PETITIONER:
CHANDRAKANT KALYANDAS KAKODAR
Vs.
RESPONDENT:
THE STATE OF MAHARASHTRA AND ORS.
DATE OF JUDGMENT:
25/08/1969
BENCH:
REDDY, P. JAGANMOHAN
BENCH:
REDDY, P. JAGANMOHAN
SIKRI, S.M.
MITTER, G.K.
CITATION:
1970 AIR 1390 1970 SCR (2) 80
1969 SCC (2) 687
CITATOR INFO :
R 1986 SC 967 (25)
ACT:
Obscenity-Tests for determining-Penal Code Sec. 292.
HEADNOTE:
The appellant, the author of a short story and the printer
and publisher of the story were convicted under section 292
I.P.C. on a charge of obscenity. Setting aside the
conviction this Court,
HELD: It is the duty of the Court to consider the
article, story or book by taking an overall view of the
entire work and to determine whether the obscene passages
are so likely to deprave and corrupt those whose minds are
open to such influences and in whose hands the book is
likely to fall; and in doing so the influence of the book on
the social morality of our contemporary society cannot be
overlooked. Even so as the question of obscenity may have
to be judged in the light of the claim that the work has a
predominant literary merit, it may be necessary if it is at
all required, to rely to a certain extent on the evidence
and views of leading litterateurs on that aspect. [82 D; 83
E--G]
To insist that the standard would always be for the
writer to see that the adolescent ought not to be brought
into contact with sex or that if they read any references to
sex in what is written, whether that is the dominant theme
or not, they would be affected, would be to require the
authors to write books only for the adolescent and not for
the adults What has to be seen is that whether a class, not
an isolated case, into whose hands the book, article or
story falls suffer in their moral outlook or become depraved
by reading it or might have impure or lecherous thoughts
aroused in their minds. The charge of obscenity must,
therefore, be judged from this aspect. [88 D, G--H]
Ranjit D'. Udeshi v. State of Maharashtra [1965] 1 S.C.R.,
65 followed.
Applying the above tests the story read as a whole did
not amount to its being pornography nor did it pander to the
prurient interest. [87 A--B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 170 of
1967.
Appeal by special leave from the judgment and order
dated October 25, 1966 of the Bombay High Court in Criminal
Appeal No. 805 of 1965.
S.S. Kavalekar, K. Rajendra Chaudhuri and K.R.
Chaudhuri, for the appellant.
H.R. Khanna, B.D. Sharma and S.P. Nayar, for respondent
No.1.
The Judgment of the Court was delivered by
P. Jaganmohan Reddy, J. This appeal is by special
leave directed against the judgment of the Bombay High
Court.
81
The appellant is the author of a short story entitled
Shama published in the 1962 Diwali Issue of Rambha, a
monthly Marathi Magazine, which story is said to be obscene.
Criminal proceedings were, therefore, initiated before the
first class Magistrate, Poona by the complainant Bhide
under s. 292 I.P.C. against the Printer and Publisher
accused 1, the writer of the story accused 2 and the selling
agent accused 3. The complainant stated that he had read
the aforesaid Diwali issue of Rambha and found many
articles and pictures in it to be obscene which are
calculated to corrupt and deprave the minds of the readers
in general and the young readers in particular. The
Complainant further relented to several other articles in
the same issue such as the story of Savitri and certain
cartoons but we are not now concerned with these because
both the Magistrate as well the High Court did not think
that they offended the provisions of s. 292 I.P.C. the
magistrate after an exhaustive consideration did not find
the accused guilty of the offence with which they were
charged and, therefore, acquitted them. The complainant and
the State filed appeals against this judgment of acquittal.
Before the High Court it was conceded that there was no
evidence that accused No. 3 had sold any copies of the
issues of Rambha and accordingly the order of acquittal in
his favour was confirmed. In so far as the other two
accused are concerned it reversed the order of acquittal and
convicted the printer and publisher accused 1 and the writer
accused 2 under s. 292 I.P.C. but taking into consideration
the degree of obscenity in the passages complained of a fine
Rs. 25/- only was imposed on each of the accused and in
default they were directed to suffer simple imprisonment for
a week. It was also directed that copies of the magazine
Rambha in which the offending story was published and which
may be in possession and power of the two accused be
destroyed.
