'Can't Say 'XXX' Episode Isn't Obscene' : Madhya Pradesh High Court Refuses To Quash FIR Against Ekta Kapoor

"Section 67 of Information Technology Act is a cognizable offence and no condition such as disclaimer etc can prevent a person from lodging the FIR in respect of such offence."Stating that a prima facie case is made out, the Madhya Pradesh High Court(Indore Bench) on Wednesday refused to quash the FIR registered against Ekta Kapoor, Managing Director of ALT Balaji, in connection to alleged obscenity and dishonour to national emblem in the series titled 'XXX'. A Single Bench of Justice Shailendra Shukla observed that in order to determine as to whether a particular matter is obscene or not, recording of evidence may be an important exercise. "As far as the present case is concerned, it cannot be stated outrightly that the impugned episode is not obscene," it held. The Court was hearing an application under Section 482 of CrPC filed by Ekta Kapoor, seeking quashment of FIR filed against her for allegedly spreading obscenity, hurting religious feelings, and improper use of national emblems in her web show XXX season 2. Kapoor had moved the High Court stating that she did not have any knowledge of the contents of episode because she is not the producer or the director and her name is not reflected in the credits for the episode. Rejecting this argument, the High Court held that Kapoor being the Managing Director of the platform on which the show was released, she is "presumed to have knowledge" about the contents of the episode. Referring to Section 67 of Information Technology Act, 2000, the Court held, "In the aforesaid provision, there are no such words that the person who publishes or transmits or caused to be published or transmitted in the electronic form any lascivious material or such material which appeals to prurient interest was having or supposed to be having the knowledge about the content of the material. Thus, even if the content is not known and a person publishes or transmits or caused to do so even without knowledge, provisions of Section 67 of Information Technology Act, 2000, would be attracted. Presumption of knowledge on the part of petitioner shall have to be assumed and onus will be upon the petitioner to rebut such presumption by leading evidence." Reliance was placed on Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881. Kapoor had contended that the Internet is full of much more explicit forms of obscenity and therefore much ado ought not be made about the impugned material. Responding to this, the Court made significant remarks as follows: "The flooding of obscene material on Internet is primarily because the concerned authorities have not been able to device a mechanism to isolate and prevent such material and such failure ought not to be considered to be valid rationalization on the part of petitioner. Such submission is akin to an excuse by a person who spreads garbage in a residential colony on the ground that the aforesaid colony is already unhygienic and unclean." She also argued that if at all any case is made out against her, she cannot be prosecuted in isolation without impleading the company ALT Balaji as co-accused. Reliance was placed on Aneeta Hada v. Godfather Travels & Tours Pvt. Ltd., 2012(5) SCC 661, in which it has been laid down that the Director of Company cannot be held liable without impleading the Company. The Court however this submission is "premature" as the matter is still under investigation and the chargesheet has yet not been filed. It observed that this case is distinguishable from Aneeta Hada's case inasmuch as in this case, it was not in the hands of complainant to ensure that the Company is also named as an accused. It clarified, "The case of Aneeta Hada (supra) was a complaint case filed under Sections 138 and 141 of NI Act, 1881 and the responsibility was on the complainant to include the Company as an accused. Hence, the analogy of Aneeta Hada's case (supra) cannot be taken at this stage of investigation in the present case.." It further stated that the Complainant, in his FIR, had sought action against ALT Balaji as well and the company may be impleaded as an accused in the charge sheet. Kapoor had argued that the episode does not depict obscenity and the impugned scenes of physical intimacy are not graphic in nature but are simulated. The Court however held that it cannot be stated outrightly that material is not obscene in nature. It held, "At this stage it cannot be stated that provisions of Section 67 of IT Act are not attracted. Regarding Section 67-A of IT Act also, one has to decide as to what is the true meaning of sexually explicit acts i.e. whether a graphic depiction would only constitute "explicit Act" or whether a simulated act of copulation may also result in invoking this provision. In order to determine whether the matter is obscene or not objective assessment of the material is required. In order to do away...

'Can't Say 'XXX' Episode Isn't Obscene' : Madhya Pradesh High Court Refuses To Quash FIR Against Ekta Kapoor

Akshita Saxena

"There is always a thin line between what are acceptable limits of display of physical intimacy and obscenity", High Court said.

Tags