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PETITIONER: SAMARESH BOSE AND ANR.

       Vs.

RESPONDENT: AMAL MITRA AND ANR.

DATE OF JUDGMENT24/09/1985

BENCH: SEN, AMARENDRA NATH (J) BENCH: SEN, AMARENDRA NATH (J) PATHAK, R.S.

CITATION:  1986 AIR  967            1985 SCR  Supl. (3)  17  1985 SCC  (4) 289        1985 SCALE  (2)1225

ACT:      Indian Penal  Code, section  292, ingredients and scope of Obscenity,  concept of - Duty of the Court in judging the question of  obscenity, explained  - Whether the novel under the caption  ’Prajapati’ published in "Sarodiya Desh" in the Bengali Journal  Desh contains  matters  which  are  obscene attracting liability under section 292 read with section 109 I.P.C. Of the author and the printer and the publisher.

HEADNOTE:      Samaresh Bose,  the first  appellant, is  a  well-known writer of  Bengali Novels and stories. He is the author of a novel  which  under  the  caption  "Prajapati"  came  to  be published in  "Sarodiya Desh"   (the- annual pooja number of the Bengali  Journal ’Desh’)  for the Bengali year 1374 B.S. The novel  centres round  one Sukhen who figures as the main character and  seeks to  express the  feelings, thoughts and actions of  Sukhen and  to portray  his character.  This the author seeks  to do  through Sukhen himself who narrates his own experience.  , feelings, thoughts and actions in his own words what he has seen in others, which he despised and what he himself  did and  how he  fell a victim to wine and women and later  gradually slided into slimy life from that of the atmosphere he  earlier experienced,  bereft of  any love and affection and proper guidance. "Desh" is a journal of repute with wide  circulation and the puja number is read by lovers of Bengali’  literature of  all age  groups all  over India, Sitangshu  Kumar  Dasgupta,  the  second  appellant  is  the publisher and the printer of the journal containing the said publication.      On the  2nd of  February, 1968,  Amal Mitra, the second respondent, and a young Advocate, made an application in the Court  of   the  Chief  Presidency  Magistrate  at  Calcutta complaining; (a)  that the  said novel  "Prajapati" contains matters which are obscene; (b) that both the accused persons have, sold,  distributed, printed  and  exhibited  the  same which has  the tendency  to corrupt  the morals  of those in whose hands  the said  "Sarodiya Desh"  may fall  and    the reading public  as well";   and (c) that therefore, both the accused persons  have committed  an offence punishable under section 292 Indian Penal Cote rest section 109 thereof. 18

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    On the basis of the said complaint and after compliance with the  necessary formalities,  a Criminal Case No. 353/68 against both  the accused  persons came  to be  started  and disposed of  by the  then  Chief  Presidency  Magistrate  of Calcutta by  his judgment  dated 11th February, 1968. During the trial  on behalf  of the  accused Shri Budhadev Bose, (a whole  time   writer  in   Bengali,  Professor   of  various institutions, the  Chairman of the Comparative Literature at Jadavpur   University,   visiting   professor   of   various universities in United States of America) and one Dr. Naresh Chandra Guha  (the Professor  and Head  of the Department of Comparative  Literature   at  Jadavpur  University  who  had delivered lectures  on  Bengali  literature  before  various literary  gatherings,   over  the  radio  and  also  in  the University of  Chicago on the works of Rabindra Nath Tagore) were examined. When various passages which are alleged to be obscene by  the complainant  were  put  to  them,  both  the witnesses emphatically  refuted that there was any obscenity in any  of those passages. According to them, the words used by the  accused author  may have  been unknown in literature but they  were  very  widely  current  in  speech;  that  by introducing these  forceful words into literature the author has done a service to Bengali Literature the author has done a service to Bengali Literature and language making the book praiseworthy; that the passages were necessary as they bring about the moral aspects of the hero’s character and that the novel has great social and moral value.      The Trial  Judge did  not place  any  reliance  on  the testimony of  these two  eminent witnesses  and proceeded to make his  own assessment after reading the book and that too "with an  open mind  and a  number of  times" for the reason that expert  knowledge has nothing to do with such cases and whether  a   book  is   obscene  or   not  depends   on  the interpretation of section 292 I.P.C. Only. After setting out in his  judgment the  gist of  the story  and  referring  to various aspects  and incidents and at length for considering whether the  book can  be said  to be obscene, he found that the novel  in question  was obscene  within the  mischief of section 292  I.P.C. Both  the accused were, therefore, found guilty by  the Trial  Judge under  section 292  I.P.C.. read with 109  I.P.C. The  Trial Judge accordingly convicted both the accused  and sentenced  both of them to a fine of rupees 201 each  and in  default to undergo simple imprisonment for two months  each. The  Trial Judge  also directed  that  the pages from  174 to 226 of the journal be destroyed under the provisions of  section 521 Criminal Procedure Code after the period of appeal was over. 19      Against the  judgment and  order passed  by  the  Trial Judge   both the  accused preferred  an appeal  to the  High Court at  Calcutta. The  complainant also  filed a  criminal revision in  the High  Court for enhancement of the sentence imposed by  the  Chief  Presidency  Magistrate  on  the  two accused persons.  The Criminal  Appeal Number  106/1969, and the Criminal Revision Number 299 of 1969 were heard together and disposed  of by  a Single  Judge of  the High court by a common judgement  delivered on  27.6.1972.  The  High  Court discharged the  rule in  the Criminal  Revision No. 299/1969 and  dismissed  the  appeal  affirming  the  conviction  and sentences imposed  OB both  the accused  persons.  The  High Court, however, modified the order regarding the destruction of pages  from 174  to 226  of the Journal under section 521 Cr. P.C.  by observing  that in  as much  as the  said novel which appear  at those  pages has been published in the form of a  book also  the Chief Presidency Magistrate should take

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appropriate steps under section 521 in respect of the copies of the  novel published separately in a book from. Hence the appeal by the accused person , after obtaining special leave of the Court.      Allowing the appeal, the Court ^      HELD: 1.1  The question  whether a  particular 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 offends  the provisions of section 292 I.P.C. It may be necessary if  it is  at all  required, to  rely to a certain extent on  the evidence  and views of leading literatures on that aspect particularly when the book is in a language with which the Court is not conversant. [53 D-F]      Ranjit D.  Udeshi v.  State of  Maharashtra,  [1965]  1 S.C.R.  65;   Chandrakant  Kalyandas  Kakodar  v.  State  of Maharashtra, [1970] 2 S.C.R. 80 relied on.      1.2 Unlike  England where  the decision on the question of obscenity  rests with  the jury,  in India,  however, the responsibility of  the decision  rests  essentially  on  the Court. In  deciding the  question of  obscenity of any book, story or  article the  Court whose  responsibility it  is to adjudge  the   question  may,  if  the  Court  considers  it necessary, rely  to an  extent  on  evidence  and  views  of leading  literary   personage,  if  available  for  its  own appreciation and  assessment and for satisfaction of its own conscience. The decision of the Court must necessarily be on an objective assessment of the book or story or article as a whole  and   with  particular   reference  to  the  passages complained of 20 in the  book, story  or article.  The  Court  must  take  an overall view  of the  matter complained of as obscene in the setting of the whole work, but the matter charged as obscene must also be considered by itself and separately to find out whether it  is 80 gross and its obscenity 80 pronounced that it is  likely to  deprave and  corrupt those whose minds are open to influence of this sort and into whose hands the book is likely  to fall.  Though  the  Court  must  consider  the question objectively with an open mind, yet in the matter of objective assessment  the subjective  attitude of  the Judge hearing the  matter is  likely  to  influence,  even  though unconsciously his  mind and  his decision on the question. A Judge with a puritan and prudish outlook may on the basis of an objective  assessment of  any book  or story  or article, consider the same to be obscene. It is possible that another judge with  a different kind of outlook may not consider the same book  to be  obscene on his objective assessment of the very same book. [47 D-H; 48 A-B]      The concept  of obscenity  is moulded   to a very great extent by the social outlook of the people who are generally expected to  read the  book. It  is beyond  dispute that the concept of obscenity usually differs from country to country depending on  the  standards  of  morality  of  contemporary society in  different countries.  Therefore, including   the question of  obscenity, the  Judge in the first place should try to  place himself in the position of the author and from the view  point of  the  author  the  Judge  should  try  to understand what  is it  that the  author seeks to convey and whether what the author convey has any literary and artistic value. The  Judge should,  thereafter, place  himself in the position o  a reader of every age group in whose hands  the book is  likely to  fall and  should try  to appreciate what kind of possible influence the book is likely to have in the minds of  the readers. A Judge, should thereafter, apply his

