The Supreme Court has quashed a criminal case filed against the makers and actors of the web series, College Romance, for obscene content. Setting aside an order of the Delhi High Court to file an FIR against The Viral Fever (TVF), the SC said that no violation of Sections 67 (publishing or transmitting, in the electronic form, any material which is lascivious) and 67A (punishment for publishing material containing sexually explicit act in electronic form) of the Information Technology Act (IT) has been made.

The SC said that it is settled that a court must exercise its jurisdiction to quash an FIR or criminal complaint when the allegations made therein, taken prima facie, do not disclose the commission of any offence.

Senior lawyers Harish Salve, Mukul Rohatgi along with Ameet Naik appeared for the creators and actors of the show. Speaking to us, Ameet Naik said, "This is a landmark judgment of the Supreme Court overruling a judgement of the Delhi High Court, holding that vulgarity and profanity cannot be equated with obscenity and dismissing the FIR filed against the makers of the show College Romance, its actors and writers under Section 67 / 67A of the IT Act, 2000. This decision is a breath of fresh air for content creators as it upholds fundamental right to freedom of speech and expression and holds that the applicability of obscenity under section 67 and 67A of the IT act for vulgarity and profanity has to be viewed in the context and not in isolation."

The Supreme Court said that the Delhi High Court has taken the meaning of the language in its literal sense, outside the context in which such expletives have been spoken. The SC bench said, "While the literal meaning of the terms used may be sexual in nature and they refer to sexual acts, their usage does not arouse sexual feelings or lust in any viewer of ordinary prudence and common sense. Rather, the common usage of these words is reflective of emotions of anger, rage, frustration, grief, or perhaps excitement. Similarly, the metric to assess obscenity and legality of any content cannot be that it must be appropriate to play in the courtroom while maintaining the court's decorum and integrity. Such an approach unduly curtails the freedom of expression that can be exercised and compels the maker of the content to meet the requirements of judicial propriety, formality, and official language. Here again, the High Court committed a serious error in decision-making."

The SC observed, "When we notice the use of such language in the context of the plot and theme of the web series, which is a light-hearted show on the college lives of young students, it is clear that the use of these terms is not related to sex and does not have any sexual connotation. Neither did the creator of the web series intend for the language to be taken in its literal sense nor is that the impact on a reasonable viewer who will watch the material. Therefore, there is a clear error in the legal approach adopted by the High Court in analyzing and examining the material to determine obscenity."

Mumbai: Senior counsel Mukul Rohatgi sought to distance his client Aryan Khan, son of actor Shah Rukh Khan, from the “unsavoury controversy” involving the Narcotics Control Bureau (NCB), its witnesses and politicians following his arrest and chose not to cast any motives on investigators. “Khan is not making any allegations against any individual or director in the NCB,’’ he said.

The NCB had said a witness Prabhakar Sail's affidavit makes a “clear case” of alleged tampering by a manager of Khan to derail its probe and that bail should be denied for that reason alone. Rohtagi said he did not want to be sullied by this dispute. But he questioned the change in the stance of NCB, which had attributed the controversy to the personal vendetta of a politician and “now they are trying to rub it off on me by saying there is a manager Pooja.”

Rohtagi said the NCB case against him on WhatsApp chats cannot be considered at the stage of a bail application, adding that the chats were at least a year old and do not pertain to the cruise. The NCB has put much emphasis on the nature of the chats to establish Khan’s role in the alleged conspiracy. It is a case of a 23-year-old, back last year from the US where he was studying, said Rohatgi. “With no possession or consumption, why has this boy been sent to 20 days in jail?”

“I don't want to prejudice the case of A-2 (Arbaaz Merchant, Khan’s friend). He has, I believe, denied possession, but since nothing was found on me (Aryan Khan), you cannot take the case any further,” said Rohatgi. “This is not a case of any masterservant relationship that Khan has asked anyone to bring anything. I have no control over what is found in Arbaaz's shoe. Even if possession is assumed, it was 6 gm and maximum punishment is up to a year,” said Rohatgi who was assisted by Satish Maneshinde.

There is no evidence of any “conspiracy” as alleged by NCB, to connect Khan with illicit trafficking or financing under section 27A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, which is not even what he has been booked for or charged with, said the senior counsel who flew down from London Monday.

