{"id":15370,"date":"1969-08-25T00:00:00","date_gmt":"1969-08-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chandrakant-kalyandas-kakodar-vs-the-state-of-maharashtra-and-ors-on-25-august-1969"},"modified":"2016-08-28T16:49:46","modified_gmt":"2016-08-28T11:19:46","slug":"chandrakant-kalyandas-kakodar-vs-the-state-of-maharashtra-and-ors-on-25-august-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chandrakant-kalyandas-kakodar-vs-the-state-of-maharashtra-and-ors-on-25-august-1969","title":{"rendered":"Chandrakant Kalyandas Kakodar vs The State Of Maharashtra And Ors on 25 August, 1969"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Chandrakant Kalyandas Kakodar vs The State Of Maharashtra And Ors on 25 August, 1969<\/div>\n
Equivalent citations: 1970 AIR 1390, \t\t 1970 SCR (2)\t 80<\/div>\n
Author: P J Reddy<\/div>\n
Bench: Reddy, P. Jaganmohan<\/div>\n
           PETITIONER:\nCHANDRAKANT KALYANDAS KAKODAR\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF MAHARASHTRA AND ORS.\n\nDATE OF JUDGMENT:\n25\/08\/1969\n\nBENCH:\nREDDY, P. JAGANMOHAN\nBENCH:\nREDDY, P. JAGANMOHAN\nSIKRI, S.M.\nMITTER, G.K.\n\nCITATION:\n 1970 AIR 1390\t\t  1970 SCR  (2)\t 80\n 1969 SCC  (2) 687\n CITATOR INFO :\n R\t    1986 SC 967\t (25)\n\n\nACT:\nObscenity-Tests for determining-Penal Code Sec. 292.\n\n\n\nHEADNOTE:\nThe  appellant, the author of a short story and the  printer\nand publisher of the story were convicted under section\t 292\nI.P.C.\ton  a  charge  of  obscenity.\tSetting\t aside\t the\nconviction this Court,\n    HELD:  It  is  the duty of the  Court  to  consider\t the\narticle,  story\t or book by taking an overall  view  of\t the\nentire\twork and to  determine whether the obscene  passages\nare  so likely to deprave and corrupt those whose minds\t are\nopen  to  such\tinfluences and in whose hands  the  book  is\nlikely to fall; and in doing so the influence of the book on\nthe  social morality of our contemporary society  cannot  be\noverlooked.   Even so as the question of obscenity may\thave\nto  be judged in the light of the claim that the work has  a\npredominant literary merit, it may be necessary if it is  at\nall  required, to rely to a certain extent on  the  evidence\nand views of leading litterateurs on that aspect. [82 D;  83\nE--G]\n    To\tinsist\tthat the standard would always\tbe  for\t the\nwriter\tto see that the adolescent ought not to\t be  brought\ninto contact with sex or that if they read any references to\nsex  in what is written, whether that is the dominant  theme\nor  not,  they would be affected, would be  to\trequire\t the\nauthors\t to write books only for the adolescent and not\t for\nthe adults What has to be seen is that whether a class,\t not\nan  isolated  case, into whose hands the  book,\t article  or\nstory falls suffer in their moral outlook or become depraved\nby  reading  it or might have impure or\t lecherous  thoughts\naroused\t in  their  minds.  The charge\tof  obscenity  must,\ntherefore, be judged from this aspect. [88 D, G--H]\nRanjit\tD'. Udeshi v. State of Maharashtra<\/a> [1965] 1  S.C.R.,\n65 followed.\n    Applying  the above tests the story read as a whole\t did\nnot amount to its being pornography nor did it pander to the\nprurient interest. [87 A--B]\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 170  of
\n1967.\n<\/p>\n
    Appeal  by\tspecial leave from the\tjudgment  and  order
\ndated October 25, 1966 of the Bombay High Court in  Criminal
\nAppeal No. 805 of 1965.\n<\/p>\n
    S.S.   Kavalekar,\tK.  Rajendra  Chaudhuri\t  and\tK.R.
