H.N. Seth, J.
1. This appeal has been filed on behalf of the State of U. P. against the order dated 10th September, 1965 passed by Temporary Sessions Judge, Mathura in Criminal Appeal No. 369 of 1964 acquitting the respondent Kunji Lal of an offence under Section 292, I. P. G.
2. Allegations on which the respondent was made to stand his trial under Section 292 I. P. C. were that he was the owner of Shyam Kashi Press and carried on the business of publication of books. On 16th of January, 1964 Sri Sarwan Singh of Police Station Kotwali reached his press and found 66 books which are alleged to be obscene. These 66 books were copies of those books which were exhibited in the case as Exs. 1 to 6. These six books were entitled :--
(2) Rati Rahasya,
(3) Anang Rang
(4) Panch Sahayak
(5) Kamkala and
The respondent admitted recovery of these books. He contended that these books were not obscene. According to him they were scientific works meant to give healthy sex education to masses. They were works of eminent writers. He stated that book Ex. 1 was translation of the work of Vatsayan, Ex. 2 was translation of a book written by Koka, known as Rati Rahasya, Ex. 3 was translation of a book entitled Ananrang written by Poet Kalyan Mal, Ex. 4 Panch Sahayak was translation of a book written by Jyotishivcharya.
He stated that Vatsayan lived in the year 200 A. D. Koka in 200 A. D. Jyotishivcharya in 1200 A. D. and Kalyanmal in 1600 A. D. Works of these eminent writers have been translated in several languages. The books Exts. 1 to 4 were meant for married people and were to be used by private circulation. The language used in these books is terse and cannot be understood by children and ordinary persons. Object of these books is to remove the dissensions between husband and wife for proper reproduction of the progeny and to make the married life happy. The books Exs. 5 and 6 were also meant for married people only. According to him he forwarded copies of each of these books to the Collector as required by Press and Registration Act, and to the NationalLibrary of Calcutta. Had the books been considered to be obscene an objection to this effect should have been raised by the authorities much earlier.
3. Only point that arises for consideration in this case is whether the books in question were obscene or not. If they are held to be obscene, it is conceded that all the ingredients for an offence under Section 292, I. P. C. would be made out and the respondent would be guilty of an offence under that section.
4. Learned Magistrate recorded the following findings in respect of each of the six books.
(1) Ex. 1 -- Kamsutra. Its contents were not obscene except the pictures of nude women at pages 40, 41 and 80-81. These pictures are obscene and have no relevance to the text.
(2) Ex. II -- Kati Rahasya. This book also contains pictures of nude women which has no relevance to the text and were obscene. Moreover at pages 127-130, 141-146 and 161-162, the author had discussed methods for subjugating woman, to increase the retention power in man during cohabitation. These passages were also obscene.
(3) Ex. III -- Anang Rang. The book also contained pictures of nude women which had no relevance to the subject hence rendered the book obscene. These pictures were printed at pages 16-17, 48-49. At pages 51-60 the author had given some prescriptions which deal with increasing retention power of male during cohabitation, which was most unscientific. Any suggestion made in the book for making a woman reach her climax before the man during cohabitation was for se (sic) obscene. Similarly the description given by the author at pages 76 to 82 to overpower woman was also obscene. The book was therefore held to be obscene.
(4) Ex. IV. -- Panch Sahayak, -- Printing of the pictures of nude women which had no relevance to the subject matter and the prescription given at pages 59-80 which are unnatural and unscientific, meant for widening and narrowing the mouth of vagina for purposes of obtaining greater satisfaction during sexual intercourse and increasing the size of the male organ are certainly not matters which deal with healthy sexual education. These things have a tendency to deprave and corrupt the minds of young men in whose hands the book may fall. The book was therefore held to be obscene.
(5) Ex. V. Kamkala -- Except for the nude pictures which have no bearing on the subject matter, there was nothing else in the book which could be described as obscene. Because of the pictures this book was held to be obscene.
(6) Ex. VI. Suhagraat -- There is nothing in this book which could be described as obscene.
The learned Magistrate accordingly held the books Exs. 1 to V to be obscene and heldthe respondent guilty of an offence under Section 292, I. P. C. and sentenced him to pay a fine of Rs. 500. He also directed that copies of the book 'Suhagraat' be returned to the respondent and rest of the books destroyed after the period of filing an appeal against his order was over.
