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Kailash Chandra and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1932Cal651
AppellantKailash Chandra and ors.
RespondentEmperor
Cases Referred and Emperor v. Hari Singh
Excerpt:
- .....the prosecution witnesses what passages they found obscene or in what respect they found the book obscene and ' i fail to see how there was any material prejudice to the defence. i note that in the case of empress of india v. indarman [1881] 3 all. 837 the same objection was raised but not given effect to though there was only one obscene passage in the book. however the report does not give the particular circumstances in that case nor the grounds on which this objection was overruled. for the prosecution in this connexion the case of kherode chandra boy v. emperor [1912] 89 cal. 877 has been referred to in which the obscene passages in the book were not indicated in the charge, but it must be allowed that in that case this point was not raised and the subject-matter was a poem.....
Judgment:

Jack, J.

1. This Rule has been issued upon the Chief Presidency Magistrate of Calcutta to show cause why the convictions of the petitioners should not be set aside or why such other or further order should not be made as to this Court may seem fit. The petitioners have been convicted of offences under Section 292 read with Section 120-B, I. P. C, on a charge of criminal conspiracy to publish, sell and distribute an obscene book (viz)., 'Ramsdar Atmakatha' in two editions referred to as editions 3 and 4. The first ground on which the Rule has been issued is that in view of the aims and objects of the author expressed in the preface and other chapters of the book the Magistrate ought to have held that the book is not obscene. The second ground is that on a valid and legal construction of the book in question the learned Magistrate ought to have held that the book does not come within the mischief of Section 292, I. P. C, and the third ground is that the sentences are too severe.

2. The learned advocate for the petitioners started by addressing as on the ground that the charge is bad inasmuch as the particular passages in the book characterized as obscene have not been indicated in the charge. I do not think however that we ought to interfere with the order of the learned Presidency Magistrate on this ground inasmuch as, though it was a ground of the petition for revision, the learned Judges who issued the Rule did not think it necessary to examine the record in order to satisfy themselves as to the regularity of the proceedings in this particular, and the learned Magistrate had no opportunity of commenting on this objection to the proceedings. Moreover it does not appear that this objection was raised at the outset of the trial. It was raised during the argument. But in any case I should not be inclined to interfere in revision on this ground inasmuch as I do not think that the petitioners were really prejudiced in their defence by this omission if, in the circumstances of the case, it can be described as an omission for the prosecution have maintained throughout that it is the book as a whole that is obscene and that there is no defect in the framing of the charge. In this connexion reference has been made to the English Law as to indictments in such cases. Under the English Law: vide Charles Bradlaugh and Annie Besant v. Beg [1878] 3 Q.B.D. 607 all particulars had to be set out in the charge. Then under the Libel Law Amendment Act of 1888, Section 7, all that was necessary was that the book should be referred to in the charge and deposited with particulars showing in what parts of the book the obscene passages occurred. It is complained that not even this was done in the present case. No doubt it would have been more in accordance with law if some attempt had been made in the charge to indicate in what respect exactly the book was obscene. But in the circumstances of the present case I think that this was sufficiently obvious and that the petitioners have not been prejudiced. In the book a fictitious person Rameshada describes his sexual adventures. The prosecution case is that this series of descriptions of sexual episodes loosely grouped together is obscene. It is urged that in the circumstances the defence witnesses could only say that the book was not obscene and that the prosecution witnesses could not be examined as to particular passages. The book however is short and there was no difficulty in the defence asking the prosecution witnesses what passages they found obscene or in what respect they found the book obscene and ' I fail to see how there was any material prejudice to the defence. I note that in the case of Empress of India v. Indarman [1881] 3 All. 837 the same objection was raised but not given effect to though there was only one obscene passage in the book. However the report does not give the particular circumstances in that case nor the grounds on which this objection was overruled. For the prosecution in this connexion the case of Kherode Chandra Boy v. Emperor [1912] 89 Cal. 877 has been referred to in which the obscene passages in the book were not indicated in the charge, but it must be allowed that in that case this point was not raised and the subject-matter was a poem consisting of only 28 stanzas, so that that case is not * sufficient authority for holding that there is no need to specify the particular obscene passages in the charge. However I think that each case must depend upon its particular circumstances and holding as I do, that in this case the accused have not been prejudiced there is no reason for interference with the decision in revision more especially as the Rule was not granted on this ground.

