Supreme Court of India
SAMARESH BOSE AND ANR.versusAMAL MITRA AND ANR.
- Citation
- 1985 INSC 205
- Decided
- 24 September 1985
- Disposal
- Appeal(s) allowed
- Bench
- R S PATHAK
Holding
The novel "Prajapati" is not obscene within the meaning of IPC s.292 and the convictions are set aside.
Summary
Samaresh Bose authored the novel "Prajapati" which was published in the Bengali journal Desh and later as a book. Amal Mitra complained that the work was obscene under IPC s.292 read with s.109, leading to the conviction of the author and the publisher Sitangshu Kumar Dasgupta by a magistrate and affirmation by the Calcutta High Court. On appeal, the Supreme Court examined whether the novel, taken as a whole and in its contested passages, tended to deprave or corrupt readers, and considered the relevance of literary expert testimony. The Court distinguished vulgarity from obscenity, emphasized an objective assessment of the work, and held that the novel did not have the tendency to corrupt any class of readers. Consequently, the Court set aside the convictions, ordered the refund of the fine and dismissed the order for destruction of the pages.
Issues considered
- The question whether the novel "Prajapati" is obscene within the meaning of IPC s.292.
- Whether the trial court erred in ignoring expert literary testimony in assessing obscenity.
- Whether vulgar or slang language in a literary work automatically makes it obscene.
- Whether the conviction under s.292 read with s.109 is sustainable.
Legislation cited
- Code of Criminal Procedure, 1973s. 521
- Indian Penal Code, 1860s. 109, s. 292
Subjects
obscenityIPC s.292literary freedomcensorshipvulgarity vs obscenityfreedom of expressioncriminal lawBengali literature
Judgment
• SAIWIESH BOSE AND ANR.
V•
17
A
AMAL MIIRA AND ANR.
SEPTEMBER 24, 1985
[R.S, PATHAK AND AMARENDRA NATH SEN, JJ.]
B
Indian Penal Code, section 292, ingredients snd scope of -
Obscenity, concept of - Duty of the Court in judging the question
of obscenity, explained - Whether the novel under the caption
'Prajapsti' published in "Sarodiya Desh" in the Bengali Journal
Desh contains matters which are obscene attracting liability
under section 292 read with section 109 1,p,C, of the author and c
the printer ·and the publisher.
Samaresh Bose, the first appellant, 1a a well-known writer
of Bengali Novels and stories. He is the author of a novel which
under the caption "Prajapsti• came to be published in "Sarodiya
Desh" (the annual pooja number of the Bengali Journal 'Deah') for D
the Bengali year 1374 B.S. The novel centres round one Sukhen who
figures as the main character and seeks to express the feelinga,
tholl8hts and actions of · Sukben and to portray his character.
- This the author seeks to do throlJ8h Sukben himself who narrates
bis own experiences, feelings, tho1J8hts and actions in hia own
words -what he has seen in others, which·he despised and what he
himself did and how he fell a victim to wine and - and later
gradually slided into slimy life from that of the atmosphere he
E
earlier experienced, bereft of any love and affection and proper
guidance. "Desh" is a journal of repute with wide circulation and
the puja number is read by lovers of Bengali literature of all
age groups all over India, Sitangahu Kumar Dasgupta, the aecond
- . appellant is the publisher and the printer of the journal
containing the said publication.
F
On the 2nd of February, 1968, hnal Mitra, the 18cond
reapondent, and a young Advocate, made an application in the
Court of the Chief Preaidency Magiatrate at Calcutta complaining;
(a) that the aaid novel "Prajapati • containa matters which are G
obscene; (b) that both the aecuaed persons have, sold,
distributad, printed and uhibited the 1ame which has the
tendency to corrupt the morale of those in whose handa the said
"Serodiya Deah" may fall and the reading public as well"; and (c)
that therefore, both the accuaed persons have committed an
offence punishable under section 292 lnd1an Penal Code read
aection 109 thereof. H
18 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R. J
A
On the basis of the said complaint and after compliance
with the necessary formalities, a Criminal Case No. 353/68
against both the accused persons came to be started and disposed
of by the then Chief Presidency Magistrate of Cslcutta by his
judgment dated 11th February, 1968. During the trial on behalf of
B the accused Shri Budhadev Bose, (a whole time writer in Bengali,
Professor of various institutions, the Chairman of the
Comparative Literature at Jadavpur University, visiting professor
of various universities in United States of America) and one Dr.
Naresh Chandra Guba (the Professor and Head of the Department of
Comparative Literature at Jadavpur University who had delivered
lectures on Bengali literature before various literary
c gatherings, over the radio and also in the University of Chicago
on the works of Rabindra Nath Tagore) were examined. When various
passages which are alleged to be obscene by the complainant were ~
put to them, both the witnesses emphatically refuted that there
was any obscenity in any of those passages. According to them,
the words used by the accused author may have been unknown in
literature but they were very widely current in speech; that by
lJ introducing these forceful words into literature the author has
.done a service to Bengali Literature the author has done a
service to Bengali Literature and language making the book
praiseworthy; that the passages were necessary as they bring
about the D>Jral aspects of the hero's character and that the
novel has great social and D>Jral value. ,.
E
The Trial Judge did not place any reliance on the testiD>Jny
of these two eminent witnesses and proceeded to make his own
assessment after reading the book and that too "with an open mind
and a number of times" for the reason that expert knowledge has
nothing to do with such cases and whether a book is obscene or
F not depends on the interpretation of section 292 I.P.C. only.
After setting out in his judgment the gist of the story and
referring to various aspects and incidents and at length for "'
considering whether the book can be said to be obscene, he found
that the novel in question was obscene within the mischief of
section 292 I.P.C. Both the accused were, therefore, found guilty
G by the Trial Judge under section 292 J .p,c. read >dth 109 I.P.C.
The Trial Judge accordingly convicted both the accused and
sentenced both of them to a fine of rupees 201 each and in
default. to undergo simple imprisonment for two D>Jnths each. The
Trial Judge also directed that the pages from 17 4 to 226 of the
journal be destroyed under the provisionn of section 521 Criminal
H Procedure Code after the period of appeal was over• ,
l fu\MARESH BOSE v. AMAL MITRA 19
Against the judgment and order passed by the Trial Judge A
both t.he accused preferred an appeal to the High Court at
Calcutta. The complainant also filed a criminal revision in the
High Court for enhancement of the sentence imposed by the Chief
Presidency Magistrate on the two accused persons. The Criminal
Appeal Nwnber 106/1969, and the Criminal Revision Number 299 of
1969 were heard together and disposed of by a Singl"' Judge of the B
High court by a collllllOn judgment delivered on 27.6.1972. The High
Court discharged the rule in the Criminal Revision No. 299/1969
and dismissed the appeal affirming the conviction and sentences
imposed oa both the accused persons. The High Court, however,
modified the order regarding the destruction of pages from 174 to
226 of the Journal under section 521 Cr. P.c. by observing tbat c
in as much as the said novel which appear at those pages has been
published in the form of a book also the Chief Presidency
Magistrate should take appropriate steps under section 521 in
respect of the copies of the novel published separately in a book
from. Hence the appeal by the accused persons, after obtaining
special leave of the Court. D
Allowing the appeal, the Court
llEID: l.l The question whether a particular book is obscene
or not, does not altogether depend on oral evidence because it is
--ci the duty of the Court to ascertain whether the book offends the E
provisions of section 292 I.P.C. It may be necessary if it is at
all required, to rely to a certain extent on the evidence and
views of leading literateures on that aspect particularly when
the book is in a langusge. with which the Court is not
conversant. [53 D-F)
l!anjit D. Udesh1 V• State of Maharashtra, [1965] l s.c.R. F
65; C2umdrakant lral.yandas !talmdar v. State of Maharashtra, [1970]
-... 2 s.c.R. 80 relied on.
