Seshagiri Aiyar, J.
1. The accused in this case has been charged with the offence of having printed and published for sale a Telugu booklet named `Vidi Natakam' The author is said to be Srinadha who lived in the middle of the 15th century, and who has written some classical books in the Telugu language. Certain stanzas in this book have been selected by the prosecution as having a tendency to deprave and to corrupt the morals of the readers. The defence was that the author was a writer of repute, that the diction in which the stanzas are written is not easily understandable by the ordinary reader, that they are of artistic and literary merit, and that there is nothing in the verses selected which could be taken exception to. It was also stated that the book has gone through a number of editions and that the republication was not an offence. The Magistrate agreeing with the defence set up acquitted the accused. The Government have appealed.
2. I am of opinion that the acquittal is wrong. I cannot help saying that the Magistrate, who apparently has taken great pains and has written a very elaborate judgment, has misdirected himself. I agree with the Magistrate---in fact the learned Public Prosecutor did not challenge in this Court the correctness of that conclusion---that the work in question was written by Srinadha. But it is no justification under Section 292 of the Indian Penal Code that the matter published was written by an eminent writer. In the 15th century when the book was written, the art of publication, as we understand it now, was not known. It may have been permissible among great men in those days to indulge in compositions of doubtful morality. But when a publication of that kind is reprinted and sold broadcast at the rate of one anna per copy so that it may be available to the man in the street, the question whether by this conduct the accused has not committed an offence against public morality and decency, assumes a different aspect. Further the Magistrate throughout the whole of his judgment seems to regard the opinion of learned men and pandits as conclusive upon a question of this kind. The opinion of men of the world and of persons who belong to the classes into whose hands this publication is likely to find its way is more entitled to weight than the judgment of scholars and of men of undisputed moral character. Looking at the question from this standpoint, there can be no doubt that the evidence given by the prosecution witnesses is more entitled to weight than the opinion of the defence witnesses. I agree with the Magistrate that these latter witnesses are all men of high character and of social standing. I say nothing about their competency to pronounce an opinion upon the literary and artistic merits of a work of this kind. But I am not prepared to accept their conclusions as correctly representing the effect which a publication of this kind is likely to have on the popular mind. Among the witnesses for the defence, defence witness No. 5 may be selected as being entitled to speak with some authority upon the probable impression which some of the stanzas in question may have upon the public. He is a first class Deputy Collector and Magistrate and has had large experience of the world. I shall, therefore, in considering the character of the stanzas take into account his views upon them. There is no definition of the term obscene' in the Indian Penal Code. But there can be no doubt that the test of obscenity is what has been laid down by Cockburn, C. J., in the well known ease of Reg. v. Hicklin (1868) 3 Q.B. Cas. 360 : 16 W.R. 801. (1). The learned Chief Justice says that the test is whether the tendency of the matter charged as obscenity is to deprave and corrupt the minds of those who are open to such immoral influences, and into whose hands the publication of the sort may fall. This definition of obscenity was accented by Jurdine and Ranade, JJ., in Queen-Empress v. Par ashram Yeshodul 10 Ind. Dec. 687. and by Ameer Ali and Pratt, JJ., in Sarat Chandra Ghose v. Ring-Emperor 2 CrI. L.J. 201. Following these decisions, I shall consider whether the stanzas, charged as being obscene, are of a character calculated to produce a pernicious effect on the minds of the persons into whose hands they might fall. It was strenuously pressed upon us by Mr. Narayanamurthi, who appeared for the accused, that the intention of the accused was not to encourage immoral tendencies, but to publish a classical work of a standard author in the true interests of Telugu literature. In the first place the question of intention is not germane to the consideration of an offence under Section 292 of the Indian Penal Code. What the Courts have to find out is not the intention of the publisher, but the effect the publication is likely to have upon the public mind. If intention is any test, as was pointed out in Empress of India v. Indarman (1881) A. W. N. 94 : 2 Ind. Dec. 549. it can only be gathered from the character of the matter contained in the book, and the publisher of such a work must be deemed to have intended the natural consequences of his act. Further, it can hardly be disputed that the avowed object of Vidi Natakam is to convey immoral ideas. Defence witness No. 1 says at page 48 that Vidi Natakam must have for its hero a Dheerodhathudu. It must indicate the love passion. An honourable wife should not figure as the heroine. The heroine should be a samanya, that is a stranger's wife who is not a professional prostitute, that is a stranger's wife who loves a person other than her husband. The witnesses both for the prosecution and the defence agree in substance with this description of Vidi Natakam. It is clear from this evidence that an honourable love is not what is intended to be depicted in these verses, and that the illicit passion of a libertine towards a married wife of another is the theme of these stanzas. Consequently there can be no manner of doubt that primarily the verses are calculated to engender lust and impure ideas in the minds of an ordinary reader, and when it is seen that the price is fixed so low as at one anna per copy so that it may reach the hands of as many as are capable of purchasing it. there is no room for any speculation as to the object or intention of the publication.
