obscene. The complainant stated that the painting depicted a nude woman and was kept in a manner that could be seen by her and the servants. The magistrate issued process based on these allegations. The petitioner contended that the painting was his personal property, kept in his private room, and there was no publication or distribution as required under the Act. The court examined the complaint and found that the allegations did not disclose any act of publication, distribution, or public exhibition. The painting was allegedly kept in a private residence, and there was no evidence that it was sold, distributed, or exhibited in a public place. The court held that the essential ingredients of the offences under the Indecent Representation of Women (Prohibition) Act, 1986 and Section 292(2)(a) IPC were not made out. Consequently, the court quashed the order issuing process and the criminal proceedings, allowing the petition.
Headnote
A) Criminal Law - Indecent Representation of Women - Section 4 read with Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 - Offence of indecent representation requires publication or distribution - Mere possession of a painting in a private residence without any element of publication, distribution, or public exhibition does not constitute an offence under the Act - Held that the complaint fails to disclose any act of publication or distribution, and therefore the process issued is liable to be quashed (Paras 10-14). B) Criminal Law - Obscenity - Section 292(2)(a) of the Indian Penal Code - Offence of obscenity requires sale, distribution, public exhibition, or possession for such purposes - Allegation of painting kept in a private room without any evidence of sale, distribution, or public exhibition does not attract Section 292(2)(a) IPC - Held that the essential ingredients of the offence are not made out (Paras 10-14). C) Criminal Procedure - Quashing of Process - Section 482 of the Code of Criminal Procedure, 1973 - Inherent powers to prevent abuse of process - Where the allegations in the complaint, even if taken at face value, do not constitute any offence, the High Court can quash the criminal proceedings to secure the ends of justice - Held that the order issuing process is quashed and set aside (Paras 1-2, 15).
Issue of Consideration
Whether the allegations in the complaint make out an offence under Section 4 read with Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 and Section 292(2)(a) of the Indian Penal Code, warranting issuance of process against the petitioner.
Final Decision
The petition is allowed. The order dated 8 January 2013 issuing process in C.C.No.3493/SS/2012 passed by the learned Additional Chief Metropolitan Magistrate, 21st Court, Bandra, Mumbai is quashed and set aside. The criminal proceedings are also quashed.
Law Points
- Indecent Representation of Women (Prohibition) Act
- 1986
- Section 4
- Section 6
- Indian Penal Code
- Section 292(2)(a)
- Obscenity
- Private possession
- Publication
- Distribution
- Public exhibition
- Criminal process
- Quashing
- Inherent powers
- Section 482 CrPC
- Article 227 Constitution