“The charge of conspiracy is to indirectly bring in section 27A of NDPS Act for illicit trafficking, that is what I gather though Aryan had not been charged with 27A,” said Rohatgi.

He also pleaded for a compassionate attitude towards young drug users and for the law to treat them as victims rather than offenders. “In any case there is no material to show that (Aryan Khan) had any truck or meeting of mind with anyone else,” he said. “These are young people. The approach is to not put them in jail. The Act provides for immunity from prosecution if a person is a consumer,” said Rohatgi. “My case is that section 37 (a fetter on bail, requiring court to hold there is no prima facie case against accused to grant bail) doesn't apply because Section 27A (financing) doesn't apply,” said Rohatgi.

The NCB which arrested Khan, Arbaaz and Munmun along with five others following the raid at the international cruise terminal had claimed to have found 5gm of contraband from the floor of Munmun’s cabin on the ship which was to set sail for Goa.

NCB had said all the accused were connected in “conspiracy”. It seized Khan’s mobile phone and opposed his bail citing chats with a “foreign national” to argue that it needed to be investigated. Rohatgi said, “There is no evidence. There may be some lady in London or somewhere and there are chats and the NCB is trying to link these to this case, without evidence.”

He referred to a chart to show recoveries and arrest and said at best Khan can be connected to Merchant and another accused (Aachit Kumar). “But Aachit was not on the cruise. He was arrested on October 6, from his house.”

When Justice Sambre asked about the chart, senior counsel Amit Desai appearing as lead counsel for Merchant along with advocate Taraq Sayed, said Kumar was “also a young, 22-year-old, from friend circle. Alleged chats were about online poker” adding “as you know online gaming has risen.”

Rohatgi cited a series of judgments for bail and said Khan’s case was better than all these. Arguments will continue on Wednesday.

Dhananjay Mahapatra (THE TIMES OF INDIA; August 6, 2020)

New Delhi: A Supreme Court bench has granted three days to Sushant Singh Rajput’s father, Bihar government, Maharashtra government and Mumbai Police to place on record their stand on Rhea Chakraborty’s petition seeking transfer of the FIR lodged by Rajput’s father against her in Patna to Mumbai. It will hear the case again next week.

Before the Bihar government and Rajput’s father K K Singh sparred with the Maharashtra government over who should probe the actor’s death, solicitor general Tushar Mehta informed the apex court that the Centre had accepted Bihar government’s proposal for a CBI probe and that a notification would be issued shortly.

Mehta said the in-principle decision to accept the recommendation was taken in view of demands for a CBI probe by Rajput’s girlfriend Rhea Chakraborty, his father and the Bihar government. Chakraborty, who had tweeted to home minister Amit Shah demanding a CBI probe later moved SC seeking transfer of the FIR to Mumbai. Meanwhile, Rhea Chakraborty’s lawyer Satish Maneshinde said she was in Mumbai, asking people to refrain from speculating about her whereabouts.

Counsel for Rajput’s father, senior advocate Vikas Singh, said, “There is clear evidence of Rajput being beaten up mercilessly and strangled to death prior to stage-managing of the suicide. There must be a CBI probe as the Bihar police is being obstructed by Mumbai police from investigating the case.”

For Maharashtra government, senior advocate R Basant asked, “Is there any cause of action for registration of FIR in Patna? Look at the consequences. It affects federalism. Rajput’s father has not said or given anything in writing to Mumbai police till date. Now, the case is being driven by politics. If at all Bihar police registered an FIR, it should have been transferred to Mumbai. Bihar cannot recommend CBI probe into a case over which it has no jurisdiction.”

Appearing for the Bihar government, senior advocate Mukul Rohatgi and the state’s standing counsel Keshav Mohan said, “It is strange Maharashtra is talking of federalism. They quarantined a senior Bihar police officer when he reached Mumbai for investigation. As the CBI has taken over the probe, this petition (by Chakraborty) has become infructuous.”

Justice Hrishikesh Roy said Maharashtra police has to satisfy the court it has done a professional job, but disapproved of the quarantining of a Bihar IPS officer. “The case has hogged so much media time. Quarantining a Bihar police officer does not send a good signal. When so many eyes are focussed on the case, are you sending the correct signal? Whatever the nature of the case Mumbai police has registered, you give details and ensure that it is done in a professional way,” he said.