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PETITIONER: CHANDRAKANT KALYANDAS KAKODAR

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT: 25/08/1969

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN SIKRI, S.M. MITTER, G.K.

CITATION:  1970 AIR 1390            1970 SCR  (2)  80  1969 SCC  (2) 687  CITATOR INFO :  R          1986 SC 967  (25)

ACT: Obscenity-Tests for determining-Penal Code Sec. 292.

HEADNOTE: The  appellant, the author of a short story and the  printer and publisher of the story were convicted under section  292 I.P.C.  on  a  charge  of  obscenity.   Setting  aside   the conviction this Court,     HELD:  It  is  the duty of the  Court  to  consider  the article,  story  or book by taking an overall  view  of  the entire  work and to  determine whether the obscene  passages are  so likely to deprave and corrupt those whose minds  are open  to  such  influences and in whose hands  the  book  is likely to fall; and in doing so the influence of the book on the  social morality of our contemporary society  cannot  be overlooked.   Even so as the question of obscenity may  have to  be judged in the light of the claim that the work has  a predominant literary merit, it may be necessary if it is  at all  required, to rely to a certain extent on  the  evidence and views of leading litterateurs on that aspect. [82 D;  83 E--G]     To  insist  that the standard would always  be  for  the writer  to see that the adolescent ought not to  be  brought into contact with sex or that if they read any references to sex  in what is written, whether that is the dominant  theme or  not,  they would be affected, would be  to  require  the authors  to write books only for the adolescent and not  for the adults What has to be seen is that whether a class,  not an  isolated  case, into whose hands the  book,  article  or story falls suffer in their moral outlook or become depraved by  reading  it or might have impure or  lecherous  thoughts aroused  in  their  minds.  The charge  of  obscenity  must, therefore, be judged from this aspect. [88 D, G--H] Ranjit  D’. Udeshi v. State of Maharashtra [1965] 1  S.C.R., 65 followed.     Applying  the above tests the story read as a whole  did not amount to its being pornography nor did it pander to the prurient interest. [87 A--B]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 170  of 1967.     Appeal  by  special leave from the  judgment  and  order dated October 25, 1966 of the Bombay High Court in  Criminal Appeal No. 805 of 1965.     S.S.   Kavalekar,   K.  Rajendra  Chaudhuri   and   K.R. Chaudhuri, for the appellant.     H.R. Khanna, B.D. Sharma and S.P. Nayar, for  respondent No.1. The Judgment of the Court was delivered by     P.  Jaganmohan  Reddy, J.  This  appeal  is  by  special leave  directed  against  the judgment of  the  Bombay  High Court. 81     The  appellant is the author of a short  story  entitled Shama  published  in  the 1962 Diwali  Issue  of  Rambha,  a monthly Marathi Magazine, which story is said to be obscene. Criminal  proceedings were, therefore, initiated before  the first   class   Magistrate, Poona by the  complainant  Bhide under  s.  292  I.P.C. against  the  Printer  and  Publisher accused 1, the writer of the story accused 2 and the selling agent  accused 3.  The complainant stated that he  had  read the  aforesaid  Diwali  issue of  Rambha   and   found  many articles  and  pictures  in  it  to  be  obscene  which  are calculated  to corrupt and deprave the minds of the  readers in  general  and  the  young  readers  in  particular.   The Complainant  further relented to several other  articles  in the  same  issue such as the story of  Savitri  and  certain cartoons  but  we are not now concerned with  these  because both  the  Magistrate as well the High Court did  not  think that  they  offended  the provisions of s.  292  I.P.C.  the magistrate  after an exhaustive consideration did  not  find the  accused  guilty  of the offence with  which  they  were charged and, therefore, acquitted them.  The complainant and the State filed appeals against this judgment of  acquittal. Before  the High Court it was  conceded that  there  was  no evidence  that   accused No. 3 had sold any  copies  of  the issues  of Rambha and accordingly the order of acquittal  in his  favour  was  confirmed.  In so far  as  the  other  two accused are concerned it reversed the order of acquittal and convicted the printer and publisher accused 1 and the writer accused 2 under s. 292 I.P.C. but taking into  consideration the degree of obscenity in the passages complained of a fine Rs.  25/-  only was imposed on each of the  accused  and  in default they were directed to suffer simple imprisonment for a  week.  It was also directed that copies of  the  magazine Rambha in which the offending story was published and  which may  be  in  possession  and power of  the  two  accused  be destroyed.     The  allegation,  against the accused  is  that  certain passages  in  the story of Shama at pp. 111-112,  114,  116, 118-121, 127, 128, 131, and 134 are said to be obscene.   In support  of  this the complainant examined himself  and  led the  evidence  of Dr. P.G. Sahstrabudhe and Dr. G.V. Purohit in  support of his allegation that the novel is obscene  and that the writer and publisher contravened the provisions  of s. 292 I.P.C.  Accused No. 1 stated that the story of  Shama was   written  by  an  ;able  writer  which   depicted   the frustration  in  the life of a poet and denied that  it  was obscene.   The writer Kakodar, accused No. 2 claims to  have written  about  60  such stories.  which  are  published  in

