Pritam Singh Safeer, J.
(1) This petition has beenpreferred under sections 439 and 561-A of the Codeof Criminal Procedure against the judgment of theAdditional Sessions Judge, Delhi, dated the 31st ofAugust, 1967. By that judgment the conviction ofthe petitioners under section 292 of the Indian PenalCode and sentences imposed on them by the trial courtin terms of its judgment dated 7th of March, 1967 wereconfirmed.
(2) I have heard Mr. V.K. Krishna Menon for overthree days and Mr. Vir Sen Sahni has also addressedme in one of this set of seven similar petitions. DurlabSingh is the common petitioner in all of them. He isaccompanied by either of his sons in each case.
(3) While taking its strides towards civilization thehuman race has through different ages and climes beendeveloping certain standards of decency and morality.Those standards are the anchor sheets of decent existence.The framers of the Constitution of India were not forgetful of that aspect while enacting clause (a) of Article 19(1) of the Constitution. By that clause all citizenswere granted right to freedom of speech and expression.Sub-article (2) of Article 19, however, regulated it byproviding:
'NOTHINGin sub-clause (a) of clause (1) shallaffect the operation of any existing law, or preventthe State from making any law, in so far as suchlaw imposes reasonable restrictions on the exerciseof the right conferred by the said sub-clause in theinterest of the sovereighty and integrity of India,the security of the State, friendly relations withforeign States, public order, decency or morality,or in relation to contempt of court, defamationor incitement to an offence.'
(4) It is clear that while conferring the right in termsof Article 19(1)(a) the operation of any existing lawprotecting decency or morality or of any law to beenacted for that purpose was saved.
(5) Clause (a) of section 292 of the Indian Penal Code,as it stood at the time of the petitioners' prosecution,with which lam concerned is:
(A)sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, orfor purposes of sale, hire, distribution, publicexhibition or circulation, makes, produces orhas in his possession any obscene book, pamphlet, paper, drawing, painting representation orfigure or any other obscene object whatsoever, or
(B)to (c)shall bepunished with imprisonment of either description for a term which may extend to threemonths, or with fine, or with both.
EXCEPTION : This section does not extend toany book, pamphlet, writing, drawing or paintingkept or used bona-fide for religious purposes orany representation sculptured, engraved, paintedor otherwise represented on or in any temple, oron any car used for the conveyance of idols, or keptor used for any religious purpose.'
(6) Clause (a) is in two parts. The first is:
'SELLS,lets to hire, distributes, publiclyexhibits or in any manner puts into circulation. . '
(7) The second says:
'ORfor purposes of sale, hire, distribution,public exhibition or circulation, makes, producesor has in his possession. . . .'
(8) Both these parts go with 'any obscene book, pamphlet, paper, drawing, painting, representation orfigure or any other obscene object whatsoever.'
(9) The accusation against the petitioners was in respect of an article published in the issue of the IndianObserver dated 3/09/1965. It stands admittedly established that Durlab Singh, petitioner, was itseditor and Kulbir Singh, his son, the copetitioner, wasthe printer and publisher of the paper.
(10) The article runs under the caption: 'Grown upwoman teaches the lesson of sex to a teenager'. Afterstating their reasons the two courts below, have foundthat the article contains obscene matter Mr. V. K.. Krishna Menon, counsel for the petitioners, raised several contentions. He submitted thatthe values of decency and morality have been undergoing a fast change and even in terms of the law laiddown in Ranjit D. udeshi v. The State of Maharashtra, : 1965CriLJ8 , the petitioner cannot be held to havecommitted any offence punishable under section 292 ofthe Indian Penal Code. He has also cited Shri Chandrakant Kalyandas Kokodkar v. The State of Maharashtra andothers, : 1970CriLJ1273 . He has placed his relianceupon Regina v. Clayton and Halsey, (1963) 1 Qb 1963to urge that the case under section 292 has to be provedlike any other case and sufficient evidence should havebeen produced to prove the guilt of the petitioners.
(11) At one stage he argued that clause (a) of section 292 was ultra virus of Article 14 of the Constitutionbecause the Exception contained in that section provided discriminatory escape from the rigors of the provision. I told the learned counsel that in the state inwhich section 292 existed (this provision has beenamended in 1969) at the time when the petitioners wereput on trial, it was available to all accused persons toset up any plea covered by the Exception as a defenseto their prosecution. If a provision applies equally topersons similarly situated, then it cannot be held asbeing discriminatory.