\nChaudhuri, for the appellant.\n<\/p>\n
    H.R. Khanna, B.D. Sharma and S.P. Nayar, for  respondent
\nNo.1.\n<\/p>\n
The Judgment of the Court was delivered by
\n    P.\tJaganmohan  Reddy, J.  This  appeal  is\t by  special
\nleave  directed\t against  the judgment of  the\tBombay\tHigh
\nCourt.\n<\/p>\n
81<\/span><\/p>\n
    The\t appellant is the author of a short  story  entitled
\nShama  published  in  the 1962 Diwali  Issue  of  Rambha,  a
\nmonthly Marathi Magazine, which story is said to be obscene.
\nCriminal  proceedings were, therefore, initiated before\t the
\nfirst\tclass\tMagistrate, Poona by the  complainant  Bhide
\nunder  s.  292\tI.P.C. against\tthe  Printer  and  Publisher
\naccused 1, the writer of the story accused 2 and the selling
\nagent  accused 3.  The complainant stated that he  had\tread
\nthe  aforesaid\tDiwali\tissue of  Rambha   and\t found\tmany
\narticles  and  pictures\t in  it\t to  be\t obscene  which\t are
\ncalculated  to corrupt and deprave the minds of the  readers
\nin  general  and  the  young  readers  in  particular.\t The
\nComplainant  further relented to several other\tarticles  in
\nthe  same  issue such as the story of  Savitri\tand  certain
\ncartoons  but  we are not now concerned with  these  because
\nboth  the  Magistrate as well the High Court did  not  think
\nthat  they  offended  the provisions of s.  292\t I.P.C.\t the
\nmagistrate  after an exhaustive consideration did  not\tfind
\nthe  accused  guilty  of the offence with  which  they\twere
\ncharged and, therefore, acquitted them.\t The complainant and
\nthe State filed appeals against this judgment of  acquittal.
\nBefore\tthe High Court it was  conceded that  there  was  no
\nevidence  that\t accused No. 3 had sold any  copies  of\t the
\nissues\tof Rambha and accordingly the order of acquittal  in
\nhis  favour  was  confirmed.  In so far\t as  the  other\t two
\naccused are concerned it reversed the order of acquittal and
\nconvicted the printer and publisher accused 1 and the writer
\naccused 2 under s. 292 I.P.C. but taking into  consideration
\nthe degree of obscenity in the passages complained of a fine
\nRs.  25\/-  only was imposed on each of the  accused  and  in
\ndefault they were directed to suffer simple imprisonment for
\na  week.  It was also directed that copies of  the  magazine
\nRambha in which the offending story was published and  which
\nmay  be\t in  possession\t and power of  the  two\t accused  be
\ndestroyed.\n<\/p>\n
    The\t allegation,  against the accused  is  that  certain
\npassages  in  the story of Shama at pp. 111-112,  114,\t116,
\n118-121, 127, 128, 131, and 134 are said to be obscene.\t  In
\nsupport\t of  this the complainant examined himself  and\t led
\nthe  evidence  of Dr. P.G. Sahstrabudhe and Dr. G.V. Purohit
\nin  support of his allegation that the novel is obscene\t and
\nthat the writer and publisher contravened the provisions  of
\ns. 292 I.P.C.  Accused No. 1 stated that the story of  Shama
\nwas   written  by  an  ;able  writer  which   depicted\t the
\nfrustration  in\t the life of a poet and denied that  it\t was
\nobscene.   The writer Kakodar, accused No. 2 claims to\thave
\nwritten\t about\t60  such stories.  which  are  published  in
\ndifferent periodicals by reputed publishers.  He also denies
\nthat  Shama is obscene and states that\the  has\t  introduced
\ncertain characters in order to condemn the worst and glorify
\nthe   best and it was never his intention to  titillate\t the
\nsex feelings of the
\n82<\/span>
\nreaders,  but on the other hand his attempt was\t to  achieve
\nthe  literary and artistic  standard which was\tin   keeping
\nwith the style of some of the able and successful writers of
\nMarathi literature.  In support of his defence, he  examined
\nShri  Keluskar\tand  Prof.  Madho  Manohar  D.Ws.  1  and  2
\nrespectively.\tThe Court on its own summoned  and  examined
\nProf.  N.S.   Phadke   and  Acharya  P.K.  Atre.   Both\t the
\nmagistrate  as well as the learned Judge of the\t High  Court
\nwere conversant with Marathi and they seem to have read\t the
\nstory  of Shama in the original, an advantage which we\thave
\nnot  got.   However,  on a consideration  of  the  offending
\npassages  in  the story to which we shall  refer  presently,
\nthey came to different and opposite conclusions.
