Supreme Court Grants Interim Protection From Arrest To Ekta Kapoor On FIR Against Her Over Alleged Objectionable Content In Web-series XXX Season 2

Supreme Court on Thursday granted protection fro arrest to film/TV producer Ekta Kapoor In relation to an FIR registered by Anapurna Police regarding the transmission of an episode in web series (XXX Uncensored) on Zee 5 which is being promoted by ALT Balaji, a concern owned by her and her mother.

The Bench headed by Chief Justice SA Bobde was hearing a petition filed by Kapoor against the order passed by Madhya Pradesh High Court which refused to quash the FIR against her. 

Kapoor has been booked under sections 294 (obscene acts and songs) and 298 (Uttering, words, etc., with deliberate intent to wound the religious feelings of any person) & 34 of the Indian Penal Code, Sections 67 (Punishment for publishing or transmitting obscene material in electronic form) and 67-A (Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form) of the Information Technology (IT) Act, and Section 3 ( Prohibition of improper use of emblem) of the State Emblem of India (Prohibition of Improper Use) Act, 2005.

The complainant, Valmik Sakaragaye, a resident of Indore, had alleged that the web show XXX season 2, aired on Kapoor's subscription-based video platform - 'ALT Balaji', spreads obscenity and hurts religious feelings. The FIR also mentions a particular scene which allegedly portrays the Indian Army's uniform in a highly objectionable way.

Stating that a prima facie case is made out, the Madhya Pradesh High Court(Indore Bench) 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,

Earlier this year, a PIL was filed before the Allahabad High Court seeking a blanket ban on streaming of "XXX - Season 2", allegedly for disrespecting the Indian Army and their uniforms. The plea was however dismissed with a direction to approach the competent authority first.