5. The respondent went up in appeal and contended that so far as nude pictures in these books were concerned they were inoffensive and were such as were commonly found in magazines. They could not be said to be obscene. These books were translation from Sanskrit diction of the works of well-known authors on the subject. The prescriptions mentioned therein, even if unscientific from the point of view of western methods, were well known Ayurved prescriptions and this description could not render the book obscene as they could not have a tendency to deprave and corrupt the morals of young men. It was also contended that the books had been submitted to the Government for the sole purpose of scrutiny and if no objection was taken to it it meant that the declaration had been given that the books were not obscene. In respect of the books that had been marked, 'for the use of married people only', the finding that some one may hand them over to young men was purely conjectural and did not affect the bona fides of the publication.
6. After discussing the case law on the subject the learned Sessions Judge came to the conclusion that pictures of the nude women which appear to be reprints from various health magazines commonly sold in the market did not fulfil the test of obscenity as laid down in various authorities. He held that there was no suggestive element in the pictures which may be provocative of the lustful ideas so as to deprave or debauch the reader in all events and even though each of these pictures were out of context, they could not be said to be obscene for the reason mentioned above.
7. According to the learned Sessions Judge, these books dealt with sex matters, but there was nothing in the language used in those books so as to excite sexual feelings or to give rise to lustful ideas. So far as the book Kamsutra was concerned mere description of unnatural method for obtaining sexual gratification could not render the book obscene. He referred to the works of authorities like Vatsayan Kam Sutra published by D. B. Tarpurwala, Bombay, Kamsutra by Upadhya and others, and pointed out that similar methods have been advocated in those books. He therefore held that the books Kamsutra could not be held to be obscene.
8. The book Rati Rahasya was marked for private circulation only. In this book certain Mantras were mentioned from pages 127-130 for subjugating woman. They were derived from old Sanskrit Text and were translated into Hindi. According to thelearned Judge these Mantras may be foolish and may not have any efficacy; but as there was nothing in the language to render them lewd or libidinous so as to suggest impure ideas in the minds of the individual who may read them. Recitation of these Mantras therefore could not be said to be obscene. Similarly at pages 141 to 146 certain recipos were mentioned for increasing the retention power. Again there was nothing in the language used by describing the recipes to render them obscene. According to the learned Judge the language used was full of restraint and there was nothing therein to suggest lustful ideas. He was also of opinion that the treatment of the subject of importance at pages 161 to 162 was also not such as to render this passage as obscene.
9. In the book entitled 'Anangrang' at pages 51 to 60 certain prescriptions were given for increasing retention power in men during cohabitation. The learned Judge felt that merely because these prescriptions may be considered to be unscientific that by itself could not be a ground for holding the book to be obscene. Similarly the methods mentioned at pages 76 to 86 for overpowering the woman could also not be said to be obscene as there was nothing lustful in the language used therein.
10. The book 'Panch Sahayak' was marked for married people only but certain prescriptions were mentioned at pages 69 to 80 which may be unscientific. But there was nothing in the language used therein to suggest libidinous or lustful thoughts. He therefore held that none of the six books could he said to be obscene and acquitted the accused of an offence under Section 292, I. P. C.
11. State of Uttar Pradesh has now come up in appeal before us. In this appeal it was contended that the books Ex. 1 to Ex. V were in fact obscene and the finding of the learned Sessions Judge to the contrary is erroneous.
12. When the appeal came up for hearing before a Bench of this Court, it was discovered that the books that were the subject matter of the charge were missing from the record. In the absence of these books it was not possible to proceed with the hearing of the appeal. Efforts were therefore made to get the record reconstructed and the respondent filed before the court one copy each of the four books Ex. 1 to Ex. 4. He did not have in his possession any copy of the book entitled Kamkala Ex. V. The book 'Suhagraat' Ex. VI had not been held to be obscene by the Magistrate and the State did not question the correctness of the finding in any appropriate proceeding. We have therefore heard the arguments only in respect of books Exs. 1 to 4. In the absence of the book 'Kamkala' it is not possible for us to test the conclusion of the learned Sessions Judge that the book was not obscene.
13. The word 'obscene' used in Section 292, I. P. C. has not been defined anywhere in the Code. A long string of authorities of various High Courts in India seems to adopt the meaning given to this word by Cockburn, C. J., in Hicklin's case reported in (1868) 3 QB 360 at p. 371. Test laid down by Cockburn, C. J. is in the following words:
'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 influence and into whose hands a publication of this sort may fall.'