\n    It\tis apparent that the question whether  a  particular
\narticle\t or  story  or\tbook is\t obscene  or  not  does\t not
\naltogether depend on oral evidence because it is the duty of
\nthe  court  to ascertain whether the book or  story  or\t any
\npassage\t or  passages  therein offend the provisions  of  s.\n<\/p>\n
292.  Even so as the  question\tof obscenity may have to  be
\njudged\tin  the\t light\tof the claim that  the\twork  has  a
\npredominant literary merit, it may be necessary if it is  at
\nall  required, to rely to a certain extent on  the  evidence
\nand   views   of  leading  litterateurs\t  on   that   aspect
\nparticularly  when the work is in a language with which\t the
\nCourt  is not conversant. Often a translation may not  bring
\nout the delicate nuances of the literary art in the story as
\nit does in the language in which it is written and in  those
\ncircumstances what is  said  about  its literary quality and
\nworth by persons competent to speak may be of value,  though
\nas  was\t said  in an earlier decision,\tthe  verdict  as  to
\nwhether\t the book or article or story considered as a  whole
\npanders to the prurient and is obscene must be judged by the
\ncourts and ultimately by this Court.\n<\/p>\n
    What is obscenity has not been defined either in s.\t 292
\nIPC  or\t in any of the statutes prohibiting  and  penalising
\nmailing,  importing,  exporting, publishing and\t selling  of
\nobscene\t matters.  The test that has been generally  applied
\nin  this  country was that laid down by\t Cockburn,  C.J.  in
\nHicklin’s  case(1)  and even after the inauguration  of\t the
\nConstitution  and considered in relation to the\t fundamental
\nright of freedom of speech and expression this test, it\t has
\nbeen held, should not  be  discarded.  In  Hicklin’s case(1)
\nwhile  construing  statutes 20 and 21  Victoria,  a  measure
\nenacted against Obscene books, Cockburn, C.J. formulated the
\ntest in these words:\n<\/p>\n
\t\t    “I think the test of obscenity is  this,
\n\t      whether  the tendency of the matter charged as
\n\t      obscenity\t is  to deprave\t and  corrupt  those
\n\t      whose   minds   are  open\t to   such   immoral
\n\t      influences,  and into whose hands\t publication
\n\t      of
\n(1) [1868] L.R. 3 Q.B. 360.<\/p><\/blockquote>\n
83<\/span><\/p>\n
\t\t    this  sort\tmay  fail…  It  is   quite
\n\t      certain  that  it\t would\t    suggest  to\t the
\n\t      minds  of\t the young of either  sex,  or\teven
\n\t      to persons of more advanced years, thought  of
\n\t      most\timpure and libidinous character.”\n<\/p><\/blockquote>\n
This  Court  has  in  Udeshi  v.  State\t of   Maharashtra(1)
\nconsidered     the above test and also the test\t laid\tdown
\nin   certain  other    American cases.\tHidayatullah, J.  as
\nhe  then  was, at the outset\tpointed out that it  is\t not
\neasy to lay down a true test because\t“art has such varied
\nfacets and such individualistic appeals that\tin the\tsame
\nobject\tthe insensitive sees only obscenity  because\t his
\nattention is arrested, not by the general or artistic appeal
\nor    message which he cannot comprehend, but by what he can
\nsee,   and the intellectual sees beauty and art but  nothing
\ngross.”\t  It was also pointed out in that decision at p. 74,
\n\t\t     “None has so far attempted a definition
\n\t      of  obscenity because the meaning can be\tlaid
\n\t      bare   without  attempting  a  definition\t  by
\n\t      describing  what must be looked for.  It\tmay,