3. Now we shall consider some of the verses which have been objected to and see how far the test of Cockburn, C. J., applies to them. Before passing, I cannot help remarking that the translation furnished to the Court has not been accurate Mr. Osborne has placed in our hands a translation of the objected verses which we consider to be more in accordance with the spirit of the original composition than what the Court translator has given us. The first verse objected to is the 27th. The prosecution charges that the Telugu expression 'Manmadbuni Gropyamu Gehamu' is objectionable. The literal translation of the expression is: 'Cupid's secret home'. The defence theory is that the expression refers to the face of the damsel and not to any other part of her body. Looking at the context, I feel no hesitation in holding that the expression does not refer to the face of the girl but to a very objectionable part of her body. There are expressions in the stanza which are calculated to excite a libidinous desire in the reader. I may point out that Mr. Jayanti Ramayya, the 5th witness for the defence, concedes that the expression refers not to the face but to the private part of a female. The next verse which I shall consider is verse 37. A great deal of learned argument was addressed to us by Mr. Narayanamurthi on the meaning of the expression 'Dheerga Danda'. The Magistrate has considered the etymological meaning of the expression. Mr. Jayanti Ramayya says that he is unable to make out the true meaning of the author. I feel no doubt that the whole stanza is calculated to excite lust and to instil improper ideas into the minds of the reader.
4. The general trend of the stanza is this; The breasts of a woman unable to bear the beatings of the male have fallen down and have reached up to the navel. Thereupon further progress has been abandoned, according to the prosecution, because of the fear of punishment by a stick, (according to the defence) by reason of the proximity to a well. The defence contended that Dheerga Danda' is a misprint for 'Dheerghi Danda' (a deep well) and that what is indicated by the expression is the navel itself. In our opinion, that is not the correct meaning to be attached to the expression. It is not necessary to pursue the subject further, as we are of opinion that even apart from this reference to the punishment by a stick the earlier portion of the stanza is bad enough and is calculated to excite lust and evil passions. Stanza 43 is another of the objectionable ones, and we are satisfied that the reference in the stanza is to the private part of a woman. We are willing to give the benefit of the doubt to the accused so far as stanza 47 is concerned. It may be that an author of renown like Srinadha would not have that Lord Shiva should be addressed in the way suggested by the prosecution. It is not unlikely that the reference in that stanza' is to what poets refer to as Adhara Amirtham'. Similarly we are willing to concede that in stanza 30, the reference may be to the Uriya women, some of whom are in the habit of wearing a veil, and that the removal of the sari is from the face and not from any other part of the body. Even leaving aside these two stanzas, there can be no question that the general tenor of the verses objected to by the prosecution is to create an unholy desire and to engender illicit sexual passion in the minds of the reader; and having regard to the avowed object of the writing and to the fact that it has been placed within the reach of the poorest among the people, we are constrained to hold that the effect of the publication is to corrupt those whose minds are open to such immoral influences.
5. The fact that some of the verses are written in a style which is not easily understood is no justification at all. It is true that the style is somewhat difficult, but there can be no difficulty in a person who is acquainted with ordinary Telugu from grasping the general effect of the stanzas.
6. For these reason?, I would set aside the order of acquittal of the accused and convict him of an offence under Section 292 of the Indian Penal Code. Having regard to the fact that the accused has only republished what has already gone through a number of editions, and to the fact that the. book is by a renowned author, we do not think it necessary that a very severe punishment should be inflicted upon the accused. We must sentence him to pay a fine of Rs. 100 and in default to undergo simple imprisonment for six weeks. The copies of the books in his hands must be confiscated under Section 521 of the Criminal Procedure Code and he should band them over to the Crown.
7. I concur.