(12) Before the Supreme Court the plea raised in RanjitD. Udeshi's case was that the section was ultra viresof Article 19(l)(a) of the Constitution. The SupremeCourt did not accept it.
(13) These arguments were not pressed.Obscenity as such was not defined anywhere andthat was why Hidayatullah, J. (as he then was), whiledealing with the question as to what would be obscene,after taking into consideration the observations madeby Cockburn C.J. in Queen v. Hicklin (1868) 4B 360,laid down that as to what is 'obscene' has to be determined by the courts. He observed in : 1965CriLJ8 :-
'THEIndian Penal Code does not defins The word 'obscene' and this delicate task of how todistinguish between that which is artistic and thatwhich is obscene has to be performed by courts.and in the last resort by us.'
(14) It was noticed in that judgment that the book 'LadyChatterley's Lover' contained over a dozen descriptionsof sexual intimacies. It was also noticed that thesexual intercourse each time was described with greatcandidness and in prose as tense as it was intense andof which Lawrence was always a consummate master.In order to consider as to whether what was said inLady Chatterley's Lover was obscene or not the SupremeCourt concerned itself with the distinction between thatwhich may be sex and nudity in art and literature andthat which may be obscene.
(15) The learned counsel for the petitioners relied uponthe case reported as Shri Chandrakant Kalyandas Kakcdkar v. The State of Maharashtra and others, (1969)2 Sc 687. That was a case in which the court wasconcerned with certain descriptions of the meetingsbetween Neela and Nishikant and with the passages onpages Iii, 112, 114, 116, 118-121, 127, 128, 131, and134, which had been found obscene by the High Court.The view taken by the Supreme Court was that, aftergoing through the impugned passages, there was nothingin them which could be said to deprave or corrupt thosein whose hands they were likely to fall: nor could it besaid that any of these passages advocated lasciviousnessdepraving and corrupting the morals and adolescentyouth. The test which persuaded their Lordships totake the view in that case was, thereforee, that if thematerial with which the court may be concerned is suchwhich may be advocating licentious behavior depraving and corrupting the morals of the reader, then thatwould be obscene. In that particular case it was heldthat the material was not such. It is clear after perusingthat judgment that in every case it is the particularmaterial which is to be gone into carefully for comingto the conclusion whether an offence under section 292 of the Indian Penal Code has been committed or not.
(16) The learned counsel relied upon United StatesSupreme Court Reports (Lawyers' Edition) Vol. 1,(Published in 1956-57) and referred to head-notes 8and 9 occurring in Samuel Roth v. United States ofAmerica, at p. 1508^). The case starts on page 1498.The learned counsel laid emphasis on the following:
'HOWEVER,sex and obscenity are not synonymous. Obscene material is material whichdeals with sex in a manner appealing to prurientinterest. The portrayal of sex e.g., in art, literatureand scientific works, is not itself sufficientreason to deny material the constitutional protection of freedom of speech and press. Sex, a greatand mysterious motive force in human life, hasindisputably been a subject of absorbing interestto mankind through the ages; it is one of the vitalproblems of human interest and public concern'.
(17) It was submitted that there being a constitutional rightin respect of freedom of speech and expression, theprotection extended to portrayal of sex. The argument forgets sub-Article (2) of Article 19 of the Constitution of India. Obscenity enjoys no constitutionalprotection.
(18) The learned counsel then relied upon R. v. MartinSeeker Warhurg Ltd., and others, reported as 1954 2 All.E.R.. 6830. It was held in that case that 'inapplying the test of obscenity laid down in R. v.Hicklin, (1868) L.R. 3 Qb 371, the jury must decidewhether the tendency of any publication alleged to beobscene is to corrupt and deprave those whose mindsare open to immoral influence and into whose handsthe publication may fall at the time when it is publishedor in the future.'
(19) I will go a' step further and say that obscenity maybe adjudged in the light of the influence which theimpugned matter may have not only on the minds ofpersons already depraved or abnormal, but also on theminds of the persons who may be completely unintroduced to sex and may be innocent. Human mind hasan inherent attraction for sex. If any material incitesextreme immoral perversities in respect of sexual indulgence then it incites the impulses to depravity and degeneration. Such material would be undoubtedly obscene.