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different periodicals by reputed publishers.  He also denies that  Shama is obscene and states that  he  has   introduced certain characters in order to condemn the worst and glorify the   best and it was never his intention to  titillate  the sex feelings of the 82 readers,  but on the other hand his attempt was  to  achieve the  literary and artistic  standard which was  in   keeping with the style of some of the able and successful writers of Marathi literature.  In support of his defence, he  examined Shri  Keluskar  and  Prof.  Madho  Manohar  D.Ws.  1  and  2 respectively.   The Court on its own summoned  and  examined Prof.  N.S.   Phadke   and  Acharya  P.K.  Atre.   Both  the magistrate  as well as the learned Judge of the  High  Court were conversant with Marathi and they seem to have read  the story  of Shama in the original, an advantage which we  have not  got.   However,  on a consideration  of  the  offending passages  in  the story to which we shall  refer  presently, they came to different and opposite conclusions.     It  is apparent that the question whether  a  particular article  or  story  or  book is  obscene  or  not  does  not altogether depend on oral evidence because it is the duty of the  court  to ascertain whether the book or  story  or  any passage  or  passages  therein offend the provisions  of  s. 292.  Even so as the  question  of obscenity may have to  be judged  in  the  light  of the claim that  the  work  has  a predominant literary merit, it may be necessary if it is  at all  required, to rely to a certain extent on  the  evidence and   views   of  leading  litterateurs   on   that   aspect particularly  when the work is in a language with which  the Court  is not conversant. Often a translation may not  bring out the delicate nuances of the literary art in the story as it does in the language in which it is written and in  those circumstances what is  said  about  its literary quality and worth by persons competent to speak may be of value,  though as  was  said  in an earlier decision,  the  verdict  as  to whether  the book or article or story considered as a  whole panders to the prurient and is obscene must be judged by the courts and ultimately by this Court.     What is obscenity has not been defined either in s.  292 IPC  or  in any of the statutes prohibiting  and  penalising mailing,  importing,  exporting, publishing and  selling  of obscene  matters.  The test that has been generally  applied in  this  country was that laid down by  Cockburn,  C.J.  in Hicklin’s  case(1)  and even after the inauguration  of  the Constitution  and considered in relation to the  fundamental right of freedom of speech and expression this test, it  has been held, should not  be  discarded.  In  Hicklin’s case(1) while  construing  statutes 20 and 21  Victoria,  a  measure enacted against Obscene books, Cockburn, C.J. formulated the test in these words:                     "I think the test of obscenity is  this,               whether  the tendency of the matter charged as               obscenity  is  to deprave  and  corrupt  those               whose   minds   are  open  to   such   immoral               influences,  and into whose hands  publication               of (1) [1868] L.R. 3 Q.B. 360. 83                     this  sort  may  fail...  It  is   quite               certain  that  it  would      suggest  to  the               minds  of  the young of either  sex,  or  even               to persons of more advanced years, thought  of               most      impure and libidinous character." This  Court  has  in  Udeshi  v.  State  of   Maharashtra(1)