\n\t      however,\tbe said at once that  treating\twith
\n\t      sex and nudity in art and literature cannot be
\n\t      regarded\tas  evidence  of  obscenity  without
\n\t      something more.  It is not necessary that\t the
\n\t      angels  and saints of Michelangelo  should  be
\n\t      made  to\twear  breeches before  they  can  be
\n\t      viewed.\tIf the rigid test of  treating\twith
\n\t      sex  as the minimum ingredient  were  accepted
\n\t      hardly  any   writer of  fiction\ttoday  would
\n\t      escape  the  fate Lawrence  had in  his  days.\n<\/p>\n
\t      Half the book-shops would close and the  other
\n\t      half  would  deal\t in nothing  but  moral\t and
\n\t      religious\t books which Lord  Campbell  boasted
\n\t      was the effect of his Act.”\n<\/p>\n
It  is,\t therefore, the duty of the court to  consider\t the
\nobscene matter by taking an overall view of the entire\twork
\nand  to determine whether the obscene passages are so likely
\nto  deprave and corrupt those whose minds are open  to\tsuch
\ninfluences and in whose hands the book is likely to fail and
\nin doing so one must not overlook the influences of the book
\non the social morality of our contemporary society.  We\t can
\ndo no better than to refer to this aspect in the language of
\nHidayatullah, J. at p. 76:\n<\/p>\n
\t\t      “An overall view of the obscene matter
\n\t      in  the setting of the whole work\t would,\t  of
\n\t      course,  be  necessary, but the obscene matter
\n\t      must be considered by itself and separately to
\n\t      find  out\t whether it is so  gross   and\t its
\n\t      obscenity\t so  decided that it  is  likely  to
\n\t      deprave  and\t corrupt those\twhose  minds
\n\t      are  open to influences of this sort and\tinto
\n\t      whose hands the book is likely to fall.”\n<\/p><\/blockquote>\n
(1) [1965] 1 S.C.R. 65.\n<\/p>\n
\t      84<\/span><\/p>\n
Referring   to\tthe  attempt   which   our   national\t and
\nregional  languages are making to strengthen  themselves  by
\nnew  literary standards after a deadening period  under\t the
\nimpact of English, it was further observed at p. 77,
\n\t\t    “that where obscenity and art are mixed,
\n\t      art  must\t so  preponderate as  to  throw\t the
\n\t      obscenity\t into a shadow or the  obscenity  so
\n\t      trivial and insignificant that it can have  no
\n\t      effect and may be overlooked.  In other words,
\n\t      treating\twith  sex in a manner  offensive  to
\n\t      public decency and morality (and these are the
\n\t      words  of\t our Fundamental Law), judged of  by
\n\t      our  national standards and considered  likely
\n\t      to pander to lascivious, prurient or  sexually
\n\t      precocious    minds,   must   determine\t the
\n\t      result.  We need not attempt to bowdlerize all
\n\t      literature and thus rob speech and  expression
\n\t      of  freedom.  A balance should  be  maintained
\n\t      between  freedom of speech and expression\t and
\n\t      public  decency  and  morality  but  when\t the
\n\t      latter   is  substantially  transgressed\t the
\n\t      former must give way.”\n<\/p>\n
Bearing\t in mind these observations and the tests laid\tdown
\nin Udeshi’s case,(1) we propose to examine, having regard to
\nour  national standards, the passages in Shama to  ascertain
\nin  the\t light of the work as a whole  whether\t the   treat
\nwith   sex   in\t such a way as to  be  offensive  to  public
\ndecency\t and morality as can be considered likely to  pander
\nto lascivious, prurient or sexually precocious minds.