l.2 Unlike England where the decision on the question of
obscenity rests with the jury, in India, however, the
responsibility of the decision rests essentially on the Court. In G
deciding the question of obscenity of any book, story or article
the Court whose responsibility it is to adjudge the question may,
if the Court considers it necessary, rely to an extent on
evidence and views of leading literary personage, if available
for its own appreciation and assessment and for satisfaction of
its own conscience. The decision of the Court lllllSt necessarily be
on an objective assessment of the book or story or article as a H
whole and with particular reference to the passages complained of
20 SUPREME COURT REPORTS [1985] SUPP.3 S.C.R.
A
in the book, story or article. The Court must take an overall
view of the matter complained of as obscene in the setting of the
whole work, but the matter charged as obscene must also be
considered by itself and separately to find out whether it is so
gross and its obscenity so prouounced that it is likely to
B deprave and corrupt those whose millds are open to influence of
this sort and into whose hands the book is likely to fall. Though
the Court must consider the question objecti·vely with an open ·-
miwi, yet in the matter of objective assessment the subjective
attitude of the Judge hearing the matter is likely to influence,
even though uncoucioualy his miwi awl his decision on the
question. A Judge with a puritan and prudish outlook may on the
c basis of an objective asoeasment of any book or story or article,
I consider the same to be obscene. It is poasible thet another
judge with a different kiwi of outlook may not consider the same
book to be obscene on his objective assessment of the very same
book. [47 IHI; 48 A-II)
The concept of obscenity is moulded to a very great extent
0 by the aocial outlook of the people who ere gei;erelly expected to
read the book. It 1• beyowi diapute that the concept of obscenity
usually differs from couotry to c.ountry depewiing on the
atawiarda of morality of contemporary society in different
couotrias. Therefore, in judging the question of obscenity, the
Judge in the first place should try to place himself in the
E position of the author and from the view point of the author the
Judge ehould try to uwieratand what is it that the author seeks
to convey and whether what the author convey• has any literary
and artiatic value. The Judge ahould, thereafter, place himself
in the poaition of • reader of every age group in whose hands the
book 1a likely to fall and ahould try to appreciate what kiwi of
F possible influence the book ia likely to hava in the mind• of the
reader1, A Judge, should thereafter, apply hie judicial mind
di1pu1ionstely to decide whether the book in question can be
aaid to be obscene within the meaning of aection 292 I.P.C. by an
objective u1H1111ent of the book aa a whole and alao of the
puaagas complained of ea obacene aeparatelyo In appropriate
G cuas, the ·Court, for eliminating any 1ubjectiw el-nt or
pereonal preference which may remain hidden in the au~onecioua
miwi and may unconacioualy effect • proper objectiw
ee•H-nt, uy draw upon the evidenca on record and also
conaider the viewa aapreaaed by reputed or recoani••d author• of
literature on auch quaationa if there be any for hi• own
H conaidaration and 1&ti1faction to enable tbe court to di•chara•
the duty of making a proper uaeaamento [48 B-F]
SAMARESH BOSE v. AMAL MITRA 21
Banjit D. Udeabi V• State of llabaraahtra, (1965] l S.C.R. A
65; a.imdrakant ialyandas J!!lrodar v. State of llabaraahtra,
(1970] 2 s.c.R. 80 relied on.
Queen V• Bead (11 Mod. 205 Q.B.); HjckUn'e case (1868]
L.R. 3 Q.B. 360; lloth'e case 354 U.S. 476; ll. V• Pengu1ne Books
- Ltd. Crl. Law Review 1961 P Quoted with approval.
2.1 The novel "Prajapati" cannot be considered to be
B
obscene on any count, whether considered in the position as an
author or that of the reader. Sarodiya Desh is a very popular
journal and is read by a large number of Bengalies of both sexes
and alnx>st of all ages all over India by teenagers, young boys,
adolescents, grown-up youngmen and elderly people and the novel
c
published in the Journal did not affect the iooral character of
the complainant as well. Reference to kissing, description of the
body and the figures of the female characters in the book and
suggestions of acts of sex by themselves may not have the effect
of depraving, debasing and encouraging the readers of any age to
D
lasciviousness. [51 F-1!)
2.2 A vulgar writing is not necessarily obscene. Vulgarity
arouses a feeling of disgust and revulsion and also boredom but
doea not have the effect of depraving, debasing and corrupting
the morals of any reader of the novel, whereas obscenity has the
E
tendency to deprave and corrupt those whose minds are open to
such immoral influences. [52 C-D]
2.3 In the instant case; (i) the character like Sukhen,
Shikha, the father and the brothers of Sukhen, the business
executives and others portrayed in the book are not just figments
of the author's imagination. Such characters are often to be seen
F
in real life in the society; (ii) the author who is a powerful
writer has used his skill. in focussing the attention of the
readers on such characters in society and to describe the
situation more eloquently he has used unconventional and slang
words so that in the light of the author's understanding, the
appropriate emphasis is there on the problems; (iii) some
G
portions of the book may appear to be vulgar and readers of
cultured and refined taste may feel shocked and disgusted.
, Equally in some portioils, the words used and description given
may not appear to be in proper taste. In some places there may
have been an exhibition of bad taste leaving it to the readers of
experience and maturity to draw the necessary inference but
certainly not sufficient to bring home to the adolescents any
H
22 SUPREME COURT REPORTS [1985] SUPP.3. s.c.R.
A
suggestion which is depraving or laacivioua; and (iv) the author
bas written this novel which came to be published in the Sarodiya
Deah for all classes of readers and it cannot be right to insist
that the standard should always be for the writer to see that the
B
adolescent .may not be brought into contact with sex. If a
reference to sex by itself in any novel is considered to be
obscene and not fit to be read by adolescents, adolescents will
not be in a position to read any novel and "will have to read
books which are purely religious.• [52 IHI; 53 A-DJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 174
of 1973.
c
From the Judgment and Order dated 27.6.1972 of the Calcutta
High Court in Crl. A. No. 106 of 1969. ~
G.L. Sanghi, Sukumaran and Ms. Ratna Kapur for the Appel-
lants.
D
U.R. Lalit, R.K. Jain, D.S. Mehta, M.M. Israily, Dilip
Sinha, J.R. Das and D.N. Mukharji for the Respondents.
The Judgment of the Court was delivered by
E
AMARENDRA NATH SEN, J. Samaresh Bose, the first appellant,
is a well-known writer of Bengali Novels and stories. He is the
author of a novel which under the caption 'Prajapati' came to be
published in 'Sarodiya Desh' (the annual pooja nwnber of the
Bengali Journal 'Desh') for the Bengali year 1374 B.S. 'Desh is
a journal of repute with wide circulation and the puja nwnber is
read by lovers of Bengali literature of all age groups all over
F
lndia, Sitangshu Kumar Dasgupta, the second appellant was the
publisher and the printer of the journal at the relevant time.