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considered     the above test and also the test  laid   down in   certain  other    American cases.  Hidayatullah, J.  as he  then  was, at the outset    pointed out that it  is  not easy to lay down a true test because    "art has such varied facets and such individualistic appeals that    in the  same object  the insensitive sees only obscenity  because     his attention is arrested, not by the general or artistic appeal or    message which he cannot comprehend, but by what he can see,   and the intellectual sees beauty and art but  nothing gross."   It was also pointed out in that decision at p. 74,                      "None has so far attempted a definition               of  obscenity because the meaning can be  laid               bare   without  attempting  a  definition   by               describing  what must be looked for.  It  may,               however,  be said at once that  treating  with               sex and nudity in art and literature cannot be               regarded  as  evidence  of  obscenity  without               something more.  It is not necessary that  the               angels  and saints of Michelangelo  should  be               made  to  wear  breeches before  they  can  be               viewed.   If the rigid test of  treating  with               sex  as the minimum ingredient  were  accepted               hardly  any   writer of  fiction  today  would               escape  the  fate Lawrence  had in  his  days.               Half the book-shops would close and the  other               half  would  deal  in nothing  but  moral  and               religious  books which Lord  Campbell  boasted               was the effect of his Act." It  is,  therefore, the duty of the court to  consider   the obscene matter by taking an overall view of the entire  work and  to determine whether the obscene passages are so likely to  deprave and corrupt those whose minds are open  to  such influences and in whose hands the book is likely to fail and in doing so one must not overlook the influences of the book on the social morality of our contemporary society.  We  can do no better than to refer to this aspect in the language of Hidayatullah, J. at p. 76:                       "An overall view of the obscene matter               in  the setting of the whole work  would,   of               course,  be  necessary, but the obscene matter               must be considered by itself and separately to               find  out  whether it is so  gross   and   its               obscenity  so  decided that it  is  likely  to               deprave  and       corrupt those  whose  minds               are  open to influences of this sort and  into               whose hands the book is likely to fall." (1) [1965] 1 S.C.R. 65.               84 Referring   to  the  attempt   which   our   national    and regional  languages are making to strengthen  themselves  by new  literary standards after a deadening period  under  the impact of English, it was further observed at p. 77,                     "that where obscenity and art are mixed,               art  must  so  preponderate as  to  throw  the               obscenity  into a shadow or the  obscenity  so               trivial and insignificant that it can have  no               effect and may be overlooked.  In other words,               treating  with  sex in a manner  offensive  to               public decency and morality (and these are the               words  of  our Fundamental Law), judged of  by               our  national standards and considered  likely               to pander to lascivious, prurient or  sexually               precocious    minds,   must   determine    the               result.  We need not attempt to bowdlerize all               literature and thus rob speech and  expression

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             of  freedom.  A balance should  be  maintained               between  freedom of speech and expression  and               public  decency  and  morality  but  when  the               latter   is  substantially  transgressed   the               former must give way." Bearing  in mind these observations and the tests laid  down in Udeshi’s case,(1) we propose to examine, having regard to our  national standards, the passages in Shama to  ascertain in  the  light of the work as a whole  whether   the   treat with   sex   in  such a way as to  be  offensive  to  public decency  and morality as can be considered likely to  pander to lascivious, prurient or sexually precocious minds.     The  second  appellant writes about the life of  a  poet Nishikant  who left school in the days of freedom  struggle, wrote revolutionary poems, but as the freedom struggle waned he  did not join school as others had  done  notwithstanding his brother’s advice that he should pass the metric so  that he  could  be  employed  in  service.   As  he  was   mostly unemployed,  he was living on his brother and on the  bounty of  his sister-in-law who was kind and considerate  to  him. Nishikant,  it will appear, is emotional, sensitive and  has the  power  to discern right from wrong.  The  story  starts ,with  his  being employed as a teacher  and   his   meeting Sharma,  the’ Music teacher in the school.   His  attraction for her and the opportunity she gives him to meet her  alone in her room fills him with a sense of foreboding lest he may have  to  endure  the pangs of suffering  which  he  had  to undergo.  in his two earlier affairs with Neela and  Vanira. The poet recalls  these  two affairs individually and we get the  impression that the pain which he underwent should  not be  repeated.   It  is more as a repellent  to  any  further involvement   with  Shama  that  these  experiences      are related. (1) [1965] 1 S.C.R. 65. 85     Neela who is about 17 years of age is the  daughter  015 a distant maternal cousin of his mother.  As she had reached the marriageable age, her father in Goa, Wasudeo who  always treated Nishikant’s mother like his own sister is anxious to get her married to some eligible youngman, but evidently the opportunity  for choosing the right person  was  remote.  So he   suggests  to Nishikant’s mother that  Nishikant  should come and bring Neela to Bombay to live with them where  they would   have  better opportunity of choosing a youngman  for her   to   be   married. Nishikant who was  appointed  in  a newspaper  office was at first reluctant but his  sister-in- law  persuades  him and so he goes to Goa.   When  he  meets Neela,  she had changed and was not as ugly as when  he  had seen  her  earlier.  The author then depicts  the  slow  but steady maturing of the love  between  them,  the seeking  of and getting of opportunities to be near to each other, their having to sleep in the same bed while on the boat coming  to Bombay and ultimately falling in love with each other  which developed  during  Neela’s stay in Bombay.   During  Neela’s stay  with  Nishikant’s family the love  between   her   and Nishikant  became intense as a result Nishikant proposes  to marry  her and writes to her father for his  consent.   They wait for a reply but unknown to Nishikant, Neela receives  a reply  from her father rejecting the proposal on the  ground that  Nishikant is unemployed and would not join  Government service even though he had suggested it to him.  He says  in that  letter  that poetry may bring him fame but  would  not give him a livelihood.  As he was entirely dependant on  his brother  for his  maintenance,  the  father refused to  give his  consent in the interest of Neela’s happiness  and  told