\n    The\t second\t appellant writes about the life of  a\tpoet
\nNishikant  who left school in the days of freedom  struggle,
\nwrote revolutionary poems, but as the freedom struggle waned
\nhe  did not join school as others had  done  notwithstanding
\nhis brother’s advice that he should pass the metric so\tthat
\nhe  could  be  employed\t in  service.\tAs  he\twas   mostly
\nunemployed,  he was living on his brother and on the  bounty
\nof  his sister-in-law who was kind and considerate  to\thim.
\nNishikant,  it will appear, is emotional, sensitive and\t has
\nthe  power  to discern right from wrong.  The  story  starts
\n,with  his  being employed as a teacher\t and   his   meeting
\nSharma,\t the’ Music teacher in the school.   His  attraction
\nfor her and the opportunity she gives him to meet her  alone
\nin her room fills him with a sense of foreboding lest he may
\nhave  to  endure  the pangs of suffering  which\t he  had  to
\nundergo.  in his two earlier affairs with Neela and  Vanira.
\nThe poet recalls  these\t two affairs individually and we get
\nthe  impression that the pain which he underwent should\t not
\nbe  repeated.\tIt  is more as a repellent  to\tany  further
\ninvolvement   with  Shama  that\t these\texperiences\t are
\nrelated.\n<\/p>\n
(1) [1965] 1 S.C.R. 65.\n<\/p>\n
85<\/span><\/p>\n
    Neela who is about 17 years of age is the  daughter\t 015
\na distant maternal cousin of his mother.  As she had reached
\nthe marriageable age, her father in Goa, Wasudeo who  always
\ntreated Nishikant’s mother like his own sister is anxious to
\nget her married to some eligible youngman, but evidently the
\nopportunity  for choosing the right person  was\t remote.  So
\nhe   suggests  to Nishikant’s mother that  Nishikant  should
\ncome and bring Neela to Bombay to live with them where\tthey
\nwould\thave  better opportunity of choosing a youngman\t for
\nher   to   be\tmarried. Nishikant who was  appointed  in  a
\nnewspaper  office was at first reluctant but his  sister-in-
\nlaw  persuades\thim and so he goes to Goa.   When  he  meets
\nNeela,\tshe had changed and was not as ugly as when  he\t had
\nseen  her  earlier.  The author then depicts  the  slow\t but
\nsteady maturing of the love  between  them,  the seeking  of
\nand getting of opportunities to be near to each other, their
\nhaving to sleep in the same bed while on the boat coming  to
\nBombay and ultimately falling in love with each other  which
\ndeveloped  during  Neela’s stay in Bombay.   During  Neela’s
\nstay  with  Nishikant’s family the love\t between   her\t and
\nNishikant  became intense as a result Nishikant proposes  to
\nmarry  her and writes to her father for his  consent.\tThey
\nwait for a reply but unknown to Nishikant, Neela receives  a
\nreply  from her father rejecting the proposal on the  ground
\nthat  Nishikant is unemployed and would not join  Government
\nservice even though he had suggested it to him.\t He says  in
\nthat  letter  that poetry may bring him fame but  would\t not
\ngive him a livelihood.\tAs he was entirely dependant on\t his
\nbrother\t for his  maintenance,\tthe  father refused to\tgive
\nhis  consent in the interest of Neela’s happiness  and\ttold
\nher  that he was coming back to fetch her.  As Neela was  in
\nlove  with Nishikant but she knew that\tshe  would  not\t  be
\nmarried\t to him, she encourages him to bring their  love  to
\nculmination.   This state of affairs lasted for a  few\tdays
\nbefore\ther  father took her away.  About two  months  later
\nNishikant  receives an invitation card for Neela’s  marriage
\nand thereafter he received another letter written by Wasudeo
\nto his daughter to which we have earlier referred and  which
\nalso.  contained  at  the  back of  it\tNeela’s\t message  to
\nNishikant asking him to forget her.\n<\/p>\n
    Even after four years he was unable to forget Neela\t and