On the 2nd of February 1968, Amal Mitra, a young Advocate,
made an application in the Court of the Chief Presidency
G
Magistrate at Calcutta complaining that the said novel
'Prajapati' "contains matters which are obscene and both the
accused persons have, sold, distributed printed and exhibited the
same which has the tendency to corrupt the morals of those in
whose hands the said 'Sarodiya Desh' may fall and the reading
public as well" and "both the accused persons have committed an
H
offence punishable under •· 292 Indian Penal Code (I.P.C. for
short) and under s. 292 read with s. 109 I.P.C.
SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J.J 23
On the basis of the said complaint and after compliance A
with the necessary formalities, a criminal case being case No.
353/68 against botll the accused persons was started and the said
criminal case was disposed of by the then Chief Presidency
Magistrate of C&lcutts by his judgment dated 11th February, 1968.
The Learned Chief Presidency Magistrate for reasons recorded in
the judgment held:- II
"Tiro persons are facing their trial, accused NO. l,
Shri Samaresh Basu, a modern writer of repute and
accused No. 2, Shri Sitsngshu Kumar Das· Gupta, the
Printer and Publisher of a very important magazine
like 'Desh'. c
The novel in question has been found to be obscene and
as such accused No. l Shri Samaresh Basu cannot escape
liabilities. The same is also the condition with
accused No. 2 - Shri Sitangshu Kumar Das Gupta. He has
got special responsibilities to see that his publica- D
tion may not affect the readers of the same.
For the reasons stated above, though the accused No. l
Shri Samaresh Basu, is a powerful writer, I cannot but
strike down the impugned novel, after declaring the
same as obscene. E
The result of my above findings, is to find both the
accused guilty u/s 292 l.P.C. and I convict both of ·
them accordingly.
Next question arises as to what punishment should be
inflicted.
F
Considering the facts and other connected matters I
•
sentence both of them to pay a fine of Rs. 201/- each
in default to undergo s. 1 for two months each.
Let the pages from 174 to 226 of Ext. 1 be destroyed G
under the provisions of Section 521 Cr. P.C. after the
period of appeal be over."
Against the judgment and order passed by learned Chief
Presidency Magistrate both the accused preferred an appeal to the
High Court at Calcutta. The complainant also filed a criminal
revision in the High Court for enhancement of the sentence H
24 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A imposed by the Chief Presidency Magistrate on the two accused
persons. On the criminal revision application which was numbered
as Criminal Revision No. 299 of 1969 rule was issued by the High
Court. The criminal appeal which was filed by the two accused
persons was numbered as Criminal Appeal No. 106/69. The Criminal
Appeal No. 106/69 and also the Criminal Revision No. 299/69 were
B
disposed of by a single Judge of the High Court by a common
judgment delivered on 27.6.1972. The High Court discharged the
rule in the Criminal Revision No. 299/69 and dismissed the appeal
affirming the sentences imposed on both the accused persons with
the following further observations :-
"In the Petition of complaint only the publication of
c the novel in the Sardiya Sankha of Desh of the Bengali
Year 1374 at PP• 174 to 225 was mentioned. OnlY one
copy of that journal Desh was marked Ext. l in the
court of the Magistrate. The learned Chief Presidency
Magistrate has directed that the pages from 174 to 226
of Ext· 1 be destroyed under the provisions of Sec.
521 Cr. p.c. That serves no purpose unless all the
D printed copies of that issue of Desh are forfeited and
in every copy thereof pages from 174 to 226 be
destroyed. The Magistrate also failed to notice that
during evidence it has come out that this novel has
been published also as a book. That publication in the
form of a book of this novel need also be forfeited
E under Sec. 521 Cr.P.c. While I affirm that the learned
Magistrate's decision to destroy the offending pages
should be upheld· I direct that the learned Chief
Presidency Magistrate shall take ap.propriate steps
under s. 521 in respect of the other copies of Ext. 1
and also in respect of the novel if published in book
F form, The appeal fails and is dismissed.''
•
Against the judgment of the High Court both the accused
persons have preferred this appeal with special leave granted by
this Court.
G The question for consideration in this appeal is whether the
two appellants can be said to have committed an offence under S.
292 I.P.c. and the answer to this question will necessarily
depend on the finding whether the novel 'Prajapati' is obscene or
not.
H
SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J.] 25
A
It may be noted that in the trial before the Learned Chief
Pi!esidency Magistrate the complainant and one Kalobaran Ghosh a
businessman, had deposed; accused Ssmaresh Bose and acc•1sed
Sitangshu Kumar Das Gupta were both exnmined, and two well-known
persons in the literary field, (1) Shri Budhadev Bose and (2) Dr.
Naresh Guba had given evidence on behalf of the accused. Amal B
Mitra, the complainant, in the course of evidence stated that he
was an Advocate of the Calcutta High Court and was a reader of
Bengali Literature and he considered it to be his duty to uphold
the purity of Bengali Literature. It is his evidence that the
book .is obscene and has got no literary value and the book, if
read by any person and particularly young persons, may corrupt c
the morals of the readers. He marked various portions in the book
which according to him were obscene. In the course of his
cross-examination, Shri Mitra was asked about various other
• Bengali novels written by other eminent writers, namely, Probodh
Kumar Sanyal, Budhadev Bose and Ananda Shankar Roy and he
admitted that he had not read any book by them. He also stated in D
his cross-examination that though he had gone through the book
his moral character had not been affected in any way. The other
witnesses examined on behalf of the complainant was Kalobaran
Ghosh, a businessman carrying on the business of manufacturing
engineering goods. He has stated in his evidence that he has a
family and he is interested in Bengali literature. It is his E
evidence that after going through the novel 'Prajapati' he formed
an opinion that the novel was absolutely obscene meant to pollute
the minds of the younger generation and was written with a view
to earn money and he could not hand over the book to his children
for reading the same. In the course of his cross-examination,
this witness stated that he had read the writings of late Sarat
Chandra Chattopadhyay, Rabindra Nath Tagore and Ananda Shankar F
Roy and he would not say that any of their writings was obscene.
This witness further stated in the course of cross-examination
that he had not read all the books written by Budhadev Bose,
Probodh Sanyal, Achintya Kumar Sengupta. This witness admitted
that with the passing of time, the standards of the literature
were going down and so also the standards of obscenity. G
The first witness.called on behalf of the accused was Shri
Budhadev Bose. In his evidence Shri Budhadev Bose stated that he
was a whole time writer and in addition to that he was a
Professor of various institutions and he had also been the
Chairman of the Comparative Literature at Jadavpur University for
seven years and he had also been the visiting professor of H
various universities in United States of America. He further
26 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A stated that he had at least written about 200 books and also many
critical works ancl the books written by him were mostly in
llengali excepting two books which were in English. lie stated in
thP. course of his evidence-
"l c«n unhestiatingly say that Shri Bssu is one of the
B most important Bengali Novelists of the generation
"fter mine. l might be 20 years older to Shri Bssu.
some sort of restraint should be there to regulate the
ob~cene writings. l mean to say that in certain
specfal cases it may be necessary to impose some
restraint on literature. l have read the novel
'Prajapati' es published in the Sarodiya Desh issue of
c the Year 137 4 and subsequently published in book form.
That is the book which is being considered in this
trial.
Q. Do you consider that book or the novel 'Prajapati'
to be an obscene writing?