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judicial mind  dispassionately to decide whether the book in question can  be said  to be  obscene within  the meaning of section 292 I.P.C. by an objective assessment of the book as a whole  and also  of the  passages complained of as obscene separately.  In   appropriate     case  ,   the  Court,  for eliminating any  subjective   element or personal preference which may  remain hidden  in the  sub-concious  mind and may unconsciously affect a proper objective assessment, may draw upon the  evidence on  record and  also consider  the  views expressed  by reputed or recognized authors of literature on such questions if there be any for his own consideration and satisfaction to  enable the  court to  discharge the duty of making a proper assessment. [48 B-F] 21      Ranjit D.  Udeshi v.  State of  Maharashtra,  [1965]  1 S.C.R.   65,  Chandrakant  Kalyandas  Kakodar  v.  State  of Maharashtra, [1970] 2 S.C.R. 80 relied on.      Queen v.  Read (11  Mod. 205  Q.B.);  Hicklin  ’s  case [1868] L.R.  3 Q.B.  360; Roth’s  case 354  U.S. 476;  R. v. Penguine Books  Ltd. Crl.  Law Review  1961  P  Quoted  with approval.      2.1 The  novel "Prajapati"  cannot be  considered to be obscene on  any count, whether considered in the position as an author  or that  of the  reader. Sarodiya  Desh is a very popular journal  and is  read by a large number of Bengalies of both  sexes and  almost of  all ages  all over  India  by teenagers, young  boys, adolescents,  grown-up youngmen  and elderly people  and the  novel published  in the Journal did not affect  the moral  character of the complainant as well. Reference to  kissing,  description  of  the  body  and  the figures of the female characters in the book and suggestions of acts  of sex  by themselves  may not  have the  effect of depraving, debasing  and encouraging  the readers of any age to Lasciviousness. [51 F-H]      2.2  A  vulgar  writing  is  not  necessarily  obscene. Vulgarity arouses  a feeling  of disgust  and revulsion  and also boredom  but does  not have  the effect  of  depraving, debasing and  corrupting the  morals of  any reader  of  the novel, whereas  obscenity has  the tendency  to deprave  and corrupt  those   whose  minds   are  open  to  such  immoral influences. [52 C-D]      2.3 In the instant case; (i) the character like Sukhen, Shikha, the  father and the brothers of Sukhen, the business executives and  others portrayed  in the  book are  not just figments of  the author’s  imagination. Such  characters are often to  be seen  in real  life in  the society;  (ii)  the author who  is a  powerful writer  has  used  his  skill  in focussing the attention of the readers on such characters in society and to describe the situation more eloquently he has used unconventional  and slang words so that in the light of the author’s  understanding,  the  appropriate  emphasis  is there on  the problems;  (iii) some portions of the book may appear to  be vulgar  and readers  of cultured  and  refined taste may  feel  shocked  and  disgusted.  Equally  in  some portions, the  words used  and  description  given  may  not appear to  be in proper taste. In some places there may have been an exhibition of bad taste leaving it to the readers of experience and  maturity to draw the necessary inference but certainly not  sufficient to  bring home  to the adolescents any 22 suggestion which  is depraving  or Lascivious;  and (iv) the author has  written this novel which came to be published in the Sarodiya  Desh for  all classes of readers and lt cannot be right  to insist  that the  standard should always be for

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the writer  to see  that the  adolescent may  not be brought into contact  with sex.  If a  reference to sex by itself in any novel is considered to be obscene and not fit to be read by adolescents,  adolescents will  not be  in a  position to read any novel and "will have to read books which are purely religious." [52 D-H; 53 A-D]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 174 of 1973.      From the  Judgment and  Order dated  27.6.1972  of  the Calcutta High Court in Crl. A. No. 106 of 1969.      G.L. Sanghi,  Sukumaran and  Ms. Ratna  Kapur  for  the Appellants.      U.R. Lalit,  R.K. Jain, D.S. Mehta, M.M. Israily, Dilip Sinha, J.R. Das and D.N. Mukharji for the Respondents.      The Judgment of the Court was delivered by      AMARENDRA  NATH   SEN,  J.  Samaresh  Bose,  the  first appellant, is  a well-known  writer of  Bengali  Novels  and stories. He is the author of a novel which under the caption ’Prajapati’ came  to be  published in  ’Sarodiya Desh’  (the annual pooja  number of  the Bengali Journal ’Desh’) for the Bengali year  1374 B.S.  ’Desh is  a journal  of repute with wide circulation  and the  puja number  is read by lovers of Bengali  literature  of  all  age  groups  all  over  India, Sitangshu Kumar  Dasgupta,  the  second  appellant  was  the publisher and  the printer  of the  journal at  the relevant time.      On the  2nd of  February  1968,  Amal  Mitra,  a  young Advocate, made  an application  in the  Court of  the  Chief Presidency Magistrate  at Calcutta complaining that the said novel ’Prajapati’  contains matters  which are  obscene  and both the accused persons have, sold, distributed printed and exhibited the  same which  has the  tendency to  corrupt the morals of  those in whose hands the said ’Sarodiya Desh’ may fall and  the reading  public as  well and  both the accused persons have  committed an  offence punishable  under .  292 Indian Penal  Code (I.P.C.- for short) and under S. 292 read with S. 109 I.P.C. 23      On the basis of the said complaint and after compliance with the  necessary formalities,  a criminal case being ca e No. 353/68  against both the accused persons was started and the said  criminal case  was disposed  of by  the then Chief Presidency Magistrate  of Calcutta  by his  judgement  dated 11th February, 1968. The Learned Chief Presidency Magistrate for reasons recorded in the judgement held:-           "Two persons  are facing  their trial, accused No.           1, Shri  Samaresh Basu,  a modern writer of repute           and accused No. 2, Shri Sitangshu Kumar Das Gupta,           the Printer  and Publisher  of  a  very  important           magazine like ’Desh’.           The novel in question has been found to be obscene           and as  such accused  No.  1  Shri  Samaresh  Basu           cannot escape  liabilities. The  same is  also the           condition with  accused No.  2  -  Shri  Sitangshu           Kumar   Das    Gupta.   He    has   got    special           responsibilities to  see that  his publication may           not affect the readers of the same.           For the  reasons stated  above, though the accused           No. 1  Shri Samaresh Basu, is a powerful writer, I           cannot but  strike down  the impugned novel, after           declaring the same as obscene.

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         The result  of my  above findings, is to find both           the accused  guilty u/s  292 I.P.C.  and I convict           both of them accordingly.           Next question  arises as to what punishment should           be inflicted.           Considering the  facts and other connected matters           I sentence both of them to pay a fine of Rs. 201/-           each in  default to  undergo S.  1 for  two months           each.           Let the  pages from  174  to  226  of  Ext.  1  be           destroyed under  the provisions of Section 521 Cr.           P.C. after the period of appeal be over."      Against the  judgment and order passed by learned Chief Presidency Magistrate  both the  accused preferred an appeal to the  High Court at Calcutta. The complainant also filed a criminal revision  in the  High Court for enhancement of the sentence 24 imposed by  the  Chief  Presidency  Magistrate  on  the  two accused persons.  On the criminal revision application which was numbered  as Criminal  Revision No. 299 of 1969 rule was issued by  the High  Court. The  criminal appeal  which  was filed by  the two  accused persons  was numbered as Criminal Appeal No.  106/69. The  Criminal Appeal No. 106/69 and also the Criminal  Revision No.  299/69 were  disposed  of  by  a single Judge  of  the  High  Court  by  a  common  judgement delivered on  27.6.1972. m  e High Court discharged the rule in the Criminal Revision No. 299/69 and dismissed the appeal affirming the  sentences imposed on both the accused persons with the following further observations :-           "In the Petition of complaint only the publication           of the  novel in the Sardiya Sankha of Desh of the           Bengali Year 1374 at pp. 174 to 225 was mentioned.           Only one copy of that journal Desh was marked Ext.           1 in  the court  of the  Magistrate. m  e  learned           Chief Presidency  Magistrate has directed that the           pages from 174 to 226 of Ext. 1 be destroyed under           the provisions of Sec. 521 Cr. P.C. m at serves no           purpose unless  all the  printed  copies  of  that           issue of  Desh are  forfeited and  in  every  copy           thereof pages  from 174  to 226  be destroyed. m e           Magistrate  also  failed  to  notice  that  during           evidence it  has come out that this novel has been           published also  as a book. m at publication in the           form  of  a  book  of  this  novel  need  also  be           forfeited under  Sec. 521  Cr.P.C. While  I affirm           that the  learned Magistrate’s decision to destroy           the offending  pages should  be upheld.  I  direct           that the learned Chief Presidency Magistrate shall           take appropriate  steps under S. 521 in respect of           the other  copies of Ext. 1 and also in respect of           the novel  if published  in book  form. m e appeal           fails and is dismissed."      Against the judgment of the High Court both the accused persons  have  preferred  this  appeal  with  special  leave granted by this Court.      The  question  for  consideration  in  this  appeal  is whether the  two appellants can be said to have committed an offence under  S. 292 I.P.C. and the answer to this question will necessarily  depend on  the finding  whether the  novel ’Prajapati’ is obscene or not. 25      It may  be noted  that in  the trial before the Learned Chief  Presidency   Magistrate  the   complainant  and   one Kalobaran Ghosh a businessman, had deposed; accused Samaresh