The allegation, against the accused is that certain
passages in the story of Shama at pp. 111-112, 114, 116,
118-121, 127, 128, 131, and 134 are said to be obscene. In
support of this the complainant examined himself and led
the evidence of Dr. P.G. Sahstrabudhe and Dr. G.V. Purohit
in support of his allegation that the novel is obscene and
that the writer and publisher contravened the provisions of
s. 292 I.P.C. Accused No. 1 stated that the story of Shama
was written by an ;able writer which depicted the
frustration in the life of a poet and denied that it was
obscene. The writer Kakodar, accused No. 2 claims to have
written about 60 such stories. which are published in
different periodicals by reputed publishers. He also denies
that Shama is obscene and states that he has introduced
certain characters in order to condemn the worst and glorify
the best and it was never his intention to titillate the
sex feelings of the
82
readers, but on the other hand his attempt was to achieve
the literary and artistic standard which was in keeping
with the style of some of the able and successful writers of
Marathi literature. In support of his defence, he examined
Shri Keluskar and Prof. Madho Manohar D.Ws. 1 and 2
respectively. The Court on its own summoned and examined
Prof. N.S. Phadke and Acharya P.K. Atre. Both the
magistrate as well as the learned Judge of the High Court
were conversant with Marathi and they seem to have read the
story of Shama in the original, an advantage which we have
not got. However, on a consideration of the offending
passages in the story to which we shall refer presently,
they came to different and opposite conclusions.
It is apparent that the question whether a particular
article or story or book is obscene or not does not
altogether depend on oral evidence because it is the duty of
the court to ascertain whether the book or story or any
passage or passages therein offend the provisions of s.
292. Even so as the question of obscenity may have to be
judged in the light of the claim that the work has a
predominant literary merit, it may be necessary if it is at
all required, to rely to a certain extent on the evidence
and views of leading litterateurs on that aspect
particularly when the work is in a language with which the
Court is not conversant. Often a translation may not bring
out the delicate nuances of the literary art in the story as
it does in the language in which it is written and in those
circumstances what is said about its literary quality and
worth by persons competent to speak may be of value, though
as was said in an earlier decision, the verdict as to
whether the book or article or story considered as a whole
panders to the prurient and is obscene must be judged by the
courts and ultimately by this Court.
What is obscenity has not been defined either in s. 292
IPC or in any of the statutes prohibiting and penalising
mailing, importing, exporting, publishing and selling of
obscene matters. The test that has been generally applied
in this country was that laid down by Cockburn, C.J. in
Hicklin’s case(1) and even after the inauguration of the
Constitution and considered in relation to the fundamental
right of freedom of speech and expression this test, it has
been held, should not be discarded. In Hicklin’s case(1)
while construing statutes 20 and 21 Victoria, a measure
enacted against Obscene books, Cockburn, C.J. formulated the
test in these words:
“I think the test of obscenity is this,
whether the tendency of the matter charged as
obscenity is to deprave and corrupt those
whose minds are open to such immoral
influences, and into whose hands publication
of
(1) [1868] L.R. 3 Q.B. 360.
83
this sort may fail… It is quite
certain that it would suggest to the
minds of the young of either sex, or even
to persons of more advanced years, thought of
most impure and libidinous character.”
This Court has in Udeshi v. State of Maharashtra(1)
considered the above test and also the test laid down
in certain other American cases. Hidayatullah, J. as
he then was, at the outset pointed out that it is not
easy to lay down a true test because “art has such varied
facets and such individualistic appeals that in the same
object the insensitive sees only obscenity because his
attention is arrested, not by the general or artistic appeal
or message which he cannot comprehend, but by what he can
see, and the intellectual sees beauty and art but nothing
gross.” It was also pointed out in that decision at p. 74,
“None has so far attempted a definition
of obscenity because the meaning can be laid
bare without attempting a definition by
describing what must be looked for. It may,
however, be said at once that treating with
sex and nudity in art and literature cannot be
regarded as evidence of obscenity without
something more. It is not necessary that the
angels and saints of Michelangelo should be
made to wear breeches before they can be
viewed. If the rigid test of treating with
sex as the minimum ingredient were accepted
hardly any writer of fiction today would
escape the fate Lawrence had in his days.
