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2015 (5) TMI 1137 - SC - Indian LawsReference to a historically respected personality - Poem titled “Gandhi Mala Bhetala” (‘I met Gandhi’) in the magazine named the ‘Bulletin’ which was published, in July-August, 1994 issue, meant for private circulation amongst the members of All India Bank Association Union, could in the ultimate eventuate give rise to framing of charge under Section 292 IPC against the author, the publisher and the printer - whether in a write-up or a poem, keeping in view the concept and conception of poetic license and the liberty of perception and expression, use the name of a historically respected personality by way of allusion or symbol is permissible - Concept of obscenity Held that:- When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using obscene words, the concept of “degree” comes in. To elaborate, the “contemporary community standards test” becomes applicable with more vigour, in a greater degree and in an accentuated manner. What can otherwise pass of the contemporary community standards test for use of the same language, it would not be so, if the name of Mahatma Gandhi is used as a symbol or allusion or surrealistic voice to put words or to show him doing such acts which are obscene. While so concluding, we leave it to the poet to put his defense at the trial explaining the manner he has used the words and in what context. We only opine that view of the High Court pertaining to the framing of charge under Section 292 IPC cannot be flawed. Coming to the case put forth by the appellant-publisher, it is noticeable that he had published the poem in question, which had already been recited during the Akhil Bhartiya Sahithya Sammelan at Amba Jogai in 1980, and was earlier published on 2.10.1986 by others. The appellant has published the poem only in 1994. But immediately after coming to know about the reactions of certain employees, he tendered unconditional apology in the next issue of the ‘Bulletin’. Once he has tendered the unconditional apology even before the inception of the proceedings and almost more than two decades have passed, we are inclined to quash the charge framed against him as well as the printer. We are disposed to quash the charge against the printer, as it is submitted that he had printed as desired by the publisher. Hence, they stand discharged. However, we repeat at the cost of repetition that we have not expressed any opinion as to the act on the part of the author of the poem, who is co-accused in the case, and facing trial before the Magistrate in respect of the offence punishable under Section 292 IPC. It shall be open for him to raise all the pleas in defence, as available to him under the law. At this juncture, we are obliged to mention that Mr. Nariman, learned friend of the Court also in course of hearing, had submitted that the appellant having offered unconditional apology immediately and regard being had to the passage of time, he along with the printer should be discharged.
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