A condom advertisement featuring a couple playing the traditional Gujarati dance form ‘Garba’ will not amount to obscenity, the Madhya Pradesh High Court recently said while quashing a First Information Report (FIR) lodged against a pharmacist for posting the advertisement on social media and WhatsApp [Mahendra Tripathi vs State of Madhya Pradesh].
Single-judge Justice Satyendra Kumar Singh arrived at the decision after examining the post in question, which stated – Pre Loveratri Weekend Offer – Condoms (pack of 3) or a Pregnancy Test Kit at INR 0 – featuring a couple playing Garba.
“Admittedly, the applicant is a pharmacy professional at Indore. Since there is nothing on record except the said post which indicates his such intention therefore, considering the fact that he himself belongs to the Hindu community, and so also the fact that he posted it from his own mobile number without concealing his identity, it appears that his intention was just to promote the product of his company and not to hurt the religious feelings and sentiments of any community,” the Court held in the order.
The Court also did not accept the argument that the advertisement was obscene.
“Upon perusal of the alleged post, it is apparent that the contents of the same are not obscene hence, ingredients of Section 67 of the Information Technology Act are also not fulfilled. In view of the above, allowing the prosecution to continue the case would amount to abuse of the process of Court, therefore, it is necessary to quash the proceedings,” the Court opined.
The single-judge was seized of a petition filed by one Mahendra Tripathi, who sought to quash the FIR lodged against him under Sections 505 (public mischief) and 295A (hurting religious sentiments) of the Indian Penal Code (IPC) along with the provisions of the Information Technology Act.
Tripathi had in October 2018, during the Navratri festival, posted an Ad of free condoms and pregnancy test kits for couples. He had used an image of a couple playing Garba and had posted the said Ad on WhatsApp groups and also on Facebook.
The complainant in this case, claimed that he is a Hindu and his religious sentiments were hurt by the said Ad.
In his defence, Tripathi argued that he himself is a Hindu and that he had no intention to promote any kind of enmity between religious groups or hurt religious sentiments. He claimed to have posted the said Ad only in good faith to lure the customers during Garba period as various condom companies themselves came up with promotional offers.
In its order, the Bench referred to the judgment of the Supreme Court in the case of Salman Khan, who was granted a similar relief for releasing his movie titled ‘Loveratri’ during Navarati festival.
The Bench, therefore, quashed the FIR and also the subsequent criminal proceedings arising out of the same.
Advocate RS Raghuvanshi appeared for the Applicant.
Government Advocate Mamta Shandilya represented the State.