D A. Not at all.
Q. Would you say any portion of that writing to be
obscene?
A. No."
E
In the coume of his evidence, his attention was drawn to
various pass«ges in the book which were alleged to be obscene and
he categorically stated that there was nothing obscene in any of
these passages. This witness was cross-examined at length.
Various passages in the book alleged to be obscene were put to
F this witness and it was suggested to him that these passages were
obscene. Shri Bssu emphatically and categorically denied that
those pass«ges or any part thereof could be characterised as
obscene. When asked what was his concept of obscenity, Shri Bssu
in his answer stated "In my opinion, if a piece of writing can be
called . literary in the special sense, it cannot be obscene.
G Literature in the technical sense means an imaginary piece of
writing". When asked in the course of cross-examination to cite
an example in support of the proposition that a writing vividly
describing a sexual act and sexual perversity, was of literary
and moral value, Shri Bssu answered as follows:-
H
SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J.] 27
"Anybody who kno'1s thP. works of Rabinc!ra Nath Tagore, A
knows that throughout his life he w11s a great advocate
of freedom, we can say, also of social and sexual
freedom. May I remind every,:me here of his novel
'Chokher Bali' where he describes a love relationship
between a young Hindu widow and a youngman. May I
remind everybody here of ''Ghare Baire' where a married B
womai., a very highly respected woman falls in love
with her husband's friend. May I remind everyone here
of Tagore's novel 'Chaturanga' where an actual &exual
act is · desaibed in a very poetic and moving
1
language."
In cross-examination with regard to a particular pass&ge at
c
p. 178 which is alleged to be obscene, this witness was asked
what was it that the author was describing in that passage. The
following answer to this question followed by further questions
and answers may be noted:-
D
"A. He is describing some pictures that he had at one
time seen.
Q. Mr. Bose, do you say that this sort of writing is
unconventional?
E
A. It is not very unconventional in 1968.
Q• Mr. Bose would you like to say that teenagers
reading this portion would not be affected in any way?
A. I have already said that they will be repelled.
F
Q. I put it to you that this passage is obscene and it
would pollute their minds?
A. I do not think it is obscene at all, nor is it
liable to corrupt the young or older people.
G
Q. Mr. Bose do you agree that in this novel
'Prajapati', the writer has chosen many 'words
which perhaps are unknown to the Bengali
Literature?
A. These words wiy have been unknown in literature but
they were very widely current in speech. By H
28 SUPREME COU!i.T REPORTS [1985] SUPP.3 s.c.R.
A introducing these new and forceful words into
literature the author has done a service to
Bengali literature and language and that is one of
the reasons why the book is praise""1o10rthy. That
passage was necessary because this passage br~ngs
out the moral aspects of the hero's character."
B
It was put to this witness that this novel 'Prajapati' has
no moral value and in answer the witness stated "In my opinion,
it has great social and mora1 value". When a further suggestion
was put to him in the course of cross-examination that the book
'P•ajapati' had been written only with commercial motive, the
witness categorically denied the suggestion saying "certainly
c not". In answer to the suggestion made to Mr. Bose that he was
not capable of judging what is good and what is bad in literature
his evidence was:
"Many people think both in India and abroad that I am
excellent Judge of literature and I agree with them.
On the strength of the reputation I have been invited
D several times to teach at American Universities and to
lecture on literature in many famous Universities in
Europe and in Asia".
The other witness called on behalf of the accused was Dr.
Naresh Chandra Guba who at the time of giving his evidence was
E the Professor and Head of the Department of Comparative
Literature at Jadavpur University. Dr. Guha in the course of his
evidence said that as part of his duty he had to deliver lectures
on Bengali Literature and in addition to that he addressed
various literary gatherings and had spoken over the radio and he
had also addressed a meeting in the University of Chicago on the
F works of Rabindra Nath Tagore. This witness stated that he had
written two books till then, one in English and the other in
Bengali. It was the evidence of this witness that he had read
quite a few books written by Samaresh Bose and he considered him
to be a very powerful writer. It is his categorical evidence that
he has read the novel 'Prajapati' and he does not consider that
G book as an obscene one and this novel is not obscene either in
part or as a whole. When certain passages of the book alleged to
be obscene by the complainant were pointed out to him to
ascertain his views as to whether those passages were obscene,
this witness stated that he did not consider the same to be
obrcene as in his view "it is a necessary part of the scheme" of
H the novel which scheme was social criticism with a moral purpose.
SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J. J 29
When asked whether the moral purpose of the novel will come A
through to the general reader, this witness said in his evidence-
"If the reader is one who is used to literature, by
which I mean who does not read once a while a book in
his life, the moral purpose of the book will be very
obvious. I feel as a man whose profession is teaching B
literature in M.A. classes this is how I could look to
them for this book. Here is a young man Sukhen, a
small town man, who never hsd the occasion to
experience human love."
Dr. Nsresh Chandra Guha was also cross-examined at length. C
Various passages which were alleged to be and were considered to
be obscene by the complainant wer. put to this witness. Dr. Nsresh
Chandra Guba clearly and emphatically refuted that there was any
obscenity in any of those psssagas. 'l'he following questions put
to the witness and the answers given by him may also be noted:-
,. D
"A. No Sir, My. answer entirely goes against your
suggestion.
Q. Mr. Guba, I put it to you that the novel
'Prajapati 1 in question in general and the portiona
marked with red lines in particular are obscene? E
A. I do not think so.
Q• I put it to you that the novel 1 Prajapati 1 has the
tendency to corrupt the morals of those whose minds
are open to immoral influence.
F
A. No, it is not so..
Q• I put it to you that the novel Prajapati wou1¢
pollute the minds of those readers who are young
adolescent and of impressionable age?
G
A. I have got some scudents. They have read the book.
I know, they have not been corrupted. They are of the
age group between 18 upwards. They are college
students or university students.• "
• It may be noted that the learned Chief Presidency Magistrate
had placed no reliance on the testimony of these two witnesses. H
30 SUPREME COURT REFORTS (1985] SUPP.3 s.c.R.
~
A In fact, he has placed no reliance on the oral testimony which
was adduced before him· The learned Chief Presidency Magistrate
· :ias pro~eeded to make his own assessment after reading the book,
and as stated by him, with an open mirui and a number of times. He
has observed "Moreover expert knowledge has nothing to do with
such cases. wltether a book is obscene or not depends on the
B interpretation of s. 292 1.p.c. and not on expert evidence".
The learned Chief Presidency Magistrate has set out in his
judgment the gist of the stury and has referred to various
aspects and incidents at length for considering wbeth~r the book
can be said to be obscene. Dealing with the statement made on
behalf of the accused author, that the passages colilplained of are
not obscene and even if it may be said that ther.e is some amount
C of indecency in those passages and the words used therein are
vulger, it has to be appreciated .that they became necessary to
put the scheme of the novel in its right perspective, the learned
Chief Presidency Magistrate iias observed:-
"It may have exposed the hypocricy of the people,
exposed the politicians who live on others, exposed
D /
the teachers who do not care to look after the
interests of the students, exposed the big officers of
the workshops and factories and their most
ultra-modern wives who do not take care of their
children. No doubt, such a thing has been said and
such characters have been depicted, but to me it
E seema, it has so been depicted in a very veiled way.