14. In the case of State v. Thakur Prasad, reported in AIR 1959 All 49, a Division Bench of this Court observed as follows:--
'The word 'obscene' is not defined in the Penal Code, but it must be taken as meaning offensive to chastity, modesty, expressing or personating to the mind or view something that delicacy, purity or decency forbids to be expressed. The test of obscenity is this, whether the tendency as obscene is to deprave and corrupt those whose minds are open to such immoral influence and in whose hands a publication of this sort may fall.'
15. Meaning and scope of the word obscene as used in Section 292 of the Penal Code came up for consideration before the Supreme Court of India in the case of Ranjeet D. Udeshi v. State of Maharashtra reported in AIR 1965 SC 881, in connection with the question whether the provisions of Section 292, I. P. C. contravene the fundamental right guaranteed under Article 19(1)(a) of the Constitution or not. While commenting on the test of obscenity as laid down in Hicklin's case, (1868) 3 QB 360 their Lordships of the Supreme Court observed at page 888 of the report as follows:--
'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 impugned book etc., and lays emphasis on the potentiality of the impugned object to deprave and corrupt by immoral influence. It will remain a question to be decided in each case and it does not compel an adverse decision in all cases.'
Their Lordships however, made it clear that it is the obscenity in speech and expression which is offensive to modesty and decency, which is not protected by Article 19(1) of the Constitution. The freedom of speech and expression is subject to reasonable restrictions, which may be thought necessary in the interest of the general public and such interest is the interest of general public (public decency -- Ed.) and morality. It is the interest of general public which is of paramount importance and in this view of the matter, reasonable restrictions in the exercise of this right can be imposed. In this connection their Lordships observed as follows:--
'Speaking in terms of Constitution it can hardly be claimed that obscenity which isoffensive to modesty or decency is within the constitutional protection given to free speech or expression because the Article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinion to change political or social conditions or for advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of general public and one such interest is the interest of public decency and morality. Section 292, Indian Penal Code manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency and morality. The word obscenity is not really vague because it is a word which is well understood even if persons differ in their attitude to what is obscene and what is not. Lawrence thought James Joyce's Ulysees to be an obscene book deserving suppression, but it was legalised and he considered James Joyce to be pornographic but very few people will agree with them.
The former he thought so because it dealt with excretory functions and the latter because it dealt with sex repression (see sex Literaturet Cencorship pp. 26, 201), Condemnation of obscenity depends as much upon the mores of the people as upon the individual. It is always a question of degree or as the lawyers are accustomed to say of where the line is to be drawn. It is, however, clear that obscenity itself has extremely poor value in the propagation of idea, opinion and information of public interest or profit. When there is propagation of ideas opinions and informations of public interest or profit the approach to the problem may become different because then the interest of society may tilt the scale in favour of free speech and expression. It is thus that
'books on medical science with intimate illustrations and photographs, though in a sense immoral, are not considered to be obscene, but the same illustration and photograph collected in book form without the medical text would certainly be considered to be obscene. Section 292, Indian Penal Code dealt with obscenity in this sense and cannot thus be said to be invalid in view of second clause of Article 19.' While dealing with the test laid down in Hicklin's case their Lordships observed as follows:-- 'The important question is whether this test of obscenity squares with the freedom of speech and expression guaranteed under the Constitution, or it needs to be modified and, if so, in what respect. The first of these questions invited the Court to reach a decision on a constitutional issue of most far-reaching character and we must beware that we may not lean too far away from the guaranteed freedom. The laying down of the true test is not rendered any the easier becauseart has such varied facets and such individualistic appeals that in the same object the insensitive sees only obscenity because his attention is arrested, not by the general or artistic appeal or message which he cannot comprehend, but by what he can see, and the intellectual sees beauty and art but nothing gross. The Indian Penal Code does not define the word 'obscene' and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by Courts, and in the last resort by us. The test which we evolve must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not. None has so far attempted a definition of obscenity because the meaning can be laid bare without attempting a definition by describing what must be looked for. It may, however be said at once that treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. It is not necessary that the angles and saints of Michael Angelo should be made to wear breeches before they can be viewed. If the rigid test of treating with sex as the minimum ingredient were accepted hardly any writer of fiction today would escape the fate Lawrence had in his days. Half the book-shop would close and the other half would deal in nothing but moral and religious books, which Lord Campbell boasted was the effect of his Act.'