Half the book-shops would close and the other
half would deal in nothing but moral and
religious books which Lord Campbell boasted
was the effect of his Act.”
It is, therefore, the duty of the court to consider the
obscene matter by taking an overall view of the entire work
and to determine whether the obscene passages are so likely
to deprave and corrupt those whose minds are open to such
influences and in whose hands the book is likely to fail and
in doing so one must not overlook the influences of the book
on the social morality of our contemporary society. We can
do no better than to refer to this aspect in the language of
Hidayatullah, J. at p. 76:
“An overall view of the obscene matter
in the setting of the whole work would, of
course, be necessary, but the obscene matter
must be considered by itself and separately to
find out whether it is so gross and its
obscenity so decided that it is likely to
deprave and corrupt those whose minds
are open to influences of this sort and into
whose hands the book is likely to fall.”
(1) [1965] 1 S.C.R. 65.
84
Referring to the attempt which our national and
regional languages are making to strengthen themselves by
new literary standards after a deadening period under the
impact of English, it was further observed at p. 77,
“that where obscenity and art are mixed,
art must so preponderate as to throw the
obscenity into a shadow or the obscenity so
trivial and insignificant that it can have no
effect and may be overlooked. In other words,
treating with sex in a manner offensive to
public decency and morality (and these are the
words of our Fundamental Law), judged of by
our national standards and considered likely
to pander to lascivious, prurient or sexually
precocious minds, must determine the
result. We need not attempt to bowdlerize all
literature and thus rob speech and expression
of freedom. A balance should be maintained
between freedom of speech and expression and
public decency and morality but when the
latter is substantially transgressed the
former must give way.”
Bearing in mind these observations and the tests laid down
in Udeshi’s case,(1) we propose to examine, having regard to
our national standards, the passages in Shama to ascertain
in the light of the work as a whole whether the treat
with sex in such a way as to be offensive to public
decency and morality as can be considered likely to pander
to lascivious, prurient or sexually precocious minds.
The second appellant writes about the life of a poet
Nishikant who left school in the days of freedom struggle,
wrote revolutionary poems, but as the freedom struggle waned
he did not join school as others had done notwithstanding
his brother’s advice that he should pass the metric so that
he could be employed in service. As he was mostly
unemployed, he was living on his brother and on the bounty
of his sister-in-law who was kind and considerate to him.
Nishikant, it will appear, is emotional, sensitive and has
the power to discern right from wrong. The story starts
,with his being employed as a teacher and his meeting
Sharma, the’ Music teacher in the school. His attraction
for her and the opportunity she gives him to meet her alone
in her room fills him with a sense of foreboding lest he may
have to endure the pangs of suffering which he had to
undergo. in his two earlier affairs with Neela and Vanira.
The poet recalls these two affairs individually and we get
the impression that the pain which he underwent should not
be repeated. It is more as a repellent to any further
involvement with Shama that these experiences are
related.
(1) [1965] 1 S.C.R. 65.
85
Neela who is about 17 years of age is the daughter 015
a distant maternal cousin of his mother. As she had reached
the marriageable age, her father in Goa, Wasudeo who always
treated Nishikant’s mother like his own sister is anxious to
get her married to some eligible youngman, but evidently the
opportunity for choosing the right person was remote. So
he suggests to Nishikant’s mother that Nishikant should
come and bring Neela to Bombay to live with them where they
would have better opportunity of choosing a youngman for
her to be married. Nishikant who was appointed in a
newspaper office was at first reluctant but his sister-in-
law persuades him and so he goes to Goa. When he meets
Neela, she had changed and was not as ugly as when he had
seen her earlier. The author then depicts the slow but
steady maturing of the love between them, the seeking of
and getting of opportunities to be near to each other, their
having to sleep in the same bed while on the boat coming to
Bombay and ultimately falling in love with each other which
developed during Neela’s stay in Bombay. During Neela’s
stay with Nishikant’s family the love between her and
Nishikant became intense as a result Nishikant proposes to
marry her and writes to her father for his consent. They
wait for a reply but unknown to Nishikant, Neela receives a
reply from her father rejecting the proposal on the ground
that Nishikant is unemployed and would not join Government
service even though he had suggested it to him. He says in
that letter that poetry may bring him fame but would not
give him a livelihood. As he was entirely dependant on his
brother for his maintenance, the father refused to give
his consent in the interest of Neela’s happiness and told
her that he was coming back to fetch her. As Neela was in
love with Nishikant but she knew that she would not be
married to him, she encourages him to bring their love to
culmination. This state of affairs lasted for a few days
before her father took her away. About two months later
Nishikant receives an invitation card for Neela’s marriage
and thereafter he received another letter written by Wasudeo
to his daughter to which we have earlier referred and which
also. contained at the back of it Neela’s message to
Nishikant asking him to forget her.
