CANACONA
Maintaining that acting in a video or film may be perceived by some as obscene and others as artistic, the Canacona JMFC stated that all nudity is not obscene and a person cannot be put in police custody merely because public sentiments are hurt.
JMFC Canacona was making his observations while granting bail to actress Poonam Pandey and husband Sam Bombay, in connection with a porn video filmed at the Chapoli Dam, which triggered public outrage and as many as six police complaints.
According to the bail order, the Canacona JMFC said offences under Sections 292, 293 and 294 of IPC and Section 4 r/w Section 6 of the Indecent Representation of Women (Prohibition) Act, are bailable in nature.
“The only non-bailable offence in the present crime is of the Information Technology Act. It has to be noted that the accused is a professional filmmaker 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 also observed that 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, 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.
The court added that “...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.”
“It is important to note that when such representation is in pursuance of art, it is an exception. Making of films 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, conclude that all nudity is obscene.”
The court claimed that merely because public sentiments are hurt, the applicant cannot be put in police custody.
The court said there was also no reference from where Samrat Bhagat procured the video clip and got the same developed, before submitting it to the police.
“There are also no statements as to which website the clip was published and circulated by the applicants. Thus, no ends will be served by keeping the accused in police custody and rejecting the bail application,” the court said.
The JMFC also said the police had not justified as to why the accused/applicant was arrested before November 6, the period given to appear in the notice under Section 41-A of CrPC.
“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.
The court felt that custodial interrogation cannot be of any help in so far as the alleged crime is concerned. “Same can be taken care of by imposing reporting conditions on the applicant.
The Canacona JMFC released actress Poonam Pandey and Sam Bombay on conditional bail of Rs 20,000 each while directing them to report to Canacona police for six days and not to leave Goa without seeking prior permission of the court.