16. Aforesaid discussion by the Supreme Court indicates that their Lordships of the Supreme Court were of opinion that if propagation of idea, opinion, or information be for public interest or profit it would not be considered to be obscene though such a propagation in different context may be considered to be so. It is in this view of the matter that intimate illustrations in photographs though in a sense immodest are not considered obscene if included in books of medical science. The same illustrations or photographs collected in a book bereft of its medical text may be considered to be obscene. Similarly something which on the face of it may be immodest if contained in a work or art or literature may not be considered to be obscene. The Court has to apply and consider each work at a time, but this examination is not to be done in a spirit of finding fault with the work. If such an attitude towards art and literature is adopted it would make the Court a Board of Censor. An overall view of the matter alleged to be obscene in the setting of the whole work is 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 influence of this sort and into whose hands the book is likely to fall. In this connection the interest of our con-temporary society and particularly the influence of the book on it must not be overlooked. Where obscenity and art are mixed art must be so preponderating as to throw the obscenity into a shadow or the obscenity so trivial or insignificant that it can have no effect and may be overlooked. In other words treating the sex in a manner offensive to public decency and morality judged by our national standard and considered likely to pander to lascivious prurient or sexually precocious minds, must determine the result. A balance has to be struck between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way.
17. Further while considering what would constitute obscenity in dealing with the subject-matter of sex their Lordships of the Supreme Court in the case of AIR 1965 SC 881 at p. 889 observed as follows:--
'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 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 an expression of freedom. A balance should be maintained between freedom of speech and expression and public decency and morality, but when the latter is substantially transgressed the former must give way.'
18. It should also be borne in mind that there is some difference between obscenity as such and pornography. Pornography denotes writings, pictures etc. intended to arouse sexual desire while the former may include writing etc., not intended to do so, but to arouse such desire which have a tendency. Both of course offend against public decency and morals but pornography is obscene in a more aggravated form. Regarding pornographic pictures and writings there can never be a doubt that they would be obscene within the meaning of Section 292 of the Indian Penal Code. Practical difficulty arises in applying the test laid down in Hicklin's case as explained by the Supreme Court only in cases where it is doubtful if the writing or photograph was intended for arousing erotic Feelings, but they may have a tendency towards it. It is in such eases alone that the Courts are required to go into the question of finding whether the subject-matter charged as obscene has a tendency to deprave and corrupt whose minds are open to such immoral influence and in whose hands the publication is likely to fall. If evidence on the record indicates that a writing or a picture was intended to arouse sexual desire the further enquiry, about its likely effect on the persons who are open to immoral influences and in whose hands the publication is likely to fall, becomes unnecessary. In thepresent day society in India a book or a publication which deals with such matters cannot per se be said to be obscene. Great emphasis is being laid on family planning and in that connection it has become absolutely necessary to impart education about sex to the masses. Even so the books dealing with sex matters are to be so composed that they do not cross the bounds of decency and do not tend to become pornographic. Even a slight variation in the treatment of the subject in a book dealing with sex matters, from the correct path may have the effect of converting it into an obscene book.
19. It is in the light of above discussion that we have to see whether the four books, object of which is to place before its readers various methods for obtaining sexual gratification are obscene or not. The respondent claims to have translated the well known works of Vatsayan Kamsutra, Koka's Rati Rahasya, Kalyanmal's Anang Rang and Ravishekkar's Jyotishacharya Panch Sahayak in Hindi for the benefit of married people. All these books have been divided into various chapters and have classified men and women according to their sexual potentiality. They describe how the man and woman should approach and some prescriptions have also given for obtaining greater sexual prowess- Needless to say that treatment of such a subject has got to be very cautious and circumspect as even slightest deviation from the path of rectitude in treating this subject will certainly have a tendency to deprave and corrupt those whose minds are open to immoral influences.
20. Although these books purport to be translation of the works of old writers, we find inherent evidence in them to show that the author did not intend to keep upto the path of a absolute rectitude in dealing with such a delicate subject. His intention did not appear to be to impart healthy sexual education to the masses but was to obtain greater circulation of these books by pandering to lascivious prurient or sexually precocious minds. The respondent admitted that the pictures which had been included in the books had no connection or reference to the subject-matters which have been discussed in the books. He also admitted that the original books which he translated into Hindi did not contain any nude pictures. He tried to explain this by saying that when the original books were written there was no photography at that time. The pictures in all these books show nude women in various poses. Some of them also show men and women embracing each other in a particular manner. One of the pictures depicts a man peeping towards a scantily clad, practically nude woman.