(20) It was submitted on the basis of Regina v Claytonaand Huhey,reported as 1963 1 Qb 1630,that there should not only be the opinion of the officersconcerned but there should also be other evidence inthe case. This submission is firstly errbnous on facts.The evidence is there apart from the opinion expressedby the police officers. That evidence has been subjected to cross-examination. No defense has beerproduced. In the aforementioned case it was noticedon page 167 that the publication in that case had beenmade to experienced police officers employed in theObscene Publications Department at New ScotlandYard. It was their job to make test purchases such asthose in question. In this case the publication is tothe world at large and not to any experienced, policeofficers. It is remarkable that at p.' 168 it was observedthat 'the degree of inherent obscenity is, of course, veryrelevant, but it must be related to the susceptibilityof the viewer'. The observations in that case do notaid the argument that the material in this case is notobscene. The courts below were under an obligationin terms of the law laid down in : 1965CriLJ8 tojudge whether the materials placed before them throughthe sworn testimony of the witnesses, subjected to crossexamination, were obscene or not. The courts werealso to judge for themselves whether the requirementsof section 292 were satisfied or not for recording conviction. On examining the materials concerned andafter considering every aspect as well as the reasonsadvanced by the courts below, I find that the impugnedconviction is well founded.
(21) It has been submitted that nudity should not havebeen the influencing factor for concluding that the petitioners were guilty.
(22) Nudity in itself cannot under all circumstancesbe classified as obscene. As the Supreme Court judgment fixes the responsibility of the court to adjudgeobscenity in the context of the prevailing values in. respect of decency and morals, Mr. Menon said that whatwas indecent or immoral forty years ago when he wasyoung was longer indecent now. His contention, however, fades Out in the face of the article itself with whichI am concerned. The test of obscenity is whether itexcites or not the average person enjoying a normal state of mind to have recourse to depravity as e matterof degenerate pleasure. If the material inviting section 292 is such that it would excite such minds which areunintroduced to immorality to incur carnal desiresseeking immoral satisfaction, then such material wouldbeyond any doubt be obscence. The very caption ofthe impugned article would catch the eye of an average-minded reader and even of a person who has neverknown what sex is. I am not at all concerned with theeffect of this article on the mind of a depraved person.A degenerate person, according to his circumstances,may already be having sufficient knowledge of thataspect of human degradiation of which the averagereader may have no knowledge. The caption of the article will attract any innocent teenager to a curiosityof intimately reading the article as to how a grown upwoman teaches sex to a young innocent person. Anymarried woman yet not dreaming of a teenager maybe persuaded to such a future as incited to by the article.
(23) Human nature is to copy things. Those who donot know are curious to know. Obscenity operatesthrough human nature.
(24) Men and women are born of sex. Sex is theirinstinctive attraction. Its sanctity has been regulatedby the system of marriage. Sexual intimacy is essential to the procreation of human genii. Whatis immoral then To carry it a little further : Whatwould be obscene The short answer is that any materialexciting to perversion and degradiation in matters ofsexual behavior would be obscene.
(25) Public depletion of sexual perversities crosses thenorm of morality and containing an incentive tosimilar performances, such depletion in certain circumstances may surely be obscene.
(26) Obscenity is no advance of civilization. It is itsnegation. It puts the mind into reverse gear. It incites, not inspires, men and women to cross back notto the bird and beast age, but also to travel much beyond.The resulting degeneration incites rashness and perversity and tends to destroy the. faculty to distinguishbetween what is moral and what is immoral and whatis decent and what is indecent.
(27) SUB-ARTICLE (2) of Article 19 of the Constitutionof India did not preserve only protection to the operationof existing laws relating to decency and morality butalso contemplated the necessity of such protection in respect of similar laws to be made thereafter. Section 292 of the Indian Penal Code, before and after theamendment of 1969, is covered by that protection.The concern and anxiety of the framer? of the Constitution of India expressed through the concerned phraseology employed in Sub-Article (2) of Article 19 provides in itself a back-ground in the context whereofobscenity is to be determined in the prevailing agein this country.
(28) Even if the extremities, to which human indulgencemay be extending in any other country, are given fulllatitude, the concerned material still remains hopelesslylewd and unforgivably obscene. There is no educativeor artistic material in it. There is not even any distantrelationship between art and obscenity.
