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Sukanta Halder (In Custody) Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 311 of 1951
Judge
Reported inAIR1952Cal214
ActsIndian Penal Code (IPC), 1860 - Section 292
AppellantSukanta Halder (In Custody)
RespondentThe State
Appellant AdvocateAjit Kumar Dutt, Adv.
Respondent AdvocateNirmal Chandra Chakravarty, Adv.
Cases ReferredQueen v. Hicklin
Excerpt:
- .....of the present proceedings was, to a considerable extent a obscene publication, and by reason of obscene matter in it. calculated to produce pernicious effect in depraving and debauching the mind of the persons into whose hands it might come.'7. further, it appears that the courts have, more often, restricted the use of the term obscenity to sexual immorality only. such matters as would tend to stir in persons, into whose hands such matter is ordinarily expected to reach, sex impulse which lead to sexually impure and lustful thoughts, are declared as obscene, attracting the jurisdiction of the court to ban out such publications. the true test is not to find out what depraves the morals in any way whatsoever, but what leads to deprave only in one way, viz. by exciting sensual desires.....
Judgment:

R.P. Mookerjee, J.

1. This is a petition for revision on behalf of the editor, printer and publisher of a Bengal Monthly Magazine 'Nara Nari' against a conviction by the Presidency Magistrate, Calcutta under Section 292 of the Indian Penal Code. The petitioner has been sentenced to rigorous imprisonment for two months and a fine of Rs. 200/-, in default to rigorous imprisonment for two weeks.

2. The principal question in this case is whether the impugned portions of the three issues of the magazine in question are obscene coming within the mischief of Section 292 of the Indian Penal Code.

3. The word 'obscene' has not been defined' in the Indian Penal Code. Section 292 of the Code, as it now stands, was introduced into the Code by the Obscene Publications Act (VIII of 1925) with a view to give effect to Article 1 of the International Convention for the Suppression of the Circulation of, Traffic in Obscene Publications, signed at Geneva on behalf of the Government of India in 1923. No attempt was made in the International Convention for defining the term 'obscene'. No successful at-tempt has yet been made by the Courts to define this term.

4. The tests to be applied for determining whether a particular object is obscene or not would depend on various circumstances. The idea as to what is to be deemed to be obscene has varied from age to age, from region to region, dependant upon particular social conditions, There cannot be an immutable standard of moral values. There being no definition in 'the Code, it not being possible to enunciate any, we may consider as to what tests should be applied to determine whether a particular painting, drawing, pamphlet, literature, paper or object is obscene or not.

5. In 'Queen v. Hicklin', (1868) 3 QB 360 Cockburn C. J. formulated (at page 371) certain tests which are very often applied to cases of this description, he observed :

'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.'

6. At another place it was observed by Cockburn C. J. (page 370):

'Now, it is found here as a fact that the work which is the subject matter of the present proceedings was, to a considerable extent a obscene publication, and by reason of obscene matter in it. calculated to produce pernicious effect in depraving and debauching the mind of the persons into whose hands it might come.'

7. Further, it appears that the Courts have, more often, restricted the use of the term obscenity to sexual immorality only. Such matters as would tend to stir in persons, into whose hands such matter is ordinarily expected to reach, sex impulse which lead to sexually impure and lustful thoughts, are declared as obscene, attracting the jurisdiction of the Court to ban out such publications. The true test is not to find out what depraves the morals in any way whatsoever, but what leads to deprave only in one way, viz. by exciting sensual desires and lascivious thoughts. The effect produced on an ordinary member of the society or a particular class of readers for which a particular publication may be meant has to be ascertained. It is neither a man of wide culture or rare character nor a person of a depraved mentality should be thought of as being the readers of such literature. The standard of readers is neither one of exceptional sensibility nor one without any sensibility whatsoever.

8. Bearing in mind these general principles we may refer in short to the facts in this particular case. Mr. Dutt appearing on behalf of the petitioner does not contest the principles above mentioned. The real question is whether on a perusal of the impugned portions of the three different issues of the magazine they definitely come within the term obscene.

9. We generally agree with the observations made by the Presidency Magistrate with regard to the different extracts both as to their nature and as to the effect which they can reasonably he expected to produce on ordinary readers for whom the magazine, is meant.