It is difficult to agree with the learned Sessions Judge that the expression of women and their poses in the pictures are not suggestive at all. The accused in his cross-examination admitted that he would not display such nudepictures in his house. When such pictures are included in a book which deals with intimate side of sex life, without any reference to the subject-matter, the only inference that can be drawn is that they have been included therein with an idea to arouse sexual desire in the readers. The author used these pictures as a cheap medium for obtaining greater circulation of the books. In the setting of the whole book the pictures included in all of them are certainly pornographic and as such obscene.
21. After considering the way in which the subject-matter of sex has been dealt with in all these books we very much doubt that these books serve any public good. The matter has not been dealt with on any scientific lines and it cannot be considered to be a piece of literature or art. We are also doubtful whether these books are calculated to serve any useful purpose. Since however we have come to the conclusion that the intention of the publisher in publishing these books was to arouse erotic feeling in the minds of the readers, as is evidenced by inclusion of the photographs, it is not necessary to go into the question whether the books would be obscene even if the objectionable pictures had not been there.
22. The inclusion of these pictures certainly render all the four books obscene.
23. The book entitled Kamsutra was marked 'for the benefit of married men and women only'. Rati Rahasya by Koka was marked by private circulation, absolutely confidential and for the benefit of married men and women. Similarly the book Panchsahayak was meant for married people only and absolutely confidential. No such remark was contained on the book Anang Rang. It was argued that because of these markings the books were meant for use of married people only and the pictures and the subject-matter of these books was not such which would produce any improper thought in their minds and as such these books could not be said to be obscene.
We are unable to agree with this argument. The markings made on these books are meaningless. Some of these books were being openly sold in market and no steps whatsoever had been taken to see that these books should reach the hands of married people only for whose benefit they purport to have been written. They were priced at Rs. 3/- to Rs. 5/- only and were most certainly likely to fall in the hands of young adolescent boys and girls. The markings made on these books also indicate that the author was conscious of the pernicious effect that these books may have on the minds of unmarried adolescents. We also do not agree that the photographs of the nature contained in these books were not intended to generate sexually impure and filthy ideas in the minds of the readers whether they be married or unmarried. In our opinion even if reasonablesteps had been taken by the publisher to see that the books circulated to married people only, these books still would have been pornographic in nature.
24. We therefore, disagree with the learned Sessions Judge and hold that in the circumstances and setting in which the pictures in the four books have been published certainly render them obscene. These books were meant to pander to the prurient taste of the public and to appeal to their baser instinct. These books again are not books of scientific nature and they cannot be described as works of literature either. They are merely collections of certain verses in Sanskrit by writers like Koka, Vatsayan, Jyotishcharya, Kalyan Mal into Hindi. The argument that the books are translations of the works of well known writers does not in our opinion afford a defence to the respondent in publishing an obscene book. In the first instance the petitioner himself admitted that the Sanskrit rendering of the books of the well known authors did not contain any nude or objectionable photographs. In the second place, it may be that the treatment of the subject by the well known writers at the time when they wrote their books may not be considered to be obscene in the setting of the society as it existed then but the circulation of their ideas in the context of the contemporary society may be considered to be obscene. It is also possible that a book which may be considered to be obscene in the contemporary social condition may not be so considered at some future date.
We therefore feel that the argument that the books are translation of the various works of authors of the past would by itself be not a defence to the charge of obscenity if the translated matter has a tendency to pander to the prurient taste in the context of the contemporaneous society. Since we have come to the conclusion that the very object with which these books have been published was to pander to the prurient taste of the public and to appeal to their baser instinct an offence under Section 292 I. P. C. has been committed by the respondent, and it is not necessary to express any final opinion on the question whether or not the treatment of subject matter of the book by itself is obscene or not.
25. Accordingly, we allow the appeal, set aside the order of the learned Sessions Judge acquitting the respondent. We convict him for an offence under Section 292 I. P. C. Since he is being punished on account of four books instead of five books as was done by the learned Magistrate, we sentence him to pay a fine of Rs. 400/-. In default of payment of fine the respondent shall undergo rigorous imprisonment for a period of one month. We restore the order made by the learned Magistrate regarding disposal of books Ext. I to Ext IV and their copies.