\nhad taken to drinking and coming home late.  He was idle for
\nlong  spells  and whenever he thought of Neela\the  wrote  a
\npoem.\tThen one day he was introduced to Vanita who  was  a
\ngraduate and a married woman who had left her husband.\t She
\nwas a critic of stories and novels.  When they met, she\t had
\npraised\t his poems and had invited him to come to. her\troom
\nostensibly  to\tdiscuss his poetry.  Vanita is shown  as  an
\noversaxed  woman, experienced and forward, making   advances
\nand  suggestions. Ultimately she and Nishikant have  several
\naffairs till one morning
\n86<\/span>
\nhe  finds  that the person who had introduced her   to\t him
\nwas  coming  out of her room and when he went  in  he  found
\nVanita\tsleeping naked.\t His spirit revolted seeing  her  in
\nthat  condition. He was greatly upset at  her  recalcitrance
\nwhen  he asked her how many more men she had.\tShe  replied
\nthat it had nothing to do with him, that he had got what  he
\nwanted\tand  she  does not want\t    to be  a  slave  to\t any
\nperson.\t  He retorted with indignation that he did not\twish
\nto  see her face and walked out.  He  had  then made up\t his
\nmind not to have any relations with any woman.
\n    It was with such unpleasant experiences that when he met
\nShama  and  was\t attracted  to her  he\twas  hesitating\t and
\navoiding  meeting her alone but circumstances  conspired  to
\nbring\tthem  together and again  another  affair  developed
\nbetween\t them.\tHe encourages Shama to sing,  writes  lyrics
\nfor her songs and when she gives a performance in school  he
\narranges  for a radio and gramophone representatives  to  be
\npresent\t there.\t Her music was appreciated and she began  to
\nget  audition  from  these sources. It appears\tone  of\t the
\nschool\tteacher Kale had earlier attempted to make  love  to
\nShama  and  she\t had  slapped\thim.   When   Kale   informs
\nNishikant  that\t he  knows about  his  affairs\twith  Shama,
\nNishikant gets angry and tells him that he knows how he\t was
\nslapped\t by Shama for making advances to her.  This  enraged
\nKale and he seems to have taken his revenge by maligning the
\ncharacter of Shama to the Principal.  As a result  of  this,
\nthe Principal dismissed her.  Hearing this,  Nishikant\tgets
\nangry,\tgoes to the Headmaster and accuses him of  being  an
\naccomplice  of\tKale  and  leaves  the\tservice.   He\tthen
\npersuades  Shama  to start a music school,  later  gets\t her
\nengagements  in films as a playback singer for which he\t was
\nasked to write lyrics.\tShama’s reputation as a singer grows
\nrapidly\t in the Marathi public.\t It was then that her  uncle
\nknowing\t of  it\t comes to see  her  and\t makes\tinsinuations
\nagainst\t Nishikant  who is offended and hurt  because  Shama
\ndoes  not  prevent her uncle but listens to  him  without  a
\ndemur.\tPeriodical  quarrels  are  witnessed  because  Shama
\nbecomes\t more status minded, begins to think of\t her  wealth
\nand  position and moves into wealthy quarters all  of  which
\nare against Nishikant’s outlook and temperament.  Both began
\nto  fall apart and the visits of Nishikant to  Shama  became
\nrare.\tEven  though Nishikant lives in poverty, he  is\t too
\nproud  to ask her money and is not willing to live with\t her
\non her conditions.  He stays away from her, showing that  he
\nhas pride, self respect and spirit of sacrifice.  Suddenly a
\nrealisation  comes to Shama that she had  wronged  Nishikant
\nand  that she owed everything to him, and therefore  has  an
\nintense desire for reconciliation.  In this state of affairs
\nWhen she hears that he is taking part in the Kavi Samelan on
\nthe radio she gets into the car and asks her driver to drive
\nfast
\n87<\/span>
\n   to  the  radio  station.  On\t tiffs\tpitch  of  expectant
\nreconciliation\t  and ultimate reunion the story ends.