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Bose  and  accused  Sitangshu  Kumar  Das  Gupta  were  both examined, and  two well-known persons in the literary field, (1) Shri  Budhadev Bose  and (2)  Dr. Naresh  Guha had given evidence  on   behalf  of   the  accused.  Amal  Mitra,  the complainant, in the course of evidence stated that he was an Advocate of  the Calcutta  High Court  and was  a reader  of Bengali Literature  and he  considered it  to be his duty to uphold the  purity of Bengali Literature. It is his evidence that the  book 18  obscene and has got no literary value and the book,  if read  by any  person  and  particularly  young persons, may  corrupt the  morals of  the readers. He marked various portions  in the  book which  according to  him were obscene. In  the course of his cross-examination, Shri Mitra was asked  about various  other Bengali  novels  written  by other  eminent   writers,  namely,   Probodh  Kumar  Sanyal, Budhadev Bose and Ananda Shankar Roy and he admitted that he had not  read any book by them. He also stated in his cross- examination that  though he  had gone  through the  book his moral character  had not  been affected in any way. me other witnesses  examined   on  behalf   of  the  complainant  was Kalobaran Ghosh,  a businessman  carrying on the business of manufacturing  engineering  goods.  He  has  stated  in  his evidence that  he has  a family  and  he  is  interested  in Bengali literature.  It is  his evidence  that  after  going through the  novel ’Prajapati’ he formed an opinion that the novel was  absolutely obscene  meant to pollute the minds of the younger  generation and  was written with a view to earn money and  he could  not hand  over the book to his children for  reading   the  same.   In  the  course  of  his  cross- examination, this  witness  stated  that  he  had  read  the writings of  late Sarat Chandra Chattopadhyay, Rabindra Nath Tagore and  Ananda Shankar Roy and he would not say that any of their  writings was  obscene. This witness further stated in the  course of cross-examination that he had not read all the books written by Budhadev Bose, Probodh Sanyal, Achintya Kumar Sengupta.  This witness admitted that with the passing of time, the standards of the literature were going down and so also the standards of obscenity.      The first  witness called  on behalf of the accused was Shri Budhadev  Bose. In  his  evidence  Shri  Budhadev  Bose stated that  he was  a whole  time writer and in addition to that he  was a  Professor of various institutions and he had also been  the Chairman  of the  Comparative  Literature  at Jadavpur University for seven years and he had also been the visiting professor  of various universities in United States of America. He further 26 stated that he had at least written about 200 books and also many critical works and the books written by him were mostly in Bengali  excepting two  books which  were in  English. He stated in the course of his evidence-           "I can unhesitatingly say that Shri Basu is one of           the  most   important  Bengali  Novelists  of  the           generation after  mine. I  might be 20 years older           to Shri  Basu. Some  sort of  restraint should  be           there to  regulate the obscene writings. I mean to           say that  in  certain  special  cases  it  may  be           necessary to  impose some restraint on literature.           I have  read the novel ’Prajapati’ as published in           the Sarodiya  Desh issue  of  the  Year  1374  and           subsequently published  in book  form. That is the           book which is being considered in this trial.           Q.  Do   you  consider  that  book  or  the  novel           ’Prajapati’ to be an obscene writing?           A. Not at all.

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         Q. Would you say any portion of that writing to be           obscene?           A. No."      In the  course of his evidence, his attention was drawn to various  passages in  the book  which were  alleged to be obscene and  he categorically  stated that there was nothing obscene in  any of  these passages.  This witness was cross- examined at  length. Various passages in the book alleged to be obscene  were put to this witness and it was suggested to him that these passages were obscene. Shri Basu emphatically and categorically  denied that  those passages  or any  part thereof could  be characterised  as obscene. When asked what was his concept of obscenity, Shri Basu in his answer stated In my  opinion, if a piece of writing can be called literary in the  special sense,  it cannot  be obscene. Literature in the technical  sense means  an imaginary  piece of writing . When asked  in the  course of  cross-examination to  cite an example in support of the proposition that a writing vividly describing a  sexual  act  and  sexual  perversity,  was  of literary and moral value, Shri Basu answered as follows: 27           "Anybody who  knows the  works  of  Rabindra  Nath           Tagore, knows  that throughout  his life  he was a           great advocate  of freedom,  we can  say, also  of           social and  sexual freedom  May I  remind everyone           here  of   his  novel   ’Chokher  Bali’  where  he           describes a  love  relationship  between  a  young           Hindu widow and a youngman. May I remind everybody           here of  ’Ghare Baire’  where a  married woman,  a           very highly respected woman falls in love with her           husband’s friend.  May I  remind everyone  here of           Tagore’s novel ’Chaturanga’ where an actual sexual           act is  described in  a  very  poetic  and  moving           language."      In  cross-examination   with  regard  to  a  particular passage at  p. 178  which is  alleged to  be  obscene,  this witness was asked what was it that the author was describing in that  passage. The  following  answer  to  this  question followed by further questions and answers may be noted:-           "A. He  is describing some pictures that he had at           one time seen.           Q. Mr.  Bose, do you say that this sort of writing           is unconventional?           A. It is not very unconventional in 1968.           Q. Mr.  Bose would  you like to say that teenagers           reading this  portion would not be affected in any           way?           A. I have already said that they will be repelled.           Q. I  put it  to you  that this passage is obscene           and it would pollute their minds?           A. I  do not think it is obscene at all, nor is it           liable to corrupt the young or older people.           Q. Mr.  Bose do  you  agree  that  in  this  novel           ’Prajapati’, the  writer  has  chosen  many  words           which  perhaps   are  unknown   to   the   Bengali           Literature?           A. These words may have been unknown in literature           but they were very widely current in speech. By 28           introducing these  new  and  forceful  words  into           literature  the  author  has  done  a  service  to           Bengali literature and language and that is one of           the reasons  why the  book is  praise-worthy. That           passage was  necessary because this passage brings           out the moral aspects of the hero’s character."

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    It was  put to this witness that this novel ’Prajapati’ has no  moral value  and in answer the witness stated. In my opinion, it  has great  social and  moral  value  .  When  a further suggestion  was put  to him  in the course of cross- examination that  the book ’Prajapati’ had been written only with commercial motive, the witness categorically denied the suggestion  saying   certainly  not   .  In  answer  to  the suggestion made  to Mr.  Bose that  he was  not  capable  of judging what  is good  and what  is bad  in  literature  his evidence was:           "Many people think both in India and abroad that I           am excellent  Judge of literature and I agree with           them. On  the strength  of the  reputation I  have           been invited  several times  to teach  at American           Universities and  to lecture on literature in many           famous Universities in Europe and in Asia."      The other  witness called  on behalf of the accused was Dr. Naresh  Chandra Guha  who at  the  time  of  giving  his evidence was  the Professor  and Head  of the  Department of Comparative Literature  at Jadavpur  University. Dr. Guha in the course  of his evidence said that as part of his duty he had  to  deliver  lectures  on  Bengali  Literature  and  in addition to  that he  addressed various  literary gatherings and had  spoken over  the radio  and he had also addressed a meeting in  the  University  of  Chicago  on  the  works  of Rabindra Nath  Tagore.  This  witness  stated  that  he  had written two books till then, one in English and the other in Bengali. It  was the  evidence of  this witness  that he had read quite  a few  books written  by Samaresh  Bose  and  he considered him  to be  a very  powerful writer.  It  is  his categorical evidence  that he has read the novel ’Prajapati’ and he  does not  consider that  book as  an obscene one and this novel is not obscene either in part or as a whole. When certain passages  of the  book alleged  to be obscene by the complainant were  pointed out  to him to ascertain his views as to  whether those  passages were  obscene,  this  witness stated that he did not consider the same to be obscene as in his view  it is  a necessary part of the scheme of the novel which scheme was social criticism with a moral purpose. 29 When asked  whether the moral purpose of the novel will come through to  the general  reader, this  witness said  in  his evidence-           "If the  reader is  one who is used to literature,           by which  I mean  who does not read once a while a           book in  his life,  the moral  purpose of the book           will be  very obvious.  I  feel  as  a  man  whose           profession is  teaching literature in M.A. classes           this is  how I  could look  to them for this book.           Here is  a young man Sukhen, a small town man, who           never had the occasion to experience human love."      Dr. Naresh  Chandra Guha  was  also  cross-examined  at length.   Various passages which were alleged to be and were considered to be obscene by the complainant were put to this whitens. Dr.  Naresh Chandra  Guha clearly  and emphatically refuted that  there  was  any  obscenity  in  any  of  those passages. The following questions put to the witness and the answers given by him may also be noted:-           "A. No  Sir, My  answer entirely goes against your           suggestion.           Q. Mr.  Guha, I  put it  to  you  that  the  novel           ’Prajapati’  in   question  in   general  and  the           portions marked  with red  lines in particular are           obscene?           A. I do not think 80.

