1. The two appellants were tried and convicted by the Chief Presidency Magistrate for an offence under Section 292, I. P. C. and sentenced each to three months' rigorous imprisonment and a fine of Rs. 1,000.
2. Accused 2 in the case is the keeper of a Press called 'Sri Andal Press'. This is situated in 175 Lloyds Road, Royapettah. Accused 1 is the printer and publisher of a book called 'Kama Leelai'. The book contains pictures of various postures of sexual intercourse with an explanatory note on the opposite page. It is clear from Ex. P. 5 filed in the case thaf accused 1 printed as many as 700 copies of the book. The two ledgers Exs. P. 2 and P. 3 seized by the police show the number of books sold by accused 1. It is clear therefore from these two documents that accused 1 has printed and published these books for the purpose of sale. In fact, this is not seriously disputed, though it is stated that the sale was intended only for adults. Even so these books were undoubtedly printed and published for sale.
3. The prosecution case is that these are obscene books and therefore fall within the mischief of Section 292, I. P. C. The learned Chief Presidency Magistrate after referring to the various decisions cited before him has in a well considered judgment held that they are obscene. The main question therefore in the appeal is whether these books are obscene within the meaning of the term in Section 292, I. P. C.
4. The word 'obscene' is not defined in the Code. The natural and ordinary meaning of the term as given by the dictionaries is this :
'Webster's New International Dictionary: Obscene: Offensive to chastity or modesty; expressing or presenting to the mind or view something that delicacy, purity and decency forbid to be expressed;' impure, as, obscene language, obscene pictures.
Oxford New English Dictionary: Obscene : Offensive to modesty or decency; expressing or suggesting unchaste and lustful ideas; impure, indecent, lewd,
5. It is therefore a question of fact in each case whether a particular book falls within the meaning of this word. In this case a perusal of the book will convince anyone that it falls within the meaning given above. The book therefore is obscene and the offence is clearly made out.
6. It is contended by the learned counsel for the appellant that this is a matter which falls more within the scope of Act 56 of 1951 (the Press Objectionable Matter Act, 1951), & a proceeding against the appellant for an offence under Section 292, I. P. C. really amounts to an evasion of the provisions of that Act. The provisions in the above Act regarding the publication of books which contains any objectionable matter and which as per Section 3(6) of the Act include publications which are grossly indecent or obscene are contained in Section 11 and it only deals with the forfeiture of those books to the Government. There is nowhere in that Act anything to indicate that Section 292, I. P. C. is either abrogated or superseded. In my view the prosecution of the appellants for an offence under Section 292, I. P. C. does not in any way amount to evading the provisions of Act 56 of 1951.
7. It is next contended that there are several such books which are published and which are under circulation and those publishers have not been prosecuted. In support of that, certain exhibits have been filed by the defence advocate. The fact that other publishers of similar publications have not been prosecuted does not mean that the booh in question does not fall within the scope of Section 292, I.P.C. We are concerned here only with the question whether this book is an obscene publication within the meaning of the term under Section 292, I. P. C. The argument of the learned counsel in my opinion is without force.
8. It is further contended that by this prosecution the accused must have been deprived of their rights to have the matter decided by a jury in accordance with the provisions of Act 56 of 1951. That Act is intended mainly tot provide against the printing and publication off objectionable matter. Its object is to prevent and not to punish. As already stated that Act does not in any way repeal any of the provisions in the Indian Penal-Code. Act 56 of 1951 is no bar to tne prosecution for an offence under Section 282, I. P. C. The contentions in my opinion of tne learned counsel fail.
9. But so far as accused 2 is concerned, there is no proof that these books were printed in his press except what is printed on the books as to where they are printed. The presumption which applies under Section 7 of Act 25 of 1867 to the printer and publisher does not apply to the keeper of a press. Apart from Ex. P. 5, the presumption under Section 7 of Act 25 of 1867 makes it clear that accused 1 is the printer and publisher of these books. There is no such presumption against the keeper of a press. No evidence has been let in that this was printed in this press. It is true that accused 2 admits in his statement that he was the keeper of the press and that at the time when the copies of the book in question were printed, he was out of Madras. He also admits that they were printed in his press for sale. It is a well recognised principle that when the prosecution does not make out a case against an accused, no question shall be put to the accused under Section 342, Cr. P. C. and any answer that he might give cannot be used to fill up the gaps in the prosecution case. The case therefore against accused 2 that he was the keeper of the press in which this book was printed has not been proved and the conviction and sentence of accused 2 are set aside and he is acquitted. The fine if paid will be refunded.
10. So far as accused 1 is concerned, I have already pointed out that there is a presumption under Section 7 of Act 25 of 1867 and there is also Ex. P. 5 which clearly shows that he was the printer and publisher. I have already held that the book is an obscene one within the meaning of the term in Section 292, I. P C. His guilt is therefore established beyond all doubt. I therefore confirm his conviction. As regards the sentence, the learned Chief Presidency Magistrate observes: 'The accused show no signs of repentance and are bent upon printing and selling pornographic publication.....' Even so in view of the undertaking given by the learned advocate for the accused that he shall not yrint any more copies extra I think that the ends of justice will be met by sentencing him to the period undergone and a fine of Rs. 500, in default 2 weeks rigorous imprisonment.
11. With these modifications the appeal ofaccused 1 is dismissed, while the appeal ofaccused 2 is allowed.