MANU/SC/0102/1985Equivalent Citation: AIR1986SC967, (1985)4SCC289,

[1985]Supp3SCR17
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 174 of 1973
Decided On: 24.09.1985
Appellants:Samaresh Bose and Ors.
Vs.
Respondent:Amal Mitra and Ors.
Hon'ble Judges/Coram:
A.N. Sen and R.S. Pathak, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: G.L. Sanghi, Sukumaran and Ratna Kapur, Advs.
For Respondents/Defendant: U.R. Lalit, R.K. Jain, D.S. Mehta, M.M. Israiley and Dilip
Sinha, Advs. Adv.
Case Note:
Media and Communication - Novel "Prajapati" - alleged to contain obscene
material - sold and distributed - offence u/s 292 IPC - Chief Presidency
Magistrate imposed fine and punishment - order affirmed by the High Court -
appeal against it - Held, vulgar writing not necessarily obscene- Vulgarity
arouses a feeling of disgust and revulsion- obscenity has the tendency to
deprave and corrupt those whose minds are open to such immoral influences -
a novel is not obscene merely because slang and unconventional words are
used and there is description of female bodies and sex - such words used only
to make the character more realistic - courts below erred in holding the novel
as obscene.
JUDGMENT
A.N. Sen, J.
1 . 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.
2. 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
Section 292 Indian Penal Code (I.P.C. for short) and under Section 292 read with
Section 109 I.P.C.

18-03-2023 (Page 1 of 21) www.manupatra.com Nirma University

3 . On the basis of the said complaint and after compliance with the necessary
formalities, a criminal case being case 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 judgment dated 11th February, 1968. The Learned Chief
Presidency Magistrate for reasons recorded in the Judgment 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, 1 cannot but strike down the impugned novel, after declaring
the same as obscene.
The result of my above findings, is to find both the accused guilty Under
Section 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 1 sentence both of them to
pay a fine of Rs. 201/- each in default to undergo Section 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.
4. 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 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 judgment delivered on 27.6.1972. The 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 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. The learned Chief Presidency Magistrate has directed that the pages
from 174 to 226 of Ext. 1 be destroyed under the provisions of Section 521 Cr.
P.C. That 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.
The Magistrate also failed to notice that during evidence it has come out that
this novel has been published also as a book. That publication in the form of a
book of this novel need also be forfeited under Section 521 Cr.P.C. While I

18-03-2023 (Page 2 of 21) www.manupatra.com Nirma University

 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 Section 521 in respect of the other copies of Ext. 1
and also in respect of the novel if published in book form. The appeal fails and
is dismissed.
5. Against this judgment of the High Court both the accused persons have preferred this
appeal with special leave granted by this Court.
6 . The question for consideration in this appeal is whether the two appellants can be
said to have committed an offence under Section 292 I.P.C. and the answer to this
question will necessarily depend on the finding whether the novel 'Prajapati' is obscene
or not.
7. 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
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 is 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. The 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.
8 . 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 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

18-03-2023 (Page 3 of 21) www.manupatra.com Nirma University

 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.
Q. Would you say any portion of that writing to be obscene?
A. No.
9 . 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:
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.
10. 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?

18-03-2023 (Page 4 of 21) www.manupatra.com Nirma University

 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 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.
1 1 . 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.
12. 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. 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.
1 3 . 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 witness. 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:

18-03-2023 (Page 5 of 21) www.manupatra.com Nirma University

 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 so.
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 so.
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.
14. It may be noted that the learned Chief Presidency Magistrate had placed no reliance
on the testimony of these two witnesses. 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 Section 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 accused
author, that the passages complained of are not obscene and even if it 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 hypocrisy 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
it seems, it has so 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.
15. 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 be mentioned like this through his mouth. Sukhen might be of
a character of that type but the writer ought to be a little bit cautious. The

18-03-2023 (Page 6 of 21) www.manupatra.com Nirma University

 writer must know that the story of Sukhen will not remain written and
preserved in the iron- safe. The writer has got his duty towards 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.
16. 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.
17. 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 Section 292 I.P.C. and the
learned Chief Presidency Magistrate imposed the conviction and the sentence which we
have earlier recorded.
18. 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 Section 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 so
because the author Samaresh Basu who is the Principal accused in this case is a
well 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 poverty, 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.
19. 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 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

18-03-2023 (Page 7 of 21) www.manupatra.com Nirma University

 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-bad 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 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 so 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 Section 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 poronography. Poronography 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 a female and also of lower
animal.
20. 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.
2 1 . 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.
22. 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

18-03-2023 (Page 8 of 21) www.manupatra.com Nirma University

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 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 Section 292 I.P.O. 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 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.
2 3 . 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.
2 4 . 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

