Canacona: The JMFC Canacona has said all nudity is not obscene and merely because public sentiments are hurt a person cannot be put in police custody.
While granting bail to actress Poonam Pandey and husband Sam Bombay, the JMFC, Canacona Goa found that the offences under Section 292, 293 and 294 of I.P.C. and section 4 r/w section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 are bailable in nature.
“The only non-bailable offence in the present crime is section 67 of the Information Technology Act. It has to be noted that the accused is a professional film maker in the industry of Hindi films. As to whether his actions have hurt public sentiments cannot be a ground for not granting bail,” the court said.
The court said a professional shoot towards the making of a video or a film, cannot be outright termed as obscene or immoral merely because some members of the public say so or there is public outcry about the same.
“Films and videos are covered under the right to expression which is a fundamental right granted by our Constitution. As to whether, for conducting such a shoot, appropriate permissions have been taken or not and more importantly whether the site at which the same have been filmed is a restricted area or not is a matter of documentary record and nothing whatsoever the accused says in that regard would change the facts,” the court said.
Therefore, the court said, custodial interrogation cannot be of any help insofar as the alleged crime is concerned.
“Same can be taken care of by imposing reporting conditions on the applicant. When it comes to fundamental rights of an individual, which are sacrosanct, especially the right to free speech and expression, which constitutes an essential foundation of a democracy and without which life itself would be meaningless, acting in a video or film, which may be perceived by some as obscene and yet some others may perceive it as artistic, cannot be a ground to jail a person, especially where the acts complained of have been documented on film,” the court said.
“It is important to note that when such representation is in pursuance of art, it is an exception. Making of films obviously is an artistic endeavour and even if it was otherwise, determination of the same would be a matter of trial. One cannot, given the facts and circumstances, come to a conclusion that all nudity is obscene,” the court says.
Therefore, the court said, merely because public sentiments are hurt the applicant cannot be put in police custody.
“There is also no reference as to from where Samrat Bhagat procured the video clip and got the same developed before submitting the same before the police.There are also no statements as to on which website the clip was published and circulated by the applicants. Thus, in view of the above discussion in my considered opinion, no ends will be served by keeping the accused in police custody and rejecting the bail application,” the court said.
The Court said that the police have also not justified as to why the accused/applicant was arrested before 6.11.2020 the period given to appear in notice under Section 41-A of Cr.P.C.
“There is no documentary proof to show that accused/applicant was in process of absconding. The Courts owe more verbal respect to the principle that punishment begins after conviction, and that
every man is deemed to be innocent until duly tried and found guilty.” the court said.