The character of Sukhen as offered to be a noble one,
has got to be established by argument. So also the
character of Sikha. A plain reading of the novel will
no doubt raise pity in the mind of the readers for
~ukhen and Sikha, but that will not heighten the
F importance of the novel in question. As a forceful
writer, Shri Samaresh Basu has depicted those
character in his own way, but unfortunately the
purpose has been frustrated by his bringing sane slang
and unconventional words and for his depiction of some
incidents which cannot be tolerated in a society like
G ours.··
He further observed:-
"It was said that Sukhen is a goonda and a street boy
having no sufficient educaUon and culture. As such in ~
H the fitness of things those words and incidents had to
SAMARESll BOSE v. AMAL MITRA [A.N. SEN, J.) 31
be mentioned like this through his 100uth. Sukhen might
A
be of a character of that type but the writer ought to
be a little bit cautious. The writer must know that
the sto~y of Sukhen will not remain written and
preserved in the iron-safe. The writer has got his
duty towards his readers as well. Their writings have
got their social implications as there is a right of B
the authcr to give his very best free from any
restraint from any quarter and that too fearlessly. So
there is his responsibility to the society as well. As
his freedom is great, so must be the responsibility as
well. With that end in view the social control has
been imposed on the writers th:-ough the help of c
legislation. Accordingly, I hold that no writer should
be allowed to take recourse to wlgariSlll under the
pretence of writing some novel with some social
purpose ...
The Chief Presidency Magistrate ultimately held:- D
"I find that this book has got no literary merit, nor
educational or sociological value. An attempt,
however, was made on behalf of the writer to show that
the novel in question has served those purposes, but a
simple reading of the same will show that it was E
nothing but a camouflage to introduce obscenity in
this book and this has played prominent part. Under
the pretence of doing good to the society the novel in
question has done greater mischief."
On the basis of the findings on his own appreciation and
assessment of the novel on the question of obscenity, the learned F
Chief Presidency Magistrate came to the conclusion that the novel
was obscene within the mischief of s. 292 I.P.C. and the learned
Chief Presidency Magistrate imposed the conviction and the
sentence which we have earlier recorded.
The learned Single Judge of the lligh Court has affirmed the G
view expressed by the learned Chief Presidency Magistrate that
the novel in question is obscene alld comes within the mischief of
s. 292 I.P.C. It may be appropriate to note some of the
observations made by the learned Judge. He observed :-
"I have read the whole novel. It is remarkable for
many reasons, more so because the author Samaresh Basu H
who is the Principal accused in this case is a well
32 SUPREME COURT REPORTS [l98j] SUPP.3 s.c.R.
A known writer of contemporary Bengali literature and
has published works in the past which have often been
in the background of that strata of society where
manual labour is often victim of expolitation and
sweating, resulting in continuation or even
p~rpetuation of proverty, illiteracy •••• In those
B works Samaresh Basu has employed language of his hero
in the particular literary work as such character
would do in real life. This Sri Basu has done with
courage and deftness that have not only served his
purpose well in those writings but also earned
reputation for him as a remarkable Bengali writer of
present age. Both the defence witnesses have spoken of
c that well known fact."
The learned Judge has further observed :-
"It cannot be questioned that the problem has grown in
its bulk because of the complete break down of moral
fibre of the society in general and individual members
D of the society in particular, and also in the family
units and that can by no means be denied also. The
causes that have led to the reasons of the problem
need to be carefully discerned. To my mind it is also
in the fitness of things that thinkers and literatures
have a function to deal with the problem by use of the
E strength of their pen for giving expression to their
tho1J8hts and suggestions. Yet literature as an art is
one of certain technique and conscious caution. When
the subject is virulent, that provides all the more
reason for subdued caution, lest in the attempt to
locate the virus and disclosure of its causes, the
F treatment itself spreads the poison to conteminete
many more who are yet uncontaminated that is Wh> the
quality of the writer and quality of the languages
employed by the writer is relevant. His purpose may be
good but his language may betray his purpose and bring
about a completely reverse affect. Mere goodness of
G purpose, therefore, does not offer justification for
employment of bad language-bad ir. the larger sense
including lascivious and wlgar. In matter of
technical interest and for the concern of technically
trained minds a language may be not only inevitable
H
but also useful. But the same language when employed
1
SAMARESH BOSE v. AMAL MITRA (A.N. SEN, J.] 33
as a vehicle for treatises which are not for the A
technical purpose becomes obscene due to its
vulgarity.
By reading this novel printed in Ex. l in the whole
I have come to the definite conclusion that the author
Ssmaresh Basu has lapsed into that fault in so far he B
appears to have intended it for the purpose of getting
a market for the journal in which it has been printed
amongst the young section of the society. Whether he
has unintentionally lapsed into that vulgarity of
language as the vehicle of expression in this
writing is irrelevant. What is relevant is that it c
definitely tends to, not only tends but in my view, it
does, ,deprave and corrupt persons who are likely to
read, see or hear the matter contained in it."
'!he learned Judge held:-
D
"I am of the view that successful description of
reality is not a good defence against charge of
obscenity in literature published for general reader.
Students of obstetrics read in the medical treatise
and get full explanation of all the detail of female
anatomy that helps in the cause of science of E
medicine. But such description.of the female anatomy
offered as literature for the general public with all
the good qualities of successful realism remains
obsscene punishable under s. 292 I.P.C. It can not be
whittled down by merely saying it is bad taste· By the
. law Of our country it is a crime. In the present case,
I am of the view that the episodes and the use of so F
much slang are all deliberately included, not to serve
any purpose of art of literary value, but only for
getting the seller's market of pornography.
Pornography it is and with all the gross taste not
because it has sacrificed the art of restraint in the
description of female body and also because in some G
part it has indulged in complete description of sexual
act of a male with a female and also of lower animal."
'!he learned Judge on the basis of his aforesaid findings and
other reasons stated in the judgment affirmed the view of the
learned Chief Presidency Magistrate that the novel in question
was obscene and the learned Judge passed an order which we have H
earlier noted, upholding the conviction and sentence, while
discharging the Rule.
34 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
The correctness of the decision holding the novel to be
obscene is the subject matter of challenge in this appeal by
special leave before us •
Mr• Sanghi, learned Counsel appearing on behalf of the
appellants, has contended that neither the novel as a whole nor
B
any part thereof can be considered to be obscene within the
meaning of s. 292 r.e.c. It is his contention that in various
portions of the novel and in particular the marked portions which
were considered by the Chief Presidency Magistrate and also the
High Court, various slang words might have been used and the
description of the incidents including lhe description of various
c parts of female body may be verging on wlgarity and may offend·
sophisticated minds, but the same cannot be considered to be
obscene, as the same cannot have any tendency of depraving and
corrupting the minds of persons whose minds are open to such
immoral influences and the same cannot also suggest to the minds
of the young people of either sex or to persons of more advanced
years thoughts of any impure and libidinous character. Mr. Sanghi
D
has submitted that the novel depicts the feelings, thoughts,
actions and the life of Sukhen who is the hero of the novel and
is its main character; and through the speeches, thoughts and
actions of Sukhen the novel seeks to condemn and criticise
various aspects of life in society now prevailing in its various
strata• It is his submission that slang words and almost wlgar
language had to be used in keeping with the character of Sukhen
E
who was accustomed to the use of only such language. lie argues
that if different kinds of words, cultured and sophisticated,
were to be used in the thoughts, speeches and actions of Sukhen,
the entire portrayal of Sukhen •s character• would become unreal
and meaningless. It is his argl.Ullent that true art and literature
F
require that the character sought to be portrayed must be so
depicted as to make it real and artistic; and, if for achieving
that purpose the language which the kind of person sought to be
portrayed indulges in is put into his ioouth it does not become
obscene. The contention of Mr. Sanghi is that persons brought up
in a particular atmosphere or belonging to a particular class of
G
society choose to use particular types of words to which they are
accustomed and if any author has to portray the life of any
person belonging to any such strata of the society or brought up
in that particular environment, the author for appropriately
depicting the character of such a person 1111st necessarily employ
as a matter of art and literature the words and expressions that
H
such a person whose character is sought to be depicted uses. Mr.