(29) The production which has ultimately to be classified under either of them emanates from the functioning of mind and intellect which functioning in the psychicprocess completely parts company before it finds expression into poetry, prose, painting or dancing.The performance is first in thought. Before they ripeninto their expressive forms, art end obscenity partcompany in the psychic region. Art can never beobscene. Cosmic care is observed at its source.obscenity, contrary to that, is born out of perversityand has a degenerate purpose in it.
(30) Nudity as such has nothing to do with it.
(31) In case of obscene productions purposeful perversity and criminal immorality in complete disregard ofany decency are decided upon firstly in a particularmental state to deliberately bring into existence thematerials which may incite those who may come acrossthem to practice the suggested experiences.
(32) Obscenity is the product of a fertile mind gonenarrow and perverse. The author while sleeping atnight or dreaming through the day starts getting hallucinations through immoral impulses. Like otherexpressions, which first evolve their shapes in the mind, the obscene matter has necessarily to pass through thatprocess. Its extreme forms are preconceived. Themind prepares to venture on them after deliberate consideration. What kind of it (obscenity) will producethe maximum effect to obtain money or reputation orboth of them. is the consideration. There is experimentation in the mental laboratory and then obscenityis planned out.
(33) Art is born out of sublimity. Not all art is original.
(34) Where it is original, it is born out of a unique combination in which the mind functions subdued by intellect and both are dominated by a contact of the soulwith the Invisible Supreme.
(35) How were the first strains of music born? Leaveaside words. How were the Ragas born? How wasit revealed to man that with every changing moment inthe day and the night the musical strains conformingto the unseen and unknown keep on changing in infinitevariations in their expressions. It is well-known thatparticular Ragas and Raganies pertains to differentfractions of time.
(36) Why is it that the Ragas and Raganies producedifferent effects. Those effects are received both bythe mind as well as the body. Why is it that when theears are listening the body goes on passing throughdifferent feelings? Why in different countries there aredifferent compositions of music?
(37) Turning to painting, no one paints without imagining what is going to be painted or unless there is compelling inspitation dawning upon the person. Where from that inspiration comes except from the Invisible?The same is true of poetry.
(38) Nothing is born in. original art which is not immediately traceable to a purified state of brain cells operated by cosmic contact with the universal and supremepower which alone revesis through them, that which istill then unknown. All original art may provide guidanceto various copied patterns. The invisible contact iscontinuous. The techniques in music, painting andpoetry may go on changing, but the breath continuesto come into them from the same source. In the latestphase, poetry, not only painting, has become dimensional.
(39) Art and obscenity part company before they areexpressed.
(40) The learned counsel for the petitioners has submitted that the impugned material has educative value andit imparts knowledge. Obscenity is the perversity ofexisting knowledge. It has no educative value.
(41) In the cases cited before me, it has been rightlyemphasised that it will not be the intention of the authorof the material which may have to be looked into toconclude whether the offence under section 292 hasbeen committed or not because it would be a matterfor judicial determination to find as to whether theimpact of the impugned material on the average humanmind is such or not as to create human degradiationand an urge to sexual immorality where it may havenever existed before. The concerned article is seethingwith passages which are clearly obscene. The standtaken on behalf of the petitioners that the article waswritten as a warning and was educative in its naturecould be justified by the counsel only on the submissionthat he was performing his duty.
(42) The article describes a young man, a teenager, ashaving been entraped by a grown up married woman.Petitioner No. 3, the editor, who filed a written statement in his defense before the trial court, never daredto state as to who was the author of the article.His statement recorded under section 342 of the Codeof Criminal Procedure contains admissions which fastenhim with editorial responsibility for circulating thearticle. Why did he circulate the article if not for thepurpose of gaining ground with such readers who couldbe caught in the net of contributing their funds to futurepublications of similar articles? Such persons couldnecessarily not be persons with depraved minds. Persons innocent and unintroduced to sex could have beenexcited by such writing to look for its like in future.The author of the article, whose name petitioner No. 1has never been abb to disclose, but whose materialpetitioner No. 1, the editor, and his son, petitioner No. 2the printer and publisher, have publised, describes insensational words used by the young man the experiencewhich he went through. It is said in the article:-
'SHEwas a very lovable woman. She draggedme gently on her bed, embraced me, kissed meand asked me. 'Don't you know how the babiesare born? Kukoo (this was my pet name). 'Youare so silly a boy', she said. Then she removed herblouse and taking my hand to her belly she said'here is the place from where babies come out'.She moved my hand gently on her breasts and againkissed me. I was impressed by the deep affectionthat she showed........'