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         Q. I  put it to you that the novel ’Prajapati’ has           the tendency  to corrupt the morals of those whose           minds are open to immoral influence.           A. No, it is not 80.           Q. I  put it to you that the novel Prajapati would           pollute the  minds of  those readers who are young           adolescent and of impressionable age?           A. I  have got  some students.  They have read the           book. I  know, they  have not been corrupted. They           are of  the age group between 18 upwards. They are           college students or university students."      It may  be noted  that  the  learned  Chief  Presidency Magistrate had  placed no reliance on the testimony of these two witnesses. 30 In fact,  he has  placed no  reliance on  the oral testimony which was  adduced before  him. The learned Chief Presidency Magistrate has  proceeded to  make his  own assessment after reading the  book, and  as stated  by him, with an open mind and a  number of  times. He  has observed  "Moreover  expert knowledge has  nothing to do with such cases. Whether a book is obscene  or not  depends on  the interpretation of S. 292 I.P.C. and  not  on  expert  evidence".  The  learned  Chief Presidency Magistrate  has set  out in his judgment the gist of the  story  and  has  referred  to  various  aspects  and incidents at  length for considering whether the book can be said to  be obscene.  Dealing with  the  statement  made  on behalf of  the a.  used author, that the passages complained of are  not obscene and even if lt may be said that there is some amount  of indecency  in those  passages and  the words used therein  are vulgar, it has to be appreciated that they became necessary to put the scheme of the novel in its right perspective, the  learned Chief  Presidency  Magistrate  has observed:-           "It may  have exposed the hypocricy of the people,           exposed  the   politicians  who  live  on  others,           exposed the teachers who do not care to look after           the interests  of the  students, exposed  the  big           officers of  the workshops and factories and their           most ultra  modern wives  who do  not take care of           their children  No doubt,  such a  thing has  been           said and  such characters  have been depicted, but           to me  lt seems, it has 80 been depicted in a very           veiled way.  The character of Sukhen as offered to           be a  noble one,  has got  to  be  established  by           argument. So  also the character of Sikha. A plain           reading of  the novel  will no doubt raise pity in           The mind  of the readers for Sukhen and Sikha, but           that will not heighten the importance of the novel           in question.  As a  forceful writer, Shri Samaresh           Basu has  depicted those character in his own way,           but unfortunately  the purpose has been frustrated           by his  bringing  some  slang  and  unconventional           words and  for his  depiction  of  some  incidents           which cannot be tolerated in a society like ours. He further observed;-           "It was  said that Sukhen is a goonda and a street           boy having no sufficient education and culture. As           such in  the fitness  of things  those  words  and           incidents had to 31           be mentioned  like this  through his mouth. Sukhen           might be  of a  character of  that  type  but  the           writer ought  to be  a little  but  cautious.  The           writer must know that the story of Sukhen will not

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         remain written  and preserved  in  the  safe.  The           writer has  got his  duty onwards  his readers  as           well.  Their   writings  have   got  their  social           implications as  there is a right of the author to           give his  very best  free from  any restraint from           any quarter  and that  too fearlessly. So there is           his responsibility  to the society as well. As his           freedom is  great so must be the responsibility as           well. With that end in view the social control has           been imposed  on the  writers through  the help of           legislation. Accordingly,  I hold  that no  writer           should be  allowed to  take recourse  to vulgarism           under the pretence of writing some novel with some           social purpose." The Chief Presidency Magistrate ultimately held:-           "I find  that this book has got no literary merit,           nor educational or sociological value. An attempt,           however, was  made on behalf of the writer to show           that  the  novel  in  question  has  served  those           purposes, but  a simple  reading of  the same will           show that  it was  nothing  but  a  camouflage  to           introduce obscenity  in this  book  and  this  has           played prominent part. Under the pretence of doing           good to the society the novel in question has done           greater mischief."      On the  basis of  the findings  on his own appreciation and assessment  of the  novel on  the question of obscenity, the  learned   Chief  Presidency   Magistrate  came  to  the conclusion that the novel was obscene within the mischief of S. 292  I.P.C. and  the learned  Chief Presidency Magistrate imposed the  conviction  and  the  sentence  which  we  have earlier recorded.      The learned Single Judge of the High Court has affirmed the  view   expressed  by   the  learned   Chief  Presidency Magistrate that  the novel  in question is obscene and comes within the  mischief of  s. 292 I.P.C. It may be appropriate to note  some of the observations made by the learned Judge. He observed :-           "I have read the whole novel. It is remarkable for           many reasons,  more 80 because the author Samaresh           Basu who  is the Principal accused in this case is           a well 32           known writer  of contemporary  Bengali  literature           and has  published works  in the  past which  have           often been  in the  background of  that strata  of           society where  manual labour  is often  victim  of           exploitation   and    sweating,    resulting    in           continuation or  even  perpetuation  of  proverty,           illiteracy....In those  works  Samaresh  Basu  has           employed language  of his  hero in  the particular           literary work  as such  character would do in real           life. This  Sri Basu  has done  with  courage  and           deftness that  have not  only served  his  purpose           well in  those writings but also earned reputation           for him  as a remarkable Bengali writer of present           age. Both  the defence  witnesses have  spoken  of           that well known fact." The learned Judge has further observed :-           "It cannot  be questioned  that  the  problem  has           grown in  its bulk  because of  the complete break           down of  moral fibre of the society in general and           individual members  of the  society in particular,           and also  in the  family units  and that can by no           means be  denied also. The causes that have led to

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         the reasons  of the  problem need  to be carefully           discerned. To my mind it is also in the fitness of           things  that   thinkers  and  literatures  have  a           function to  deal with  the problem  by use of the           strength of  their pen  for giving  expression  to           their thoughts  and suggestions. Yet literature as           an art  is one  of certain technique and conscious           caution.  When   the  subject  is  virulent,  that           provides all  the more reason for subdued caution,           lest in  the  attempt  to  locate  the  virus  and           disclosure of  its causes,  the  treatment  itself           spreads the  poison to  contaminate many  more who           are yet  uncontaminated that is why the quality of           the writer  and quality  of the languages employed           by the writer is relevant. His purpose may be good           but his  language may betray his purpose and bring           about a  completely reverse  affect. Mere goodness           of   purpose,    therefore,   does    not    offer           justification for  employment of  bad language-bat           in  the  larger  sense  including  lascivious  and           vulgar. In  matter of  technical interest  and for           the  concern   of  technically   trained  minds  a           language may  be  not  only  inevitable  but  also           useful. But the same language when employed 33           as a  vehicle for  treatises which are not for the           technical  purpose  becomes  obscene  due  to  its           vulgarity.           By reading  this novel  printed in  Ex. 1  in  the           whole I  have come to the definite conclusion that           the author  Samaresh Basu  has  lapsed  into  that           fault in 80 far he appears to have intended it for           the purpose of getting a market for the journal in           which  it  has  been  printed  amongst  the  young           section   of   the   society.   Whether   he   has           unintentionally  lapsed  into  that  vulgarity  of           language as  the vehicle  of  expression  in  this           writing is irrelevant. What is relevant is that it           definitely tends  to, not  only tends  but  in  my           view, it does, deprave and corrupt persons who are           likely to  read, see  or hear the matter contained           in it."           The learned Judge held:           "I am  of the  view that successful description of           reality is  not a  good defence  against charge of           obscenity  in  literature  published  for  general           reader. Students of obstetrics read in the medical           treatise and  get  full  explanation  of  all  the           detail of  female anatomy  that helps in the cause           of science  Of medicine.  But such  description of           the female  anatomy offered  as literature for the           general public  with all  the  good  qualities  of           successful  realism   remains  obscene  punishable           under S. 292 I.P.C. It can not be whittled down by           merely saying  it is  bad taste. By the law of our           country it  is a  crime. In the present case, I am           of the  view that  the episodes  and the use of so           much slang  are all  deliberately included, not to           serve any  purpose of  art of  literary value, but           only  for   getting   the   seller’s   market   of           pornography. Pornography  it is  and with  all the           gross taste  not because it has sacrificed the art           of restraint in the description of female body and           also because  in some  part  it  has  indulged  in           complete description  of sexual act of a male with