Sanghi has argued that in literature as also in life there is a
1
SAMARESH BOSE v. AMAL MITRA [A.N. 'SEN, J.] 35
good deal of distinction between obscenity and vulgarity though A
both may be offensive to any sophisticated mind. It is his
submission that it is obscenity in literature which attracts the
provisions of s. 292 I.P.C. Mr. Sanghi has argued that the word
'obscenity' which is not defined in the Code has come up for
consideration in various cases and has been judicially interpre-
ted by various courts including this Court. It is his argument B
that this book has a social purpose to serve and has been written
ldth the main object of focussing the attention of persons
interested in literature to the various ills and maladies ailing
and destroying the social fabric and the author who is a powerful
writer has used his talents for achieving the said purpose; and
in this connection Mr. Sanghi has referred to the evidence of c
Budhadev Bose and Dr. Naresh Chandra Guha. In support of ,the sub-
missions made, Mr. Sanghi has referred to decisions of this Court
and other authorities.
Mr. Mukherjee, learned_ counsel appearing for the State, has
supported the judgment of the Chief Presidency Magistrate and the D
High Court affirming the judgment of the Chief Presidency
Magistrate. Mr. Mukherjee has submitted that the novel has to be
judged in the background of the conditions prevailing in the
society at the time when the novel was written. It is his
submission that the learned Chief Presidency Magistrate and the
learned Judge of the High Court have both read the novel E
carefully a number of times and on their own appreciation of the
merits of the novel they have both come to the conclusion after
considering all the submissions which were made on behalf of the
accused persons that the novel in question was obscene.'
Mr. La.lit, learned counsel, appeared as an Amicus curiae at
the request of' the Court. When the matter had earlier been F
called, nobody had appeared on behalf of the respondents which
included the complainant and the State. At that time the Court
had r~quested Mr. Lalit to assist the Court. It appears that the
matter had been adjourned and the counsel for the State had
appeared thereafter at the subsequent hearing. Nobody, however,
had appeared on behalf of the complainant at the hearing of the G
appeal. Mr. Lalit has rendered useful assistance to. the Court and
he has aptly pointed out with reference to authorities that the
position in law appears to be well-settled. He rightly contends
that the real question is the proper application of the
• well-settled legal principles to the facts of any particular
case. Mr. Lalit has drawn our attention to various passages
complained of as obscene and noticed in the judgments and has H
36 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A fllirly submitted that it will be for this Court to decide finally
on a proper . appreciation of the novel itself as a whole and in
parts whether the novel or any part thereof is obscene within the
meaning of s. 292 I.P.C. The Court expresses its appreciation for
the assistance given by Mr. Lalit.
B s. 292 I.P.C. as it stood at the relevant time was in the
following terms :-
..Whoever-
(a) sells, lets to hi:re, distributes, publicly exhi-
bits or in any manner puts into circulation, or for
c purposes of sale, bin•, distribution, public exhibi- •
tion or circulation, makes, produces or has in his
possession any obscene book, pamphlet, paper, drawing,
painting, representat:Lon or figure or any other
obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for
D any of the purposes aforesaid, or knowing or having
reason to believe that such object will be sold, let
to hire, distributed or publicly exhibited or in any
manner put into circulation, or
(c) takes part in or receives profits from any
E business in the course of which he knows or has reason
to believe that any suc:h obscene objects are, for any
of the purposes aforesaid, made, produced, purchased,
kept, imported exported, conveyed, publicly exhibited
or in any manner put into circulation, or
F
(d) advertises or makes known by any means whatsoever
that any person is engaged or is ready to engaged or
is ready to engage in any act which is an offence
under this section, or that any such obscene object
can be procured from or through any persons, or
G
(e) offers or attemptn to do any act which is an
offence under this section,
shall be punished 1'ith imprisonment of either
description for a tenn which may extend to three
months or with fine, or with both.
H
- SAllARESH BOSE v. AMAL MITRA (A.N. SEN, J.] 37
Exception - This section does not extend to any book, A
pamphlet, writing,· drawing or painting kept or used
bons fide for religious purposes or any representation
sculptured, engraved, painted or otherwise represented
on or in any temple, or on any car used for the
conveyance of idols, or kept or used for any religious
purpose. B
Thia section came to be amended in 1969 by Act 36 of 1969
and the amended Section reads as follows
:-
"(l) For the purposes of sub-section (2), a book,
pamphlet, paper, writing, drawing, painting, c
representation, figure or any other object shall be
deemed to be obscene if it J.s .lascivious of appeals to
the prurient interest or if its effect, or (whether it
COOIPrises two or more distinct items) the effect of
any one of its items, is, if taken as a whole, such as
to tend to deprave and corrupt persons who are likely, D
having regard to all relevant circumstances, to resd,
see or hear the matte/ contained or embodied in it.
(2) Whoever-
(a) sells, lets to hire, distributes, publicly E
exhibits, or in any manner puts into circulation or
for purposes of sale, hire, distribution, public
exhibition or circulation, makes produces or has in
his possession any obscene book, pamphlet, paper,
drawing, painting, representation or figures or any
other obscene object whatsoever, or
F
(b) imports, exports or conveys any obscene object for
any of the purposes aforesaid, or knowing or having
reason to believe that such object will be sold, let
to hire, distributed or publicly exhibited or in any
manner put into circulation, or
G
(c) takes part in or receives profits from any
business in the course of which he knows or has reason
to believe that any such obscene objects are, for any
-
of the purposes aforesaid, made, produced, purchased,
kept, imported, exported, conveyed, publicly exhibited
or in any manner put into circulation, or
H
38 SUPREME COURT RE;p()RTS [1985] SUPP.3 s.c.R. ...
A
(d) advertises or make1s known by any means whatsoever
that any person is engaged or is ready to engage in
any such obscene object can be procured from or
through any person, or
B
(e) offers or attempt:s to do any act which is an
offence under this sect:ion.
shall be punished on first conviction with
imprioonment of either description for a term which
may extend to two years, and with fine which may
c extend to two thousand rupees, and, in the event of a
second or subsequent conviction, with imprisonment of
either description for a term which may extend to five
years, and also with fine which may extend to five
thousand rupees-
Exception - This section does not extend to-
D
(a) any book, pamph:Let, paper, writing, drawing,
painting, representation or figure-
(i) the publication of which is proved to be justified
as being for the publ.J.c good on the ground that such
E book, pamphlet, papet, writing, drawing, painting,
representation or figure is in the interest of
science, literature, art or learning or other objects
of general concern, or
(ii) which is kept or used bona fide for religious
F purposes:
(b) any representation sculptured, angraved, painted
or otherwise represent1!d on or in-
(i) any ancient monument within the meaidng of the
G Ancient Monuments and Archaeological Sites and Remains
Act, 1958 or
(ii) any temple, or on any car used for the conveyance
of idols, or kept or u1>ed for any religious purpose.