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her  that he was coming back to fetch her.  As Neela was  in love  with Nishikant but she knew that  she  would  not   be married  to him, she encourages him to bring their  love  to culmination.   This state of affairs lasted for a  few  days before  her  father took her away.  About two  months  later Nishikant  receives an invitation card for Neela’s  marriage and thereafter he received another letter written by Wasudeo to his daughter to which we have earlier referred and  which also.  contained  at  the  back of  it  Neela’s  message  to Nishikant asking him to forget her.     Even after four years he was unable to forget Neela  and had taken to drinking and coming home late.  He was idle for long  spells  and whenever he thought of Neela  he  wrote  a poem.   Then one day he was introduced to Vanita who  was  a graduate and a married woman who had left her husband.   She was a critic of stories and novels.  When they met, she  had praised  his poems and had invited him to come to. her  room ostensibly  to  discuss his poetry.  Vanita is shown  as  an oversaxed  woman, experienced and forward, making   advances and  suggestions. Ultimately she and Nishikant have  several affairs till one morning 86 he  finds  that the person who had introduced her   to   him was  coming  out of her room and when he went  in  he  found Vanita  sleeping naked.  His spirit revolted seeing  her  in that  condition. He was greatly upset at  her  recalcitrance when  he asked her how many more men she had.   She  replied that it had nothing to do with him, that he had got what  he wanted  and  she  does not want     to be  a  slave  to  any person.   He retorted with indignation that he did not  wish to  see her face and walked out.  He  had  then made up  his mind not to have any relations with any woman.     It was with such unpleasant experiences that when he met Shama  and  was  attracted  to her  he  was  hesitating  and avoiding  meeting her alone but circumstances  conspired  to bring   them  together and again  another  affair  developed between  them.  He encourages Shama to sing,  writes  lyrics for her songs and when she gives a performance in school  he arranges  for a radio and gramophone representatives  to  be present  there.  Her music was appreciated and she began  to get  audition  from  these sources. It appears  one  of  the school  teacher Kale had earlier attempted to make  love  to Shama  and  she  had  slapped   him.   When   Kale   informs Nishikant  that  he  knows about  his  affairs  with  Shama, Nishikant gets angry and tells him that he knows how he  was slapped  by Shama for making advances to her.  This  enraged Kale and he seems to have taken his revenge by maligning the character of Shama to the Principal.  As a result  of  this, the Principal dismissed her.  Hearing this,  Nishikant  gets angry,  goes to the Headmaster and accuses him of  being  an accomplice  of  Kale  and  leaves  the  service.   He   then persuades  Shama  to start a music school,  later  gets  her engagements  in films as a playback singer for which he  was asked to write lyrics.  Shama’s reputation as a singer grows rapidly  in the Marathi public.  It was then that her  uncle knowing  of  it  comes to see  her  and  makes  insinuations against  Nishikant  who is offended and hurt  because  Shama does  not  prevent her uncle but listens to  him  without  a demur.  Periodical  quarrels  are  witnessed  because  Shama becomes  more status minded, begins to think of  her  wealth and  position and moves into wealthy quarters all  of  which are against Nishikant’s outlook and temperament.  Both began to  fall apart and the visits of Nishikant to  Shama  became rare.   Even  though Nishikant lives in poverty, he  is  too proud  to ask her money and is not willing to live with  her