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         a female and also of Lower animal."      The  learned  Judge  on  the  basis  of  his  aforesaid findings and  other reasons  stated in the judgment affirmed the view of the learned Chief Presidency Magistrate that the novel in  question was  obscene and the learned Judge passed an  order   which  we  have  earlier  noted,  upholding  the conviction and sentence, while discharging the Rule. 34      The correctness of the decision holding the novel to be obscene is the subject matter of challenge in this appeal by special leave before us.      Mr. Sanghi,  learned Counsel appearing on behalf of the appellants, has  contended that neither the novel as a whole nor any  part thereof can be considered to be obscene within the meaning  of S.  292 I.P.C.  It is his contention that in various portions  of the  novel and in particular the marked portions which  were  considered  by  the  Chief  Presidency Magistrate and  also the  High Court,  various  slang  words might have  been used  and the  description of the incidents including the  description of  various parts  of female body may be  verging on  vulgarity and  may offend  sophisticated minds, but  the same  cannot be considered to be obscene, as the  same   cannot  have   any  tendency  of  depraving  and corrupting the minds of persons whose minds are open to such immoral influences  and the  same cannot also suggest to the minds of  the young  people of  either sex  or to persons of more advanced  years thoughts  of any  impure and libidinous character. Mr.  Sanghi has  submitted that the novel depicts the feelings,  thoughts, actions  and the life of Sukhen who is the  hero of  the novel  and is  its main  character; and through the  speeches, thoughts  and actions  of Sukhen  the novel seeks to condemn and criticise various aspects of life in society  now prevailing  in its various strata. It is his submission that  slang words  and almost vulgar language had to be  used in  keeping with the character of Sukhen who was accustomed to  the use of only such language. He argues that if different  kinds of  words, cultured  and  sophisticated, were to  be used  in the  thoughts, speeches  and actions of Sukhen, the  entire portrayal  of Sukhen’s  character  would become unreal  and meaningless. It is his argument that true art and  literature require  that the character sought to be portrayed must  be so  depicted  as  to  make  it  real  and artistic; and,  if for  achieving that  purpose the language which the  kind of person sought to be portrayed indulges in is put  into his  mouth it  does  not  become  obscene.  The contention of  Mr. Sanghi  is that  persons brought  up in a particular atmosphere  or belonging to a particular class of society choose  to use  particular types  of words  to which they are  accustomed and  if any  author has  to portray the life of  any person  belonging to  any such  strata  of  the society or  brought up  in that  particular environment, the author for  appropriately depicting  the character of such a person must  necessarily employ  as  a  matter  of  art  and literature the  words and  expressions that  such  a  person whose character  is sought  to be  depicted uses. Mr. Sanghi has argued that in literature as also in life there is a 35 good deal  of distinction  between obscenity  and  vulgarity though   both may be offensive to any sophisticated mind. It is his  submission that  it is obscenity in literature which attracts the  provisions of  S. 292  I.P.C. Mr.  Sanghi  has argued that the word ’obscenity’ which is not defined in the Code has  come up for consideration in various cases and has been judicially interpreted by various courts including this Court. It  is his  argument that  this  book  has  a  social

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purpose to  serve and  has been written with the main object of  focussing   the  attention   of  persons  interested  in literature to  the various  ills  and  maladies  ailing  and destroying the  social  fabric  and  the  author  who  is  a powerful writer  has used his talents for achieving the said purpose; and  in this  connection Mr. Sanghi has referred to the evidence of Budhadev Bose and Dr.Naresh Chandra Guha. In support of  the submissions made, Mr. Sanghi has referred to decisions of this Court and other authorities.      Mr. Mukherjee, learned counsel appearing for the State, has  supported   the  judgment   of  the   Chief  Presidency Magistrate and  the High Court affirming the judgment of the Chief Presidency  Magistrate. Mr.  Mukherjee  has  submitted that the  novel has  to be  judged in  the background of the conditions prevailing  in the  society at  the time when the novel was  written. It  is his  submission that  the learned Chief Presidency  Magistrate and  the learned  Judge of  the High Court  have both  read the  novel carefully a number of times and  on their  own appreciation  of the  merits of the novel  they   have  both   come  to   the  conclusion  after considering all the submissions which were made on behalf of the accused persons that the novel in question was obscene.      Mr. Lalit,  learned  counsel,  appeared  as  an  Amicus curiae at  the request  of the  Court. When  the matter  had earlier been  called, nobody  had appeared  on behalf of the respondents which included the complainant and the State. At that time  the Court  had requested  Mr. Lalit to assist the Court. It appears that the matter had been adjourned and the counsel  for  the  State  had  appeared  thereafter  at  the subsequent hearing.  Nobody, however, had appeared on behalf of the  complainant at  the hearing of the appeal. Mr. Lalit has rendered useful assistance to the Court and he has aptly pointed out  with reference to authorities that the position in law  appears to be well-settled. He rightly contends that the real  question is  the proper  application of  the well- settled legal  principles to  the facts  of  any  particular case. Mr.  Lalit has drawn our attention to various passages complained of  as obscene  and noticed  in the judgments and has 36 fairly submitted  that it  will be  for this Court to decide finally on  a proper  appreciation of  the novel itself as a whole and  in parts whether the novel or any part thereof is obscene within  the meaning  of  S.  292  I.P.C.  The  Court expresses its  appreciation for  the assistance given by Mr. Lalit.      S. 292  I.P.C. as  it stood at the relevant time was in the following terms :-           "Whoever-           (a) sells,  lets to  hire,  distributes,  publicly           exhibits or  in any  manner puts into circulation,           or  for  purposes  of  sale,  hire,  distribution,           public exhibition  or circulation, makes, produces           or  has   in  his  possession  any  obscene  book,           pamphlet, paper, drawing, painting, representation           or figure  or any other obscene object whatsoever,           or           (b) imports, exports or conveys any obscene object           for any  of the  purposes aforesaid, or knowing or           having reason  to believe that such object will be           sold,  let   to  hire,   distributed  or  publicly           exhibited or  in any  manner put into circulation,           or           (c) takes  part in  or receives  profits from  any           business in  the course  of which  he knows or has

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         reason to  believe that  any such  obscene objects           are, for  any of  the  purposes  aforesaid,  made,           produced,  purchased,   kept,  imported  exported,           conveyed, publicly  exhibited or in any manner put           into circulation, or           (d)  advertises   or  makes  known  by  any  means           whatsoever that  any person is engaged or is ready           to engaged  or is ready to engage in any act which           is an offence under this section, or that any such           obscene object can be procured from or through any           persons, or           (e) offers  or attempts  to do any act which is an           offence under this section,           shall be  punished  with  imprisonment  of  either           description for  a term  which may extend to three           months or with fine, or with both. 37           Exception -  This section  does not  extend to any           book, pamphlet,  writing, drawing or painting kept           or used  bona fide  for religious  purposes or any           representation sculptured,  engraved,  painted  or           otherwise represented  on or  in any temple, or on           any car  used for the conveyance of idols, or kept           or used for any religious purpose.      This section  came to  be amended  in 1969 by Act 36 of 1969 and the amended Section reads as follows :-           "(1) For  the purposes of sub-section (2), a book,           pamphlet,  paper,   writing,  drawing,   painting,           representation, figure  or any  other object shall           be deemed  to be  obscene if  it is  lascivious of           appeals to the prurient interest or if its effect,           or (whether  it comprises  two  or  more  distinct           items) the  effect of any one of its items, is, if           taken as  a whole,  such as to tend to deprave and           corrupt persons  who are  likely, having regard to           all relevant  circumstances, to  read, see or hear           the matter contained or embodied in it.           (2) Whoever           (a) sells,  lets to  hire,  distributes,  publicly           exhibits, or  in any  manner puts into circulation           or  for  purposes  of  sale,  hire,  distribution,           public exhibition  or circulation,  makes produces           or  has   in  his  possession  any  obscene  book,           pamphlet, paper, drawing, painting, representation           or figures or any other obscene object whatsoever,           or           (b) imports, exports or conveys any obscene object           for any  of the  purposes aforesaid, or knowing or           having reason  to believe that such object will be           sold,  let   to  hire,   distributed  or  publicly           exhibited or  in any  manner put into circulation,           or           (c) takes  part in  or receives  profits from  any           business in  the course  of which  he knows or has           reason to  believe that  any such  obscene objects           are, for  any of  the  purposes  aforesaid,  made,           produced,  purchased,  kept,  imported,  exported,           conveyed, publicly  exhibited or in any manner put           into circulation, or 38           (d)  advertises   or  makes  known  by  any  means           whatsoever that  any person is engaged or is ready           to engage  in  any  such  obscene  object  can  be           procured from or through any person, or           (e) offers  or attempts  to do any act which is an

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         offence under this section.           shall  be   punished  on   first  conviction  with           imprisonment of  either  description  for  a  term           which may extend to two years, and with fine which           may extend  to two  thousand rupees,  and, in  the           event of  a second  or subsequent conviction, with           imprisonment of  either  description  for  a  term           which may extend to five years, and also with fine           which may extend to five thousand rupees-           Exception - This section does not extend to-           (a) any  book, pamphlet,  paper, writing, drawing,           painting, representation or figure-           (i) the  publication of  which  is  proved  to  be           justified as  being for  the public  good  on  the           ground that  such book,  pamphlet, paper, writing,           drawing, painting,  representation or figure is in           the  interest   of  science,  literature,  art  or           learning or other objects of general concern, or           (ii) which is kept or used bona fide for religious           purposes:           (b)  any   representation  sculptured,   engraved,           painted or otherwise represented on or in-           (i) any ancient monument within the meaning of the           Ancient Monuments  and  Archaeological  Sites  and           Remains Act, 1958 or           (ii) any  temple, or  on  any  car  used  for  the           conveyance of  idols, or  kept  or  used  for  any           religious purpose.      It may  be noticed  that the  amended Section  to which reference has  been made  by the  High Court in the judgment does not  appear  to  be  of  any  material  consequence  in deciding this 39 particular case. The amended provision seeks to clarify what may   be deemed  to be  obscene within  the meaning  of  the section, as  the word ’obscene’ appearing in the section has not been  defined in  the Section or in any provision in the Act. The  amended provision  embodies to  an extent  in  the section itself  the import,  effect and  meaning of the word obscene’ as  given by  courts on  interpretation of the word ’obscene’.      In  the   case  of   Ranjit  D.   Udeshi  v.  State  of Maharashtra, [1965] 1 S.C.R. 65 this Court had to decide the question of constitutional validity of S. 292 I.P.C. and had also to  interpret the  word  ’obscene’  used  in  the  said Section. This  Court upheld  the constitutional  validity of the Section and the question of validity of the said section is,  therefore,  no  longer  open  and  has  not  been  very appropriately  challenged   in  the  present  case.  On  the question of  interpretation of  the word ’obscene’ in S. 292 I.P.C. this Court observed at pp. 73-74 :-           "We shall  now consider  what is meant by the word           ’obscene’ in 8. 292, Indian Penal Code.           The Indian  Penal Code  borrowed the word from the           English Statute.  As the  word ’obscene’  has been           interpreted by  English Courts  something  may  be           said of  that interpretation first. The Common law           offence of  obscenity was  established in  England           three hundred  years ago  when Sir  Charles Sedley           exposed his  person to  the  public  gaze  on  the           balcony of  a tavern. Obscenity in books, however,           was punishable  only before  the spiritual  courts           because it  was 80 held down to 1708 in which year           Queen v.  Read, 11  Mod. 205 Q.B., was decided. In           1717 in the case against one Curl it was ruled for