H It may be noticed that the amended Section to which
reference has been made by the High Court in the judgment does -
not appear to be of any material consequence in deciding this
SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J. J 39
particular case. The amended provision seeks to clarify what may A
be deemed to be obscene within the meaning of the section, as the
word 'obscene' appearing in the section has not been defined in
the Section or in any provision in the Act. The amended provision
embodies to an extent in the section itself the import, effect
and meaning of the word 'obscene' as given by courts on
interpretation of the wrod 'obscene'. B
In the case of Ranjit D. Udesbi v. State of Maharashtra,
[1965 J 1 S.C.R. 65 this Court had to decide the question of
constitutional validity of s. 292 I.P.C. and had also to
interpret the word 'obscene' used in the said Section. This Court
upheld the constitutional validity of the Section and the c
question of validity of the said section is, therefore, no longer
open and has not been very appropriately challenged in the
present case. On the question of interpretation of the word
'obscene' in s. 292 I.P.C. this Court observed at pp. 73-74 :-
'"We shall now consider what is meant by the word D
'obscene' in s. 292, Indian Penal Code.
The Indian Penal Code borrowed the word from the
English Statute. As the word 'obscene' has been
interpreted by English Courts something may be said of
that interpretation first. The Common law offence of E
obscenity was established in England three hundred
years ago when Sir Charles Sedley l'Xj>Osed 'his person
to the public gaze on the balcony of a tavern.
Obscenity in books, however, was punishable only
before the spiritual courts because it was so held
down to 1708 in which year ~ v. Bead, 11 Mod. 205
Q.B., wa~ decided. In 1717 in the case against one F
Curl it was ·ruled for the first time that it was a
common Law Offence (2 Stra. 789 K.B.) In 1857 Lord
Campbell enacted the first legislative measure against
obscene books etc. and his successor in the office of
Chief Justice interpreted his statute (20 & 21 Viet.
C. 83) in BickHn'a case, (1868) L.R. 3 Q.B. 360, G
case. The· section of the English Act is long (they
were so in those days), but it used the word 'obscene'
and provided for search, seizure and destruction of
obscene books etc• and made their sale, posaession for
sale, distribution etc. a misdemeanour. The section
may thus be regarded as substantially in pari materia
with s. 292 Indian Penal Code, in spi~ of some H
40 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
difference in language. In Hicltl.in'a case the ~een's
Bench was called upon to conaider a pamphlet, the
nature of which can be gathered from the title and the
colophon which read: 'lhn Confession Jbneskecl, showing
B the depravity of Romish Priesthood, the iniquity of
the confessional and th<> questions put to females in
confession. It was bilingual with Latin and English
texts on opposite ·pages and the latter half of the
pamphlet according to the report was 1grossly'
obscene; as relating to impure and filthy acts words
or ideas'. Cockburn, C.J. laid down the test of
c obscenity in these words :
' •••• I think the test of obscenity is this, whether
the tendency of the matt•'r charged as obscenity is to
deprave and corrupt those< whose minds are open to such
immoral influences, and i.nto whose hands a publication
of this sort may fall.. • • it is quite certain that it
D would suggest to the minds of the young of either sex,
or even to persons of more advanced years, thoughts of
a most impure and libidinous character'.
This test has been uniformly applied in India."
E This Court further observed at p. 75 :-
"It may be admitted that the world has certainly moved
far away from the times when Pamela, Moll Flanders,
Mrs. Warren's Profession,, and even Mill on the Floss
were coosiderecl immodest. Today all these and authors
F from Aristophanes to Zola. are widely read and in most
of them one hardly notic"s obscenity. If our attitude
to are versus obscenity had not undergone a radical
change, books like Caldw~ 's God's Little Acre and
Andhre Gide's If It Die would not have survived the
strict test. The English Novel has come out of the
G drawing room and it is a far cry from the days when
Thomas Hardy described the seduction of Tests by
speaking of her guardian angels. Thomas Hardy himself
put in his last two nov1als situations which 'were
strongly disapproved of under the conventions of the
age', but they were extreinely mild .compared with books
H today. The world is now able to tolerate wch more
than formerly, having become indurated by literature
,2f different sorts. The attitude is not yet settled.
, SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J.] 41
Curiously, varying results are noticeable in respect A
of the same book and in the United States the same
book is held to be obscene in one State but not in
another (See A Suggested solution to the Biddle of
Obsceoity) (1964) 112 Penn. L. Rev. 834.
But even if we agree thus far, the question remains B
still whether the Hicklin test is to be discarded? We
do not think that it should be discarded. It makes the
court the judge of obscenity in relation to an
impugned book etc. and lays emphasis on the
potentially of the impugned object to deprave and
corrupt.by immoral influences. It will always remain a C
question to decide in each case and it does not compel
an·adverse decision in all cases.'"
This Court held at pp. 76-77:-
'"The Court must, therefore, apply itself to consider D
each work at a .time. This should not, of course, be
done in th~ spirit of the lady who charged Dr. Johnson
with putting improper words in his Dictionary and was
rebuked by him: 'Madam, you must have been looking for
- them'. To adopt such an attitude towards art and
literature would make the courts a board of censors.
An overall view of the obscene matter in the setting
of the whole work would, of course be necessary, but
the obscene matter must be considered by itself and
E
separately to find out whether it is so gross and its
obscenity so decided that it is likely to deprave and
corrupt those whose minds are open to influences of
this sort and into whose hands the books is likely to F
fall. In this connection the interests of our
contemporary society and particularly the influence of
the book etc. ·on it must not be overlooked. A number
of considerations may here enter which it' is not
necessary to enumerate, but we must draw.our attention
to one fact. Today our national a.nd regional languages G
are strengthening themselves by new literary standards
after a deadening period under the impact of English.
Emulation by our writers of an obscene book under the
aegis of this Court's determination is likely to
pervert our entire literature because obscenity pays
and true art finds little popular support. Only an
obscurrent will deny the need for such caution. This H
42 Slll'REME COURT REPORTS [1985] SUPP.3 s.c.R~
A consideration marches with all law and precedent on
tt.is subject and so ,considered we can only say that
where obscenity and art are mixed, art must so
preponderate as to throw the obscenity into a shadow
or the obscenity so trivial and insignificant that it
can have no effect and may be overlooked. In other
B words, treating with sex in a manner offensive to
public decency and morality (and these are the words
of our Fundamental law), judged of by our national
standards and considered likely to pander to
lascivious, prurient or sexually precocious minds,
must determine the result. We need not attempt to
bowdlerize all literature and thus rob speech and
c expression of freedom. A balance should be maintained
between freedom of sp,eech and expression and public
dec.,ncy and morality but when the latter is
substantially transgres,sed the former must give away.