10. On behalf of the petitioner it was urged that this magazine is meant for educating the public in the knowledge of the science of the sex. It is unquestionable that scientific treatises and journals are not to be tested in the same way as books and papers which are published for being read by the common and ordinary man and woman.

11. We shall have to consider, with reference to the subject matter and the treatment of the same in the three different issues in question, whether this magazine with particular reference to such passages may be considered to be either a Scientific Magazine or one keeping up to the ideal set by the printer and publisher as a special paper devoted to the dissemination of scientific truths and knowledge.

12. The Presidency Magistrate has dealt to detail the different extracts as to the nature and the effect which they can reasonably be expected to produce on the ordinary readers for whom the magazine is meant. We shall just touch one or two of those pieces to indicate the real character of the work.

13. One of the articles deals with ancient Indian architecture as exhibited on the walls of old Hindu Temples. With the exception of a few sentences the entire article is devoted to descriptions of and makes reference to statutory representations of cohabiting couples found on the walls of certain specified temples. The particular items selected for the article are not really the best from the artistic point of view but those which are indecent and more aphroditiac. Both the text and the pictures selected are with that aim alone and the articles cannot in any view be considered to be one in which art is explained for the sake of Article.

14. The story with the title 'Tabich' appears in the Sraban issue with an illustration purporting to depict the husband washing the 'Tabich' for having the so called sanctified water to drink while the wife is shown being ravished by another man in another part of the picture. The story is one of a rape. Many of the expressions and sentences Used in different portions of the story are wholly irrelevant to the development, either of the story theme or of the characters but are merely vulgar expressions which undoubtedly arouse sexual passion in an impressionable mind. The form and method of expression together with the occasion and surrounding circumstances play an important part for determining whether a particular matter is obscene or not. The cause neither of literature nor of science is furthered by the expressions which are used in the text and have been referred to by the Magistrate. Detailed descriptions of the scenes of the story which even the writer would not express in language are made explicit by the pictorial representation. Both the subject matter and the method of representation undoubtedly tend to corrupt immature mind; morbid thoughts about sexual passions are intentionally aroused in the minds of those into whose hands this magazine may and are intended to fall and who are open to such immoral influences.

15. Another impugned part of the magazine is where correspondence from readers and the reply by the Editorial Board of the paper are published. Questions published in some cases have nothing of a scientific bearing. Those can only be characterised to be a clever article for advertising the capacity of the paper to rouse the immoral sex urge or in some cases even unnatural offences. They contaminate and tend to upset the balance of an ordinary adolescent mind, susceptible to immoral suggestions and influences.

16. The magazine cannot be deemed to be a record of research work in science or medicine or even attempting a scientific treatment of sexology. It is meant according to the case of the petitioner for purveying to the ordinary members of the public, irrespective of their age, social status and education, to educate and familiarise them in the science of sexology.

17. We are constrained to hold that the Impugned portions and extracts were written with the sole object of exploiting the base in stinct and weakness of human nature. Matters are introduced not for the sake of science and knowledge but for attracting a large body of readers who would not be profited thereby but would unmistakably be affected by corrupting influences. They are meant to rouse the immoral sex urge in human mind. We do not think that the impugned portions can be deemed to be anything more than pieces of pornographic production. We unhesitantly come to the conclusion that the manner in which the pictures have been selected and the various descriptions are given have only one effect and one effect only. Its sole, object is to exploit the base instinct in human nature.

18. It is not necessary to refer in greater detail to each of the impugned portions as we have stated already that we generally agree with the Magistrate about the passages and I pictures in the three issues. They do come within the purview of Section 292 of the Indian Penal Code. The conviction therefore was rightly made.

19. Mr. Dutt has referred to the sentence which had been passed and has pleaded for its reduction. Considering the fact that there are no extenuating circumstances and this was a naked attempt to exploit sex neurosis, the Court would not in such circumstances be justified in reducing the sentence which is by no means severe or excessive.

20. This Rule is accordingly discharged. The petitioner will surrender and serve out the remaining portion of the sentence and pay the fine.

K.C. Chunder, J.

21. I agree.


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