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         the first time that it was a common Law Offence (2           Stra. 789  K.B.) In 1857 Lord Campbell enacted the           first legislative  measure against  obscene  books           etc. and  his successor  in the  office  of  Chief           Justice interpreted  his statute (20 & 21 Vict. C.           83) in  Hicklin’s case,  (1868) L.R.  3 Q.B.  360,           case. The section of the English Act is long (they           were 80  in those  days), but  it  used  the  word           ’obscene’ and  provided for  search,  seizure  and           destruction of  obscene books  etc. and made their           sale, possession  for sale,  distribution  etc.  a           misdemeanour. The  section may thus be regarded as           substantially in  pari materia  with S. 292 Indian           Penal Code, in spite of some 40           difference in  language.  In  Hicklin’s  case  the           Queen’s  Bench  was  called  upon  to  consider  a           pamphlet, the nature of which can be gathered from           the  title   and  the  colophon  which  read:  The           Confession  Unmasked,  showing  the  depravity  of           Romish   Priesthood,    the   iniquity    of   the           confessional and  the questions  put to females in           confession.  It   was  bilingual  with  Latin  and           English texts  on opposite  pages and  the  latter           half of  the pamphlet  according to the report was           ’grossly’  obscene;  as  relating  to  impure  and           filthy acts  words or  ideas’. Cockburn, C.J. laid           down the test of obscenity 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 a  publication of  this sort may           fall.... 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, thoughts of a           most impure and libidinous character’.      This test has been uniformly applied in India."      This Court further observed at p. 75 :-           "It may  be admitted  that the world has certainly           moved far  away from  the times  when Pamela, Moll           Flanders, Mrs.  Warren’s Profession, and even Mill           on the  Floss were  considered immodest. Today all           these and  authors from  Aristophanes to  Zola are           widely read and in most of them one hardly notices           obscenity. If our attitude to are versus obscenity           had not  undergone a  radical change,  books  like           Caldwell’s God’s  Little Acre and Andhre Gide’s If           It Die  would not  have survived  the strict test.           The English Novel has come out of the drawing room           and it  is a  far cry  from the  days when  Thomas           Hardy described the seduction of Tests by speaking           of her  guardian angels.  Thomas Hardy himself put           in his  last two  novels  situations  which  ’were           strongly disapproved  of under  the conventions of           the age’,  but they  were extremely  mild compared           with  books  today.  The  world  is  now  able  to           tolerate much  nore than  formerly, having  become           indurated by  literature of  different sorts.  The           attitude is not yet settled. 41           Curiously,  varying   results  are  noticeable  in           respect of  the same book and in the United States           the same  book is  held to be obscene in one State           but not  in another  (See A suggested solution] to

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         the Riddle  of Obscenity) (1964) 112 Penn. L. Rev.           834.           But even  if  we  agree  thus  far,  the  question           remains still  whether the  Hicklin test  is to be           discarded. We  do not  think  that  it  should  be           discarded.  It   makes  the  court  the  judge  of           obscenity in relation to an impugned book etc. and           lays emphasis  on the  potentially of the impugned           object  to   deprave  and   corrupt   by   immoral           influences. It  will always  remain a  question to           decide in  each case  and it  does not  compel  an           adverse decision in all cases." This Court held at pp. 76-77:-           "The  Court   must,  therefore,  apply  itself  to           consider each  work at a time. This should not, of           course, be  done in  the spirit  of the  lady  who           charged Dr. Johnson with putting improper words in           his Dictionary and was rebuked by him: ’Madam, you           must have been looking for them’. To adopt such an           attitude towards art and literature would make the           courts a  board of censors. 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 80 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           books is  likely to  fall. In  this connection the           interests  of   our   contemporary   society   and           particularly the  influence of the book etc. On it           must not be overlooked. A number of considerations           may here  enter  which  it  is  not  necessary  to           enumerate, but  we must  draw our attention to one           fact. Today  our national  and regional  languages           are  strengthening   themselves  by  new  literary           standards  after  a  deadening  period  under  the           impact of  English. Emulation by our writers of an           obscene book  under  the  aegis  of  this  Court’s           determination is  likely  to  pervert  our  entire           literature because  obscenity pays  and  true  art           finds little  popular support.  Only an obscurrent           will deny the need for such caution. This 42           consideration marches  with all  law and precedent           on this  subject and so considered we can only say           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  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 away.           We may  now refer  to Roth’s  354 U.S. 476 case to           which a  reference  has  been  made.  Mr.  Justice

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         Brennan, who  delivered the  majority  opinion  in           that case  observed that  if obscenity  is  to  be           judged of  by the effect of an isolated passage or           two  upon  particularly  susceptible  persons,  it           might   well   encompass   material   legitimately           treating  with  sex  and  might  become  -  unduly           restrictive and  so the  offending  book  must  be           considered in  its entirety.  Chief Justice Warren           on the  other hand  made ’substantial’ tendency to           corrupt by  arousing lustful desires’ as the test.           Mr. Justice  Harian regarded as the test that must           ’tend  to   sexually  impure   thoughts’.  In  our           opinion, the  test to adopt in our country (regard           being  had   to  our   community  mores)  is  that           obscenity without  a preponderating social purpose           or   profit   cannot   have   the   constitutional           protection of  free  speech  and  expression,  and           obscenity  is   treating  with  sex  in  a  manner           appealing to  the carnal  side of human nature, or           having that  tendency. Such a treating with sex is           offensive to modesty and decency but the extent of           such appeal  in a particular book etc. are matters           for consideration in each individual case."      In holding  the book  Lady Chaterlay’s  Lover which had come up  for consideration  before this  Court to be obscene this Court held at p. 81:- 43           "There is  no loss  to  society  if  there  was  a           message in  the book. The divagations with sex are           not a  legitimate embroidery but they are the only           attractions to  the common  man.  When  everything           said in  its favour  we find that in treating with           sex the  impugned portion  viewed  separately  and           also in  the setting  of the  whole book  pass the           permissible limits  judged of  from our  community           standards and  as there  is no  social gain  to us           which can  be said  to preponderate,  we must hold           the book  to satisfy  the test  we have  indicated           above."      The question  of obscenity of a book within the meaning of S.  292 I.P.C.  again fell  for consideration before this Court in  the Case of Chandrakant Kalyandas Kakodar v. State of Maharashtra, [1970] 2 S.C.R. 80. In this case a complaint had been  filed against  the appellant  who was an author of short-story entitled Shama which came to be published in the year 1962 Diwali Issue of Rambha, a monthly magazine. On the basis of  the complaint  criminal proceedings  been  started under S.  292 I.P.C.  but the  Magistrate dealing  with  the complaint  acquitted   the  accused   of  the   charge.  The complainant  and   the  State  filet  appeals  against  this judgement of  acquittal by  the Magistrate.  The High Court, however, held  the accused  to be  guilty of  the charge ant imposed in  convicting  the  accused  a  fine.  Against  the judgement of the High Court, an appeal hat been preferred to this Court.  While dealing  with the  question of  obscenity within the meaning of S. 292 I.P.C. this Court relied on the earlier decision  in Ranjit  D. Udeshi’s  case  (supra)  and referred to  various observations  made therein.  This Court observed at p. 82 :-           "It  is  apparent  that  the  question  whether  a           particular Article  or story or book is obscene or           not toes  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.