18-03-2023 (Page 9 of 21) www.manupatra.com Nirma University

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 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 Section 292 I.P.C. The Court expresses its appreciation for the
assistance given by Mr. Lalit.
25. Section 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 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.
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.
26. 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 say one of its
items, is, if taken as a whole, such as to tend to deprave and corrupt persons

18-03-2023 (Page 10 of 21) www.manupatra.com Nirma University

 who are likely, having regard to all relevant circumstances, to read, see or bear
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
(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 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.
27. It may be noticed that the amended Section to which reference has been made by

18-03-2023 (Page 11 of 21) www.manupatra.com Nirma University

the High Court in the judgment does not appear to be of any material consequence in
deciding this 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'.
28. In the case of Ranjit D. Udeshi v. State of Maharashtra, MANU/SC/0080/1964 :
1965CriL J8 this Court had to decide the question of constitutional validity of Section
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 Section 292 I.P.C. this Court observed at pp. 73-74:
We shall now consider what is meant by the word 'obscene' in Section 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
so held down to 1708 in which year Queen v. Read, Mod.Q.B 205 ., was
decided. In 1717 in the case against one Curl it was ruled for 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 so 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 Section 292 Indian
Penal Code, in spite of some 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'.

18-03-2023 (Page 12 of 21) www.manupatra.com Nirma University

 This test has been uniformly applied in India.
29. 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 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 more than formerly, having
become indurated by literature of different sorts. The attitude is not yet settled.
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 the Riddle of Obscenity) (1964) 112 P L.
R 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.
30. 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 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 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 obscurant will deny the need
for such caution. This 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

18-03-2023 (Page 13 of 21) www.manupatra.com Nirma University

 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 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 Harlan 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.
31. 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:
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 portions 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.
32. 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 Kskodar v.
State of Maharashtra MANU/SC/0147/1969 : 1970CriL J1273 . 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 had been started under
Section 292 I.P.C. but the Magistrate dealing with the complaint acquitted the accused
of the charge. The complainant and the State filed appeals against this judgment of
acquittal by the Magistrate. The High Court, however, held the accused to be guilty of
the charge and imposed in convicting the accused a fine. Against the judgment of the
High Court, an appeal had been preferred to this Court. While dealing with the question
of obscenity within the meaning of Section 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:

18-03-2023 (Page 14 of 21) www.manupatra.com Nirma University

 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 Section 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.
33. This Court held that the book in question was not obscene within the meaning of
Section 292 I.P.C. and 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 poronography 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 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 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 instill 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

18-03-2023 (Page 15 of 21) www.manupatra.com Nirma University

 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 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 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.
34. These two decisions of this Court lay down the legal principles to be observed in
deciding the question of obscenity within the meaning of Section 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. The summing up by the
learned Judge in the case of R.V. Penguine Books Ltd., as reported in Criminal Law
Review, 1961 may be reproduced.
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. The 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. The jury as men and women of the world, not prudish
but with liberal minds, should ask themselves was the tendency of the book to

18-03-2023 (Page 16 of 21) www.manupatra.com Nirma University

 deprave and corrupt those likely to read it, not only 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
ether 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 so that the publication was the public
good, the jury should acquit.
35. 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
Section 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
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 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 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
Section 292 I.P.O. by an objective assessment of the book as a whole and also of the

18-03-2023 (Page 17 of 21) www.manupatra.com Nirma University

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.
36. In the light of the above discussions we now proceed to consider whether the novel
in question is obscene or not.
37. The novel centers 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 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.
38. Sukhen is the youngest son of his parents. The picture 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. There 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. The 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. Shikha with whom Sukhen
has come in contact developed a liking 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

18-03-2023 (Page 18 of 21) www.manupatra.com Nirma University

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 not 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 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.
39. We shall now refer at some length to some of the portions of the book challenged
as obscene and so found by the courts below.
4 0 . 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, 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 sugarcane 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.
41. 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

18-03-2023 (Page 19 of 21) www.manupatra.com Nirma University

be considered to be obscene. 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 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 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 not 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 Chinking there has been kind of confusion
between vulgarity and obscenity. 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. 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 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. 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 all 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 and
after carefully applying our judicial mind in making an objective assessment of the
novel we do not think that it can be said with any assurance that the novel is obscene
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

18-03-2023 (Page 20 of 21) www.manupatra.com Nirma University

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 Section 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.
42. We must, therefore, allow this appeal. We set aside the judgment of the Courts
below and the conviction recorded and 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 Section 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.

© Manupatra Information Solutions Pvt. Ltd.

18-03-2023 (Page 21 of 21) www.manupatra.com Nirma University