\n   The\tstory read as a whole does not, in our view,  amount
\nto    its  being  a pornography nor does it  pander  to\t the
\nprurient  interest.   It may not be of a very high  literary
\nquality\t  and\tmay   show    immaturity  and\tinsufficient
\nexperience  of\tthe writer, but in none\t   of  the  passages
\nreferred to by the complainant do we find anything offending
\npublic\torder or morality.  The High Court itself   did\t not
\nconsider the description of Neela when Nishikant meets\t her
\nin Goa (at p. 107) objectionable, nor the narration and\t the
\ndescription of the situation which is created for  Nishikant
\nand   Neela on the way back to Bombay from Goa when for want
\nof   room  they had to sleep on a single bed  (p.  112)\t  as
\nobscene.  The passages at pp. 112, 114, 119-120 and 131 have
\nbeen  found   by the High Court to come within the  mischief
\nof   s.\t 292  I.P.C.\tWe  have  been\ttaken  through\t the
\ncorresponding passages in the\tEnglish translation and even
\nallowing  for  the   translation  not\t bringing  out\t the
\nliterary   or\tartistic  refinement   of    the    original
\nlanguage,  we find little in these passages which  could  be
\nsaid\tto deprave or corrupt those in whose hands the\tbook
\nis  likely    to fall, nor can it be said that\tany  of\t the
\npassages  advocates, as\t  the High Court seems to  think,  a
\nlicentious  behaviour depraving\t  and corrupting the  morals
\nof  adolescent\tyouth.\tWe  do\tnot   think that it  can  be
\nsaid  with  any assurance that merely  because\t  adolescent
\nyouth  read  situations of the type presented in  the  book,
\nthey  would  become  depraved,\tdebased\t and  encouraged  to
\nlasciviousness.\t  It is possible that they may\tcome  across
\nsuch situations in life and may have to face them.  But if a
\nnarration or   description of similar situations is given in
\na  setting emphasising\t a strong moral to be drawn from  it
\nand condemns the conduct   of the erring party as wrong\t and
\nloathsome  it cannot be said  that   they have a  likelihood
\nof  corrupting\tthe morals of those in whose   hands  it  is
\nlikely to fall–particularly the adolescent.\n<\/p>\n
      In  the passage at pp. 113-114 Nishikant\ttakes  Neela
\nout  to\t  show the sights of the city of Bombay but  instead
\ntakes  her  to\t a picture where after the  lights  go\toff,
\nseeing\ta  soldier and his   girl friend in  front  kissing,
\nthey  also indulge in kissing.\tThen   as we  said  earlier,
\nwhen  the love between them develops Nishikant\t wanted\t  to
\nmarry\tbut   the  father  of  the  girl   was\t  unwilling.