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on her conditions.  He stays away from her, showing that  he has pride, self respect and spirit of sacrifice.  Suddenly a realisation  comes to Shama that she had  wronged  Nishikant and  that she owed everything to him, and therefore  has  an intense desire for reconciliation.  In this state of affairs When she hears that he is taking part in the Kavi Samelan on the radio she gets into the car and asks her driver to drive fast 87    to  the  radio  station.  On  tiffs  pitch  of  expectant reconciliation    and ultimate reunion the story ends.    The  story read as a whole does not, in our view,  amount to    its  being  a pornography nor does it  pander  to  the prurient  interest.   It may not be of a very high  literary quality   and   may   show    immaturity  and   insufficient experience  of  the writer, but in none    of  the  passages referred to by the complainant do we find anything offending public  order or morality.  The High Court itself   did  not consider the description of Neela when Nishikant meets   her in Goa (at p. 107) objectionable, nor the narration and  the description of the situation which is created for  Nishikant and   Neela on the way back to Bombay from Goa when for want of   room  they had to sleep on a single bed  (p.  112)   as obscene.  The passages at pp. 112, 114, 119-120 and 131 have been  found   by the High Court to come within the  mischief of   s.  292  I.P.C.    We  have  been  taken  through   the corresponding passages in the   English translation and even allowing  for  the   translation  not    bringing  out   the literary   or   artistic  refinement   of    the    original language,  we find little in these passages which  could  be said    to deprave or corrupt those in whose hands the  book is  likely    to fall, nor can it be said that  any  of  the passages  advocates, as   the High Court seems to  think,  a licentious  behaviour depraving   and corrupting the  morals of  adolescent  youth.  We  do  not   think that it  can  be said  with  any assurance that merely  because    adolescent youth  read  situations of the type presented in  the  book, they  would  become  depraved,  debased  and  encouraged  to lasciviousness.   It is possible that they may  come  across such situations in life and may have to face them.  But if a narration or   description of similar situations is given in a  setting emphasising   a strong moral to be drawn from  it and condemns the conduct   of the erring party as wrong  and loathsome  it cannot be said  that   they have a  likelihood of  corrupting  the morals of those in whose   hands  it  is likely to fall--particularly the adolescent.       In  the passage at pp. 113-114 Nishikant  takes  Neela out  to   show the sights of the city of Bombay but  instead takes  her  to   a picture where after the  lights  go  off, seeing  a  soldier and his   girl friend in  front  kissing, they  also indulge in kissing.  Then   as we  said  earlier, when  the love between them develops Nishikant   wanted   to marry   but   the  father  of  the  girl   was    unwilling. Neela  realising that their love could never be  consummated encourages  him to bring it to a culmination.  In  this  way they  enjoy  unmarried bliss for a few  days  until  Neela’s father takes   her away.       We agree with the learned Judge of the High Court that there    is  nothing in this or in the  subsequent  passages relating  to  Neela,    Vanita and Shama  which  amounts  to poronography nor has the   author indulged in a  description of the sex act  or  used  any 88 language which can be classed as vulgar.  Whatever has  been done  is done in a restrained manner though in  some  places

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there  may have been an exhibition of bad taste, leaving  it to  the  more  experienced  to  draw  the  inferences,   but certainly  not  sufficient  to  suggest  to  the  adolescent anything   which   is   depraving  or  lascivious.   To  the literate  public there are available both to the adults  and the adolescents innumerable books  which  contain references to  sex. Their purpose is not, and they have not the  effect of stimulating sex impulses in the reader but may form  part of  a work of art or are intended to propagate ideas  or  to install a moral.     The  concept of obscenity would differ from  country  to country depending on the standards of morals of contemporary society.  What  is considered as a piece  of  literature  in France may  be obscene in England and what is considered  in both countries as not harmful to public order and morals may be obscene in our country.  But to insist that the  standard should  always be/or the writer to see that  the  adolescent ought  not  to be brought into contact with sex or  that  if they  read any references to sex in what is written  whether that  is the dominant theme or not they would  be  affected, would  be  to require authors to write books  only  for  the adolescent  and  not  for  the  adults.   In  early  English writings authors wrote only with unmarried girls in view but society  has  changed since then to allow  litterateurs  and artists  to  give expression to their  ideas,  emotions  and objectives with full freedom except that is should not  fall within  the  definition of ’obscene’ having  regard  to  the standards of  contemporary society in which it is read.  The standards  of  contemporary society in India are  also  fast changing.  The adults and adolescents have available to them a  large number of classics, novels, stories and pieces,  of literature  which have a content of sex, love  and  romance. As.  observed in Udeshi’s(1) case if a reference to  sex  by itself  is considered obscene, no books can be  sold  except those  which are purely religious.  In the field of art  and cinema also the adolescent is. shown situations which even a quarter  of a century ago would be considered derogatory  to public   morality, but having regard to  changed  conditions are  more  taken for granted without in  anyway  tending  to debase  or  debauch the mind. What we have to  see  is  that whether a class, not an isolated case, into whose hands  the book,  article or story falls suffer in their moral  outlook or  become depraved by reading it or might have  impure  and lecherous  thought  aroused in their minds.  The  charge  of obscenity must, therefore, be judged from this aspect.     We do not think that any of the impugned passages  which have been held by the High Court as offending s. 292  I.P.C. can (1) [1965] 1 S.C.R. 65. 89 be  said  to  pervert the morals of  the  adolescent  or  be considered  to  be  obscene.  In this  view,  we  allow  the appeal, set aside the conviction and fine.  The fine if paid is directed to be refunded. R.K.P.S.                                     Appeal allowed. L1 Sup. CI/70--7 90