3. There is no substance in the first ground on which the Rule was granted, namely, that in view of the aims and objects of the author expressed in the preface and other parts of the book the Magistrate ought to have held that the book is not obscene, as the motives that the petitioners had in publishing the book do not prevent it from being obscene if the descriptions are in themselves obscene. The motive may be taken into account as regards the question of sentence; but whether it is obscene or not depends on the material itself and not upon the reasons for its publication. Where a man publishes a work manifestly obscene he must be taken to have intended the inevitable consequences. In this connexion the case of Emperor v. Hari Singh [1905] 28 All. 100 may be referred to.

4. The next ground is that on a valid and legal construction of the book in question the learned Magistrate ought to have held that the book does not come within the mischief of Section 292, I. P. C . Lord Cock-burn, C. J., in Reg. v. Hecklin [1863] 3 Q.B.D. 360 gives as the test of obscenity:

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.

5. Judged by this criterion I think the learned Magistrate was right in finding the book to be obscene for the reasons given by him. (His Lordship then discussed contents of the book and discharged the Rule).

Mitter, J.

6. As it is a case of some importance to the community I would like to give my reasons for agreeing with my learned brother in the judgment he has just delivered. The petitioners who have obtained this Rule were charged along with one Nagendra Nath Mazumdar with criminal conspiracy for the purpose of printing, publishing, distributing and selling an obscene book named Ramsdar Atmakatha ' or the autobiography of Ramesdada before the Additional Presidency Magistrate of Calcutta. The petitioners Kailash Chandra Acharjya and Promotha Nag have been convicted under Sections 292 and 120-B, I.P.C. and have been sentenced to rigorous imprisonment for three months each and to pay a fine Rs. 100 each. The petitioner Phanindra Chakravartee has been convicted under Sections 292 and 120-Band has been sentenced to rigorous imprisonment for two months and to pay a fine of Rs. 50. The. petitioner Lokesh Chandra Acharjya has been ?ordered in consideration of his youth to execute a bond for Rs. 100 with one surety for the same amount to be of good behaviour for one year. He has also been convicted along with the other petitioners under the same section. Nagendra has been acquitted. The main question for consideration in this Rule is whether the book is an obscene publication and comes within the mischief of Section 292, I. P. C. The petitioners called a number of witnesses to show that it was not an obscene book. They contend that the publication of the book had the object of creating an impression against social vices in Bengal and the writer had a twofold object in view which will be detailed hereafter. The prosecution has been relieved from proving publication as the petitioners Kailash and Promotho accepted the responsibility for the publication of the book.

7. The learned Magistrate has in a careful and well-written judgment proceeded to deal with the question in controversy on the basis of the impressions left on his mind by reading the book himself and ho is of opinion that the book does come within the mischief of Section 292. The propriety of the convictions and sentences has been challenged by Mr. Charuchandra Biswas who appears for the petitioners in an able and closely-reasoned argument on several grounds. He contends in the first place that as the prosecution has not specified particular passages in the book as being the offending passages the prosecution must fail. It is said that it is not enough to state that the book is obscene but that the prosecution must allege which portions are obscene, otherwise the defence is considerably handicapped. In support of this contention he has relied on the case of Charles Bradlaugh and Annie Besant v. Reg. [1878] 3 Q.B.D. 607 In this case it was held that in an indictment for publishing an obscene book, it is not sufficient to describe the book by its title only, for the words thereof alleged to be obscene must be set out; and if they are omitted, the defect will not be cured by a verdict of guilty, and the indictment will be bad either upon arrest of judgment or upon error. Since this case it appears that the law in England was changed by the Law of Libel Amendment Act 1888, Sections 51 and 52, Vict. C. 64, Section 7 and it is no longer necessary to set out in the indictment the obscene passage in full; but particulars sufficient to enable the prisoner to know what passages are alleged to be obscene must be handed to the clerk of the Court with the indictment, unless they have already been deposited as an exhibit to the depositions. Under the Law of Libel Amendment Act, 1888 just referred to particulars showing precisely by reference to pages, columns and lines in the part of the book in which the obscene libel is to be found must also be furnished. It also appears from Form No. 23, Indictments Act, 1915, 5 and 6, George V. C. 90 that in an indictment for publishing obscene libel particulars to specify pages and lines complained of where necessary as in a book must be given. It also appears from the case of Bex v. Barraclough [1906] 1 K. B. 201 that particulars showing what part of the document already in the custody of the clerk of the assize are relied upon as being obscene libel. The English authorities therefore support the contention of the petitioners. In answer to this contention Mr. Khundkar, the learned Deputy Legal Remembrancer, who appears for the Grown argues that this contention does not find any support from Indian authority and refers to the case of Kherode Chandra Boy v. Emperor [1912] 39 Cal. 377.