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         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  ant  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 44           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."      This is  Court held  that the  book in question was not obscene within the meaning of S. 292 I.P.C.. ant observed at p. 87:-           "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           condemn the  conduct of  the erring party as wrong           as 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 pornography nor has the author indulged           in a  description of  the  sex  act  or  used  any           language which  can be classed as vulgar. Whatever           has been  done in  a restrained  manner though  in           some places there may 45           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   $8   depraving   or           lascivious.  To  the  literate  public  there  are           available both  to the  adults and the adolescents

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         innumerable books  which contain reference 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 instil 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           place 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  for the  writer to see           that the adolescent ought not to be D 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  expressions  to  their  ideas,           emotions and  objectives with  full freedom except           that it  should not  fall within the definition of           ’obscene’  having   regard  to  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  Udesh’s 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 46           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.      These two  decisions of  this Court  lay down the legal principles to  be  observed  in  deciding  the  question  of obscenity within  the meaning  of S. 292 I.P.C. As these two decisions  of   this  Court   settle  the  legal  principles involved, it  does not  really become  necessary to refer to the other  authorities cited from Bar. We may, however, note that the  novel Lady  Chatterleys Lover  which  came  to  be condemned as  obscene by  this Court  was  held  to  be  not obscene in England by Central Criminal Court. In England the question of  obscenity is  left to  the Jury  and  the  Jury decides whether  the book  in question is obscene or not. It is of  interest to  note the  summing up  of Byrne,  J., the learned Judge  who presided  over the Central Criminal Court which was  deciding the  question of  obscenity of the novel Lady Chatterley’s Lover. m e summing up by the learned Judge in the  case of  B. v.  Penguine Books  Ltd., as reported in Criminal Law Review 1961 may be reproduced.

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         "In summing  up his  lordship instructed  the Jury           that: They  must consider the book as a whole, not           selecting passages  here and  there  and,  keeping           their feet on the ground, not exercising questions           of taste  or the  functions of a censor. The first           question, after  publication  was:  was  the  book           obscene? Was  its effect taken as a whole to stand           to deprave  and corrupt  persons who  were likely,           having regard  to all  the circumstances,  to read           it? To  deprave meant  to  make  morally  bad,  to           prevent, to  debase or corrupt morally. To corrupt           meant to  render morally  unsound  or  rotten,  to           destroy the  moral purity  or chastity, to pervert           or ruin  a good  quality, to debase, to defile. No           intent to  deprave or  corrupt was  necessary.  me           mere fact  that the  jury  might  be  shocked  and           disgusted  by   the  book   would  not  solve  the           question.  Authors   had  a   right   to   express           themselves but people with strong views were still           members of  the community  and under an obligation           to others  not to harm them morally, physically or           spiritually. m  e jury  as men  and women  of  the           world, not  prudish but with liberal minds, should           ask themselves  was the  tendency of  the book  to           deprave and  corrupt those  likely to read it, not           only 47           those  reading  under  guidance  in  the  rarefied           atmosphere of  some educational  institution,  but           also those  who  could  buy  the  book  for  three           shillings and  six pence or get it from the public           library,  possibly   without  any   knowledge   of           Lawrence and  with little knowledge of literature.           If the jury were satisfied beyond reasonable doubt           that the book was obscene, they must then consider           the question  of its  being justified  for  public           good in  the interest  of science, literature, art           or learning  or other subjects of general concern.           Literary merits  were not  sufficient to  save the           book, it must be justified as being for the public           good. The  book was not to be judged by comparison           with other  books. If  it was  obscene then if the           defendant had established the probability that the           merits of  the book  as a  novel were so high that           they  outbalanced   the  obscenity   80  that  the           publication was  the public  good, the jury should           acquit."      In England, as we have earlier noticed, the decision on the question  of obscenity  rests with  the jury  who on the basis of  the summing  up of  the legal principles governing such  action  by  the  learned  Judge  decides  whether  any particular novel,  story or  writing is  obscene or  not. In India, however,  the responsibility  of the  decision  rests essentially on the Court. As laid down in both the decisions of this  Court earlier  referred to,  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 I.P.C.  In deciding  the question  of obscenity  of  any book, story  or article the Court whose responsibility it is to adjudge  the question  may, if  the  Court  considers  it necessary, rely  to an  extent  on  evidence  and  views  of leading  literary  personage,  if  available,  for  its  own appreciation and  assessment and for satisfaction of its own

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conscience. The decision of the Court must necessarily be on an objective assessment of the book or story or article as a whole  and   with  particular   reference  to   the  passage complained of  in the book, story or article. The Court must take an  overall view of the matter complained of as obscene in the  setting of the whole work, but the matter charged as obscene must  also be considered by itself and separately to find out  whether it  is  so  gross  and  its  obscenity  so pronounced that  it is  likely to  deprave and corrupt those whose minds are open to 48 influence of  this sort  and into  whose hands  the book  is likely to  fall. Though the Court must consider the question objectively  with  an  open  mind,  yet  in  the  matter  of objective assessment  the subjective  attitude of  the Judge hearing the  matter is  likely  to  influence,  even  though unconsciously, his  mind and his decision on the question. A Judge with a puritan and prudish outlook may on the basis of an objective  assessment of  any book  or story  or article, consider the same to be obscene. It is possible that another Judge with  a different kind of outlook may not consider the same book  to be  obscene on his objective assessment of the very same  book. The  concept of  obscenity is  moulded to a very great  extent by  the social  outlook of the people who are generally  expected to  read  the  book.  It  is  beyond dispute that  the concept  of obscenity usually differs from country to country depending on the standards of morality of contemporary society in different countries- In our opinion, in judging the question of obscenity, the Judge in the first place should  try to  place himself  in the  position of the author and  from the  view point  of the  author  the  judge should try to understand what is it that the author seeks to convey and  whether what the author conveys has any literary and  artistic  value.  The  Judge  should  thereafter  place himself in  the position  of a  reader of every age group in whose hands  the book  is likely  to fall  and should try to appreciate what  kind of  possible  influence  the  book  is likely to  have in  the minds of the readers. A Judge should thereafter apply his judicial mind dispassionately to decide whether the  book in  question can  be said  to  be  obscene within  the  meaning  of  S.  292  I.P.C.  by  an  objective assessment of  the book  as a whole and also of the passages complained of  as obscene  separately. In appropriate cases, the  Court,   for  eliminating  any  subjective  element  or personal preference  which may  remain hidden  in  the  sub- conscious  mind   and  may  unconsciously  affect  a  proper objective assessment,  may draw  upon the evidence on record and  also   consider  the  views  expressed  by  reputed  or recognised authors  of literature on such questions if there be any  for his own consideration and satisfaction to enable the  Court   to  discharge  the  duty  of  making  a  proper assessment.      In the light of the above discussions we now proceed to consider whether the novel in question is obscene or not.      The novel  centres round  one Sukhen  who can be called the hero in this book and who figures as the main character. The novel  seeks  to  express  the  feelings,  thoughts  and actions of  Sukhen and  to portray  his character.  This the author seeks to do 49 through Sukhen  himself who  narrates his  own  experiences, feelings, thoughts  and actions  in his  own  words.  It  is Sukhen who mainly tells the readers his own story in his own words.      Sukhen is  the youngest son of his parents. The picture

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of his family life is, indeed, in the nature of a reflection of what  is commonly  now found in very many families in the society. Sukhen’s  father holds  a good  job  and  the  only interest he  has in  life is  to make money. He takes bribes from every source and he manages to see that bribes are paid to him.  Office,  money  and  bribes  are  the  only  things Sukhen’s father  appears  to  be  concerned  with.  Sukhen’s mother who  is painted  as a  delicate and  beautiful  woman mixed with  his father’s  friends freely  and also would not hesitate to  bestow favours on them. Sukhen, it appears, was fond of  his mother  and his mother was also fond of Sukhen. Unfortunately, Sukhen’s mother died very earlier when Sukhen was only  a child.  Sukhen had  two elder  brothers. Both of them are  painted as  men of  affairs and  men of the world. They belonged  to different  political parties on which each of them  had gained sufficient hold and they exploited their position in  the political  parties for their personal ends. They do  not practise  what they preach and they have both a good deal  of weakness  for drinks  and women. Sukhen indeed developed a hatred for the two brothers for their hypocracy. Though Sukhen  had a  soft corner  for his  father,  he  had neither great  love nor  respect for  him and he would often accuse him for bringing him into the world. m ere was an old servant in  the family  who used  a look after Sukhen and it appears that  Sukhen had  some affection for him. Brought up in such  an atmosphere  at the  house bereft of any love and affection and  proper guidance, Sukhen gradually slided into slimy life.  He with  other students  participated in a fast which was  organised by the students of the College in which he was  studying as  a protest  against some high-handed and arbitrary action  of the  college authorities  and  had,  in fact, come  into lime-light,  as the  fast had  succeeded in achieving the object for which fast was undertaken after the fast had  lasted for five days. While he was on fast he came in close  contact with  a girl  called  Shikha,  who  was  a college student  and who  appears to  be the other important personality in  the novel.  Sukhen developed  a weakness for Sikha. me fast undertaken by Sukhen and his association with Sikha in  the initial  stage did  not bring about any marked change in  his character. He had started leading the life of a desperate  youngman who  was considered  to be  a  Goonda, dreaded by  the community,  particularly the richer section. Sukhen got  addicted to  wine and  women.  Sikha  with  whom Sukhen has come in contact 50 developed a  living for  Sukhen inspite  of the kind of life Sukhen led.  The recklessness  on the  part of  Sukhen,  his boldness, his  hatred for  hypocrites, political leaders who thrive on  others and  frank and  candid criticism of social evils appear  to have  attracted Shikha  to Sukhen.  Various incidents are  narrated mostly  in Sukhen’s  words to depict various traits  of Sukhen’s character. As already indicated, Sukhen had hatred for hypocrites and false political leaders who participated in politics for their own personal ends. He had also  hatred for  teachers who  seek to keep hold on the student community  for serving  their own  ends by  creating rift amongst  the students  and by  completely ignoring  the interests of  the student  community,  for  businessmen  and business executives who exploit the workers, for parents who do not  have any  scruples in  making money, remain obsessed with making money and do mot take care of their children and for those  people who  under the  guise of gentlemen seek to satisfy their lust and do not spare even young girls. Sukhen had a  restless mind  and he would often feel that there was something missing  in his life and would often suffer from a

