Condom Ad Featuring Couple Playing Garba| MP High Court Quashes Case Against Pharma Firm Head For 'Hurting Sentiments'

The Madhya Pradesh High Court recently quashed criminal proceedings initiated against the head of a pharma firm for publishing a condom advertisement featuring a couple playing Garba and thereby allegedly hurting religious sentiments.

Having perused the content of the advertisement, the bench of Justice Satyendra Kumar Singh observed that the intention of the accused was just to promote the product of his company and not to hurt the religious feelings and sentiments of any community.

Consequently, the Could held that offence under Section 295-A, 505 IPC and 67 IT Act are not made out, and hence, the Court quashed the FIR, Chargesheet, and also subsequent criminal proceedings pending against him before the Court of Judicial Magistrate First Class, Indore.

The case in brief

The owner (Mahendra Tripathi) of a pharma company named Morphus Pharmaceuticals Pvt. Ltd. ran a promotional offer for free condoms and pregnancy kits for two days during Navratri in 2018 and posted the image of the advertisement on Whatsapp groups and the Facebook page stating "Pre Loveratri Weekend Offer - Condoms (pack of 3)/Pregnancy Test Kit at INR 0".

The idea behind running such a campaign was to inform people that the company is coming up with an offer providing free of cost condom pack and pregnancy kit from 06.10.2018 to 07.10.2018. In the background of the said image, a couple playing Garba was also shown in the background.

Now, complainant Ajay made a written complaint to the SHO stating that the advertisement published by the applicant hurt the religious sentiments of the people, and thereafter, an FIR was lodged against the applicant. 

The prosecution sanction was obtained and after completion of the investigation, charge-sheet was filed against the applicant before the Court of JMFC, Indore. Hence, the applicant moved the High Court with the instant petition under Section 482 Cr.P.C. hfor quashment of FIR, consequent charge-sheet, and also subsequent criminal proceedings.

Before the Court, the applicant's counsel submitted that since the applicant is running his pharmacy business, he published the ad in good faith offering to lure the customers during the Garba period as various condom companies themselves came up with promotional offers.

Opposing his plea, the state's counsel argued that the content of the image posted by the applicant had hurt the religious feelings of the Hindu community and that such type of offer during the Navratri period itself shows the criminal intention of the applicant, thus, no relief should be granted to him.

Court's observations

Having persued the content of the ad as well as the allegations against him, the Court observed thus:

"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 the said image 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."

Further, the Court also observed that the essential ingredients of Section 295-A of IPC i.e. "..... deliberate and malicious intention of outraging the religious feelings ...... or ..... insulting the religion or religious beliefs of a class ....." and essential ingredients of Section 505 of IPC i.e. ".... with intent to incite .... any class or community of a person to commit any offence ..... or community" were not fulfilled in the instant case and hence, the Court held that it was apparent that the aforesaid offence cannot be said to be made out against the applicant

Consequently, noting that the prosecution to continue the case would amount to an abuse of the process of Court, the Court quashed the entire criminal proceedings against the applicant was quashed.

Case title - Mahendra Tripathi vs. State of Madhya Pradesh [MISC. CRIMINAL CASE No. 40839 of 2021]

Case Citation: 2022 LiveLaw (MP) 296

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