8. It does not appear however that the point was raised in that ease. The only case in which the point seems to have been raised is the case of Empress of India v. Indarman [1881] 3 All. 837. The point was overruled but as no reasons are given for the rejection of the contention regarding the insufficiency of the charge the case is of no assistance to us. It is next contended by Mr. Khundkar that objections were never taken at any stage that the charge framed was bad for vagueness, indefiniteness or lack of details. It appears that during the course of the argument the Public Prosecutor referred to the offending passages and the petitioners contend that they had no opportunity of calling evidence to show that the passages pointed out were not obscene. It appears however that the petitioners had called witnesses who said that there was nothing obscene in the whole book which must be taken to include the offending passages pointed out by the Public Prosecutor. It does not seem to me therefore that the petitioners have been prejudiced in any way. It is not therefore necessary to consider the contention of the Grown that the defect is cured by the provisions of Section 537, Criminal P. C. It has further been contended that it was not necessary to refer to particular passages in the charge as the case of the prosecution was that the whole book from cover to cover was obscene. I do not think that the prosecution has been able to substantiate this but having regard to the fact that there has been no prejudice and the further fact that the Rule was not issued on this ground I am not inclined to interfere with the conviction on this defect in the charge. It is next argued that so far as the language of the book is concerned there is nothing in it to which exception can be taken and the Deputy Legal Remembrancer concedes that that is so. It is suggested however on behalf of the Crown that the situations and scenes which have been described in the book are of such a character that they stamp the whole publication as an obscene publication. Mr. Biswas on the other hand argues that that is taking a very exaggerated view of the character of the book. He points out that there is a twofold object which the writer has in view.

9. It purports to be autobiography of a fictitious person ' and is unabashed revelation of all that is supposed to have happened to him. The writer fell in the path of temptation in various stages of his career which he described; he warns the reader of the various pitfalls and dangers attending such a career. The second object which is disclosed on the other part of the book is to expose the moral delinquency of some people occupying high position in life who pass muster but are not really what they are supposed to be in public. It is said therefore that the author has noble objects in, view and that there is no encouragement to vice or incitement to debauchery or license. The object which the writer has in view is really immaterial. If the publication is an obscene publication it would be no defence to say that the law was broken for some wholesome and sulutary purpose. As has been pointed out in the case of Reg. v. Hicklin [1968] 3 Q.B.D. 360 p. 372 of 3 R. B. D. that the wholesome and honest maxim that you shall not do evil that good may come is applicable in law as well as in morals. The decision of the rule therefore must turn on the question as to whether the publication in question is an obscene publication within the meaning of the Penal Code. In the leading case of Beg. v. Hicklin [1968] 3 Q.B.D. 360 just referred to Cockburn, C. J., laid down the test of obscenity as follows:

And 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.

10. The test to be applied is as to whether the book would suggest to the minds of the young of either sex, or even to persons of more advanced years thought of a most impure and libidinous character. This view has also been taken in the Indian Courts; see Empress of India v. Indarman [1881] 3 All. 837; Queen-Empress v. Parashram Yeshwant [1896] 20 Bom. l93 and Emperor v. Hari Singh [1905] 28 All. 100. That this is the true legal position has not been and cannot be disputed by Mr. Biswas but he contends that there is nothing in the book in question which can be regarded as obscene, as understood by the authorities to which I have just referred. (His Lordship then proceeded to deal with the book keeping in mind the test of obscenity just enunciated in accordance with the authorities both English and Indian and concluded). I have no doubt in my mind that the whole of this chapter has a harmful influence on immature minds. Mr. Biswas argued that the reading of this did not exercise any influence on his mind. The test is not whether the book has a harmful effect on men of wide culture and character, but the test is how does it affect the young of either sex men or women whose minds are impressionable.. (His Lordship after further considering the details of the book agreed with Jack, J., in discharging the Rule).


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