Even after four years he was unable to forget Neela and
had taken to drinking and coming home late. He was idle for
long spells and whenever he thought of Neela he wrote a
poem. Then one day he was introduced to Vanita who was a
graduate and a married woman who had left her husband. She
was a critic of stories and novels. When they met, she had
praised his poems and had invited him to come to. her room
ostensibly to discuss his poetry. Vanita is shown as an
oversaxed woman, experienced and forward, making advances
and suggestions. Ultimately she and Nishikant have several
affairs till one morning
86
he finds that the person who had introduced her to him
was coming out of her room and when he went in he found
Vanita sleeping naked. His spirit revolted seeing her in
that condition. He was greatly upset at her recalcitrance
when he asked her how many more men she had. She replied
that it had nothing to do with him, that he had got what he
wanted and she does not want to be a slave to any
person. He retorted with indignation that he did not wish
to see her face and walked out. He had then made up his
mind not to have any relations with any woman.
It was with such unpleasant experiences that when he met
Shama and was attracted to her he was hesitating and
avoiding meeting her alone but circumstances conspired to
bring them together and again another affair developed
between them. He encourages Shama to sing, writes lyrics
for her songs and when she gives a performance in school he
arranges for a radio and gramophone representatives to be
present there. Her music was appreciated and she began to
get audition from these sources. It appears one of the
school teacher Kale had earlier attempted to make love to
Shama and she had slapped him. When Kale informs
Nishikant that he knows about his affairs with Shama,
Nishikant gets angry and tells him that he knows how he was
slapped by Shama for making advances to her. This enraged
Kale and he seems to have taken his revenge by maligning the
character of Shama to the Principal. As a result of this,
the Principal dismissed her. Hearing this, Nishikant gets
angry, goes to the Headmaster and accuses him of being an
accomplice of Kale and leaves the service. He then
persuades Shama to start a music school, later gets her
engagements in films as a playback singer for which he was
asked to write lyrics. Shama’s reputation as a singer grows
rapidly in the Marathi public. It was then that her uncle
knowing of it comes to see her and makes insinuations
against Nishikant who is offended and hurt because Shama
does not prevent her uncle but listens to him without a
demur. Periodical quarrels are witnessed because Shama
becomes more status minded, begins to think of her wealth
and position and moves into wealthy quarters all of which
are against Nishikant’s outlook and temperament. Both began
to fall apart and the visits of Nishikant to Shama became
rare. Even though Nishikant lives in poverty, he is too
proud to ask her money and is not willing to live with her
on her conditions. He stays away from her, showing that he
has pride, self respect and spirit of sacrifice. Suddenly a
realisation comes to Shama that she had wronged Nishikant
and that she owed everything to him, and therefore has an
intense desire for reconciliation. In this state of affairs
When she hears that he is taking part in the Kavi Samelan on
the radio she gets into the car and asks her driver to drive
fast
87
to the radio station. On tiffs pitch of expectant
reconciliation and ultimate reunion the story ends.