(43) How dangerously obsecene is this passage occurringin one of the most excitingly obscene articles, has to beimagined in terms of the reaction which it may createin an average mind. Let us take the case of a youngman, a teenager, unintroduced to sex. He must beseeing very many lovable women of grown up age.After having read this article as soon as he happens tosee such a lovable woman, he will imagine that be alsocan be embraced by her, kissed and dragged to bed.That may still fall short of obscenity, but then the ex-pelience provided by the description, how the womanremoved her blouse and took the hand of the young mandown to the place showing from where the babies comeout, is certainly one which would excite such a youngman as described above to throw all morals and decencycontemplated by sub-Article (2) of Article 19 of theConstitution to the winds. He will be saturated by acarnal desire to somehow seek some grown up woman,whose virginity may not be in the way and who maygive him the experience of moving his hands on herbreasts for taking then down to the spot of sexual indulgence. The concerned Article does not finish withthe passage reproduced above, and commented upon.The said passage records the first experience given tothe teenager by the grown up woman. During thecourse of that very first experience the teenager expressed his curiousity by asking her :-
'BUTwhere does the seed come from'?The article then proceeds to record as under:-
'SHEagain laughed and embraced me warmly.In this manner she pointed out the whole procedureof child bearing and child producing process,and while explaining it was only natural that sheunbuttoned my garments as she did her own. Ifelt quite fascinated.'
(44) In the passage quoted in the first instance, it is recordedthat she had removed her blouse. In the passage nowreproduced from the article, it is described how, whileimpressing the teenager, a woman is described as havingunbuttoned his garments as well as her own. Thereader is given a picture where surely the teenager isintroduced to the world of immoral sexual perversity.This is clear From the following passage in the article:
'Iwas attracted now to go to her home everyevening. Every evening she served me with daintysweets and food and made me to sleep with her inher bed and under one pretext or the other took offher own clothes as also mine. The continued provocation for a week enlivened in me a spark whichtoday I feel was what is called sex. But one weeks'course perhaps was not enough to arouse a teenager to an action. It was fairly long process.Even after her husband returned, I was called secretly by her and we slept together till a time camewhen she was able to arouse my hidden instinctsand mature my sex feelings and she was able toget what she actually wanted.'
(45) The article is manifestly lewd. Teen-aged boysand married grown up women are both drawn intoa net of incitement to carnal desires. The petitionershave preached unchastity and rank immorality. Thecounsel had to say that he was performing his duty whileaddressing me. He urged that the petitioners deserveto be acquitted. That also was his duty.
(46) In a situation where they were to adjudge the commission or non-commission of an offence under section 292 of the Indian. Penal Code, with the definition ofobscenity being absent, the courts below were of necessity charged woth the duty of adjudging the matter bythemselves. The Supreme Court's observation in : 1965CriLJ8 was -
'THEquestion does not altogether dependon oral evidence because the offending novsl and the portions which are the subject of the chargemust be judged by the court in the light of section 292, Indian Penal Cede, and the provisions ofthe Constitution.'
(47) I hold that the courts below recorded correct findingsin the discharge of the duty enjoined by the law as laiddown by the Supreme Court by which they were governedin terms of Article 141 of the Constitution of India.The publication in question excites carnal lust and islewd. It is apparently obscene and the convictioncalls for no interference.
(48) The question still remains as to whether the guiltdeserves to be sorted out between the petitioners ornot. It has been overlooked that petitioner No. 2is the son of petitioner No. 1. In that tie of relationship the father had the hold upon his young son. Thelure of wealth which the sale of the obscene matterwas bringing in was there. Still the guilt, though established for maintaining the conviction of petitionerNo. 2, calls for interference with the sentence imposedon him. He was not an altogether independent agentof his actions. His sentence is reduced to a fine ofRs. fifty only. The petition otherwise fails and isdismissed, in default of payment of fine he will undergo10 days R. I.