\nNeela  realising that their love could never be\t consummated
\nencourages  him to bring it to a culmination.  In  this\t way
\nthey  enjoy  unmarried bliss for a few\tdays  until  Neela’s
\nfather takes   her away.\n<\/p>\n
      We agree with the learned Judge of the High Court that
\nthere\t is  nothing in this or in the\tsubsequent  passages
\nrelating  to  Neela,\tVanita and Shama  which\t amounts  to
\nporonography nor has the   author indulged in a\t description
\nof the sex act\tor  used  any
\n88<\/span>
\nlanguage which can be classed as vulgar.  Whatever has\tbeen
\ndone  is done in a restrained manner though in\tsome  places
\nthere  may have been an exhibition of bad taste, leaving  it
\nto  the\t more  experienced  to\tdraw  the  inferences,\t but
\ncertainly  not\tsufficient  to\tsuggest\t to  the  adolescent
\nanything   which   is\tdepraving  or  lascivious.   To\t the
\nliterate  public there are available both to the adults\t and
\nthe adolescents innumerable books  which  contain references
\nto  sex. Their purpose is not, and they have not the  effect
\nof stimulating sex impulses in the reader but may form\tpart
\nof  a work of art or are intended to propagate ideas  or  to
\ninstall a moral.\n<\/p>\n
    The\t concept of obscenity would differ from\t country  to
\ncountry depending on the standards of morals of contemporary
\nsociety.  What\tis considered as a piece  of  literature  in
\nFrance may  be obscene in England and what is considered  in
\nboth countries as not harmful to public order and morals may
\nbe obscene in our country.  But to insist that the  standard
\nshould\talways be\/or the writer to see that  the  adolescent
\nought  not  to be brought into contact with sex or  that  if
\nthey  read any references to sex in what is written  whether
\nthat  is the dominant theme or not they would  be  affected,
\nwould  be  to require authors to write books  only  for\t the
\nadolescent  and\t not  for  the\tadults.\t  In  early  English
\nwritings authors wrote only with unmarried girls in view but
\nsociety\t has  changed since then to allow  litterateurs\t and
\nartists\t to  give expression to their  ideas,  emotions\t and
\nobjectives with full freedom except that is should not\tfall
\nwithin\tthe  definition of ‘obscene’ having  regard  to\t the
\nstandards of  contemporary society in which it is read.\t The
\nstandards  of  contemporary society in India are  also\tfast
\nchanging.  The adults and adolescents have available to them
\na  large number of classics, novels, stories and pieces,  of
\nliterature  which have a content of sex, love  and  romance.
\nAs.  observed in Udeshi’s(1) case if a reference to  sex  by
\nitself\tis considered obscene, no books can be\tsold  except
\nthose  which are purely religious.  In the field of art\t and
\ncinema also the adolescent is. shown situations which even a
\nquarter\t of a century ago would be considered derogatory  to
\npublic\t morality, but having regard to\t changed  conditions
\nare  more  taken for granted without in\t anyway\t tending  to
\ndebase\tor  debauch the mind. What we have to  see  is\tthat
\nwhether a class, not an isolated case, into whose hands\t the
\nbook,  article or story falls suffer in their moral  outlook
\nor  become depraved by reading it or might have\t impure\t and
\nlecherous  thought  aroused in their minds.  The  charge  of
\nobscenity must, therefore, be judged from this aspect.
\n    We do not think that any of the impugned passages  which
\nhave been held by the High Court as offending s. 292  I.P.C.
\ncan
\n(1) [1965] 1 S.C.R. 65.\n<\/p>\n
89<\/span><\/p>\n
be  said  to  pervert the morals of  the  adolescent  or  be
\nconsidered  to\tbe  obscene.  In this  view,  we  allow\t the
\nappeal, set aside the conviction and fine.  The fine if paid
\nis directed to be refunded.\n<\/p>\n
R.K.P.S.\t\t\t\t     Appeal allowed.\nL1 Sup. CI\/70--7\n90<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Chandrakant Kalyandas Kakodar vs The State Of Maharashtra And Ors on 25 August, 1969 Equivalent citations: 1970 AIR 1390, 1970 SCR (2) 80 Author: P J Reddy Bench: Reddy, P. Jaganmohan PETITIONER: CHANDRAKANT KALYANDAS KAKODAR Vs. RESPONDENT: THE STATE OF MAHARASHTRA AND ORS. DATE OF JUDGMENT: 25\/08\/1969 BENCH: REDDY, P. JAGANMOHAN […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-15370","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nChandrakant Kalyandas Kakodar vs The State Of Maharashtra And Ors on 25 August, 1969 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chandrakant-kalyandas-kakodar-vs-the-state-of-maharashtra-and-ors-on-25-august-1969\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chandrakant Kalyandas Kakodar vs The State Of Maharashtra And Ors on 25 August, 1969 - 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