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peculiar feeling  when left  alone, though in society he was dreaded and  regarded as  a goonda.  It appears  that  as  a result of  his association  with Shikha,  and the closer and more intimate  the association  became, a kind of change was coming over.  The  feeling  of  restlessness  was  gradually passing away  and he  was finding peace and seeing some kind of meaning  in life. Shikha’s association brought some peace and solace  to his  restless life. Shikha kindled in him the human feelings  which had remained dormant in him and had in fact been  perverted. Because of his association with Shikha and Shikha’s  love for  him, Sukhen  was about to change his ways of  life to  lead a meaningful and useful life. As this change was gradually coming over the Sukhen he fell a victim of the  violence of rival political parties and he succumbed to the  injuries inflicted on him by rival political groups. This in substance is the story.      We shall  now refer  at some  length  to  some  of  the portions of  the book  challenged as obscene and 80 found by the courts below.      The story begins with the scene showing that Sukhen was trying to  catch a  beautiful butterfly  moving about in the room where Shikha was lying on the bed. His attempt to catch the butterfly  initially failed  and Sukhen used a long pole to push  down the butterfly which was resting in the wall at a height  beyond his  reach. Shikha  protested, apprehending that the  butterfly would  be hurt.  In his attempt to catch the butterfly, 51 Sukhen did  hurt the  butterfly which  fell down with one of the wings  severed. Shikha takes the butterfly in one of her palms with  her face  and body turned against Sukhen towards the wall  Seeing Shikha  in that position with the butterfly on her palm and Shikha trying to fix the severed wing in its place in  the body  of the  butterfly, Sukhen is reminded of what happened  to Zina, a daughter of one of the officers of the factory at the picnic party of the factory owner and its big executives.  Sukhen remembers  how at that party Zina, a girl of  about 14  years of  age was  being fondled  by  the elderly persons  holding high  posts in the factory and whom Zina would call ’Kaku’ (Uncle). Sukhen also recalls that how he thereafter  had taken  Zina away  from those persons to a surgarcane field and had an affair with her there. This part of the  affair with  Zina in  the sugarcane  field had  been considered to  be obscene.  Sukhen feels  that the butterfly resting in  the  palms  of  Shikha  resembled  Zina  in  the sugarcane  field   while  she  was  there  with  him.  After remembering this  incident Sukhen  turns to  Shikha and goes near her.  There he  notices Shikha’s  dress  and  he  finds Shikha had only a loose blouse with nothing underneath and a good part  of  her  body  was  visible  and  there  is  some description by  Sukhen  of  what  was  visible  and  of  his feelings on seeing Shikha in that position. Sukhen’s kissing Shikha and  going to  bed with Manjari, his friend’s sister, are other  parts of the book considered obscene. The affairs of Sukhen’s  ’Mejda’ (second  elder brother)  with the maid- servant’s daughter and Sukhen’s description of the same have also been hold to be obscene.      We have  read with  great care.  It is to be remembered that Sarodiya  Desh is a very popular journal and is read by a large  number of Bengalies of both sexes and almost of all ages all  over India.  This book is read by teenagers, young boys, adolescents,  grown-up youngmen and elderly people. We are not  satisfied on  reading the  book that  it  could  be considered to  be obscene. Reference to kissing, description of the  body and the figures of the female characters in the

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book and  suggestions of  acts of  sex by themselves may not have the  effect of  depraving, debasing and encouraging the readers of  any age to lasciviousness and the novel on these counts, may not be considered to be obscene. It is true that slang and various unconventional words have been used in the book. Though  there is  no description  of any  overt act of sex, there can be no doubt that there are suggestions of sex acts and  that a great deal of emphasis on the aspect of sex in the  lives of  persons in  various spheres of society and amongst various  classes of  people, is  to be  found in the novel. Because 52 of the  language used,  the episodes in relation to sex life narrated in  the novel,  appear  vulgar  and  may  create  a feeling of  disgust and  revulsion. The  mere fact  that the various affairs  and episodes with emphasis on sex have been narrated in slang and vulgar language may shock a reader who may feel disgusted by the book does mot resolve the question of obscenity.  It has  to be  remembered that the author has chosen to  use such kind of words and language in expressing the feelings,  thoughts and  actions of  Sukhen as  men like Sukhen could  indulge in  to make the whole thing realistic. It appears  that the  vulgar and  slang language  used  have greatly influenced  the decision  of  the  Chief  Presidency Magistrate and  also of the learned Judge of the High Court. The observations  made by  them and  recorded earlier  go to indicate that  in their  thinking there  has  been  kind  of confusion between  vulgarity and obscenity. A vulgar writing is mot  necessarily obscene.  Vulgarity arouses a feeling of disgust and revulsion and also boredom but does mot have the effect of  depraving, debasing  and corrupting the morals of any reader  of the novel, whereas obscenity has the tendency to deprave  and corrupt  those whose  minds are open to such immoral influences.  We may  observe  that  characters  like Sukhen, Shikha,  the father  and the brothers of Sukhen, the business executives and others portrayed in the book are not just figments  of the  author’s imagination. Such characters are often to be seen in real life in the society. The author who is a powerful writer has used his skill in focussing the attention of  the readers  on such characters in society and to describe  the  situation  more  aloquently  he  has  used unconventional and  slang words  80 that in the light of the author’s understanding, the appropriate emphasis is there on the problems.  If we  place ourselves in the position of the author and  judge the  novel from his point of view, we find that the  author intends  to expose  various evils  and ills pervading the  society and  to pose with particular emphasis the problems  which ail  and afflict  the society in various spheres. He  has used his own technique, skill and choice of words which  may in  his opinion, serve properly the purpose of the  novel. If  we place  our selves  in the  position of readers, who  are likely  to read this book, and we must not forget that  in this class of readers there will probably be readers of  both sexes and of all ages between teenagers and the aged,  we feel that the readers as a class will read the book with  a sense of shock, and disgust and we do not think that any  reader on reading this book would become depraved, debased  and  encouraged  to  lasciviousness.  It  is  quite possible that  they come  across such  characters  and  such situations in  life and  have faced them or may have to face them in life. On a very anxious consideration 53 and after  carefully applying our judicial mind in making an A objective  assessment of the novel we do not think that it can be  said with  any assurance  that the  novel is obscene

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merely because slang and unconventional words have been used in the  book in  which there  have been  emphasis on sex and description of female bodies and there are the narrations of feelings, thoughts  and actions  in  vulgar  language.  Some portions of  the book may appear to be vulgar and readers of cultured and  refined taste  may feel shocked and disgusted. Equally in  some portions,  the words  used and  description given may  not appear  to be in proper taste. In some places there may have been an exhibition of bad taste leaving it to the readers of experience and maturity to draw the necessary inference but  certainly not sufficient to bring home to the adolescents any suggestion which is depraving or lascivious. We have  to bear  in mind  that the  author has written this novel which  came to  be published  in the Sarodiya Desh for all classes of readers and it cannot be right to insist that the standard should always be for the writer to see that the adolescent may  not be  brought into  contact with sex. If a reference to  sex by itself in any novel is considered to be obscene and  not fit  to be read by adolescents, adolescents will not be in a position to read any novel and will have to read books  which are  purely religious . We are, therefore, of  the   opinion  that  the  Courts  below  went  wrong  in considering this novel to be obscene. We may observe that as on our  own appreciation  of the  novel, we  are inclined to take a  view different  from the  view taken  by the  Courts below, we  have taken  the benefit  of also  considering the evidence given  in this case by two eminent personalities in the literary field for proper appreciation and assessment by us. It  has already  been held  by this Court in two earlier decisions which  we have  already noted  that  the  question whether a  particular book  is  obscene  or  not,  does  not altogether depend on oral evidence because it is duty of the Court to  ascertain whether  the book offends the provisions of S.  292 I.P.C.  but 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  book is  in a language with which the court is not conversant .  It is  indeed a  matter of satisfaction for us that the  views expressed in course of their evidence by the two eminent persons in the literary field are in accord with the views taken by us.      We must, therefore, allow this appeal. We set aside the judgment of the Courts below and the conviction recorded and 54 sentenced  imposed   on  the   appellants.  We   acquit  the appellants of  the charges  framed against  them and we hold that the  novel is  not obscene  and does  not offend S. 292 I.P.C. We  direct that  the fine, if paid by the appellants, shall be refunded to them. We make no order as to costs. S.R.                                         Appeal allowed. 55