The story read as a whole does not, in our view, amount
to its being a pornography nor does it pander to the
prurient interest. It may not be of a very high literary
quality and may show immaturity and insufficient
experience of the writer, but in none of the passages
referred to by the complainant do we find anything offending
public order or morality. The High Court itself did not
consider the description of Neela when Nishikant meets her
in Goa (at p. 107) objectionable, nor the narration and the
description of the situation which is created for Nishikant
and Neela on the way back to Bombay from Goa when for want
of room they had to sleep on a single bed (p. 112) as
obscene. The passages at pp. 112, 114, 119-120 and 131 have
been found by the High Court to come within the mischief
of s. 292 I.P.C. We have been taken through the
corresponding passages in the English translation and even
allowing for the translation not bringing out the
literary or artistic refinement of the original
language, we find little in these passages which could be
said to deprave or corrupt those in whose hands the book
is likely to fall, nor can it be said that any of the
passages advocates, as the High Court seems to think, a
licentious behaviour depraving and corrupting the morals
of adolescent youth. We do not think that it can be
said with any assurance that merely because adolescent
youth read situations of the type presented in the book,
they would become depraved, debased and encouraged to
lasciviousness. It is possible that they may come across
such situations in life and may have to face them. But if a
narration or description of similar situations is given in
a setting emphasising a strong moral to be drawn from it
and condemns the conduct of the erring party as wrong and
loathsome it cannot be said that they have a likelihood
of corrupting the morals of those in whose hands it is
likely to fall–particularly the adolescent.
In the passage at pp. 113-114 Nishikant takes Neela
out to show the sights of the city of Bombay but instead
takes her to a picture where after the lights go off,
seeing a soldier and his girl friend in front kissing,
they also indulge in kissing. Then as we said earlier,
when the love between them develops Nishikant wanted to
marry but the father of the girl was unwilling.
Neela realising that their love could never be consummated
encourages him to bring it to a culmination. In this way
they enjoy unmarried bliss for a few days until Neela’s
father takes her away.
We agree with the learned Judge of the High Court that
there is nothing in this or in the subsequent passages
relating to Neela, Vanita and Shama which amounts to
poronography nor has the author indulged in a description
of the sex act or used any
88
language which can be classed as vulgar. Whatever has been
done is done in a restrained manner though in some places
there may have been an exhibition of bad taste, leaving it
to the more experienced to draw the inferences, but
certainly not sufficient to suggest to the adolescent
anything which is depraving or lascivious. To the
literate public there are available both to the adults and
the adolescents innumerable books which contain references
to sex. Their purpose is not, and they have not the effect
of stimulating sex impulses in the reader but may form part
of a work of art or are intended to propagate ideas or to
install a moral.
The concept of obscenity would differ from country to
country depending on the standards of morals of contemporary
society. What is considered as a piece of literature in
France may be obscene in England and what is considered in
both countries as not harmful to public order and morals may
be obscene in our country. But to insist that the standard
should always be/or the writer to see that the adolescent
ought not to be brought into contact with sex or that if
they read any references to sex in what is written whether
that is the dominant theme or not they would be affected,
would be to require authors to write books only for the
adolescent and not for the adults. In early English
writings authors wrote only with unmarried girls in view but
society has changed since then to allow litterateurs and
artists to give expression to their ideas, emotions and
objectives with full freedom except that is should not fall
within the definition of ‘obscene’ having regard to the
standards of contemporary society in which it is read. The
standards of contemporary society in India are also fast
changing. The adults and adolescents have available to them
a large number of classics, novels, stories and pieces, of
literature which have a content of sex, love and romance.
As. observed in Udeshi’s(1) case if a reference to sex by
itself is considered obscene, no books can be sold except
those which are purely religious. In the field of art and
cinema also the adolescent is. shown situations which even a
quarter of a century ago would be considered derogatory to
public morality, but having regard to changed conditions
are more taken for granted without in anyway tending to
debase or debauch the mind. What we have to see is that
whether a class, not an isolated case, into whose hands the
book, article or story falls suffer in their moral outlook
or become depraved by reading it or might have impure and
lecherous thought aroused in their minds. The charge of
obscenity must, therefore, be judged from this aspect.
We do not think that any of the impugned passages which
have been held by the High Court as offending s. 292 I.P.C.
can
(1) [1965] 1 S.C.R. 65.
89
be said to pervert the morals of the adolescent or be
considered to be obscene. In this view, we allow the
appeal, set aside the conviction and fine. The fine if paid
is directed to be refunded.
R.K.P.S. Appeal allowed.
L1 Sup. CI/70--7
90