We may now refer to Bo1tb's 354 U.S. 476 case to which
a reference has been made. Mr. Justice Brennan, who
D delivered the majority opinion in that case observed
that if obsenity is to be judged of by the effect of
an isolated passage or two upon particularly suscepti-
ble persons, it might well encompass material legiti-
mately treating with s,ex and might become - unduly
restrictive and so the offending book must be
E considered in its entirety. Chief Justice Warren on
the other hand made 'substantial' tendency to corrupt
by arousing lustful des:lres' as the test. Mr. Justice
Harian regarded as the test that must 'tend to
sexually impure thoughts'. In our opinion, the test to
adopt in our country (r•gard being had to our
F community mores) is that , obscenity without a
preponderating social purpose or profit cannot have
the constitutional protection of free speech and
• expression, and obscenity is treating with sex in a
manner appealing to the carnal side of human nature,
or having that tendency. Such a treating with sex is
G offensive to modesty and decency but the extent of
such appeal in a particular book etc. are matters for
consideration in each individual case.••
In holdi:ig the book Lady Chaterlay's Lover which had come up
for consideration before this Court to be obscene this Court held
H at P· 81:-
SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J, J 43
"There is no loss to society if there was a message in A
the book. The divagations with sex are not a
legitimate embroidery but they are the only
attractions to the COllllllOll man. When everything said i!l
its favour we find that in treating with sex the
impugned portion• viewed separctely and also in the
setting of the whole book pass the permissible limits B
judged of from our c01IP11111rl.ty standards and as there is
no social gain to us which can be said to
preponderate, we must hold the book to satisfy the
test we have indicated above."
The question of obscenity of a book within the meaning of s. c
292 I.P.C. again fell for consideration before this Court in the
Case of a..mdrakant Kalyimdas Xalroc!ar v. State of llabaraatbra,
[1970] 2 s.c.R. 80. In this 'case a complaint had been filed
agairu.t the appellant who was an author of short-story entitled
Shama which CSllll! to be published in the year 1962 Diwall Issue of
Rambha, a monthly magazine. On the basis of the complaint D
criminal proceedings had been started under s. 292 I.P.C. but the
Magistrate dealing with the complaint acquitted the accused of
the charge. The complainant and the State filed appeals against
this judgment of acquittal by the Magistrate. The High Court,
however, held the accused to be guilty of the charge and imposed
in convicting the accused a fine. Against the judgment of the E
High Court, an appeal had been preferred to this Court. While
dealing with the question of obscenity within the meaning of s.
292 I.P.c. this Court relied on the earlier decision in Banjit D.
lldeshi's case (supra) and referred to various observations made
therein. This Court observed at p. 82 :-
"It is apparent that the question whether a particular F
article or story or book is obscene or not does not
altogether depend on oral evidence because it is the
duty of the court to ascertain whether the book or
story or any passage or passages therein offend the
provisions of s. 292. Even so as the question of
obscenity may have to be judged in the light of the G
claim that the work has a predominant literary merit,
it may be necessary if it is at all required, to rely
to a certain extent on the evidence and views of
leading lltterateurs on that aspect particularly when
the work is in a laDg1.1Sge with which the Court is not
conversant. Often a translation may not bring out the
delicate nuances of the literary art in the story as H
44 SUPREME COURT REPORIS [1985] SUPP.3 s.c.R.
A it does in the languag1• in which it is written and in
those circumstances wlut is said about its literary
quality and worth by persons competent to speak may be
of value, though as ww• said in an earlier decision,
the verdict as to whether the boo~ or article or story
considered as a whole panders to the prurient and is
B obscene llllSt be judged by the courts and ultimately by
this Court."
This Court held that the book in question ,was not obscene
within the meaning of s. 292 I.P.c. and observed at p. 87:-
"We do not think that it can be said with any
c assurance that merely because adolescent youth read
situations of the typ<! presented in the book, they
would become depraved, debased and encouraged to
lasciviousness. It is possible that they may come
across such situations in life and may have to face
them. But if a narration or description of similar
situations is given in a setting emphasising a strong
D moral to be drawn from it and condemn the conduct of
the erring party as wrong as loathsome it cannot be
said that they have a likelihood of corrupting the
morals of those in whose hands . it is likely to fall
particularly the adolescent.
E In the passage at PP• 113-114 Nishikant takes Neela
out to show the sights of the city of Bombay but
instead takes her to a picture where after the lights
go off, seeing a soldier and his girl friend in front
kissing, they also indulge in kissing. Then as we said
earlier, when the love between them develops Nishikant
F wanted to marry but the father of the girl was unwill-
ing. Neela realising that their love could never be
consummated encourages him to bring it to a culmina-
tion. In this way they 1mjoy unmarried bliss for a few
days until Neela's fath1>r takes her away.
G We agree with the learned Judge of the High Court
that there is nothing in this or in the subsequent
passages relating to lleela, Vanita and Shama which
amounts to poionography nor has the author indulged in
a description of the sex act or used any language
which can be classed as wlgar. Whatever has been done
H in a restrained manner though in some places there may
SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J.] 45
have been an exhibition of bad taste, leaving it to A
the more experienced to draw the inferences, but
certainly not sufficient to suggest to the adolescent
anything which is depraving or lascivious. To the
literate public there are available both to the adults
and the adolescents innumerable books which contain
reference to sex. Their purpose is not, and they have B
not the effect of stimulating sex impulses in the
reader but may form part of a work of art or are
intended to propagate ideas or to instil a moral.
The concept of obscenity would differ from country to
country depending on the standards of morals of C
contemporary society. Wlult is considered as a place of
literature in France may be obscene· in England and
what is considered in both countries as not harmful to
public order and morals may be obscene in our country.
But to insist that the standard should always be for
the writer to see that the adolescent ought not to be D
brought into contact with sex, or that if they read
any references to sex in what is written whether that
is the dominant theme or not they would be affected,
would be to require authors to write books only for
the adolescent and not for the adults. In early
English writings authors wrote only with unmarried E
girls in view but society has changed since then to
allow litterateurs and artists to give expressions to
their ideas, emotions and objectives with full freedora
except that it should not fall within the definition
of lobscene' having regard to the standards of
contemporary society in India are also fast changing.
The adults and adolescents have available to them, a F
large number of classics, novels, stories and pieces
of literature which have a content of· sex, love and
romance. As observed in Udesb's case if a reference to
sex by itself is considered obscene, no books can be
sold except those which are purely religious. In the
field of art and cinema also the adolescent is shown G
situations which even a quarter.of a century ago would
be considered derogatory to public morality, but
having regard to changed conditions are more taken for
granted without in anyway tending to debase or debauch
the mind. What we have to see is that whether a class,
not an isolated case, into whose hands the book,
article or story falls suffer in their moral outlook H
46 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
or become depraved by reading it or might have impure
A
and lecherous thought aroused in thel.r minds. The
charge of obscenity nrust, therefore, be judged from
this aspect."
These two decisions of this Court lay down the legal
principles to be observed in deciding the question of obscenity
B
within the meaning of S. 292 I.P.C. As these two decisions of
this Court settle the legal prl.nciples involved, it do~s not
really become necessary to refer to the other authoritl.es cited
from Bar. We may, however, note that the novel I.ady Chatterleys
Lover which came to be condemned as obscene by this Court was
held to be not obscene in England by Central Criminal Court. In
England the question of obscenity is left to the Jury and the
c Jury decides whether the book in question is obscene or not. It
is of interest to note the summing up of Byrne, J., the learned
Judge who presided over the Central Criminal Court which was
deciding the question of obscenity of the novel Lady Chatterley's
Lover. The summing up by the learned Judge in the case of R. v.
Peuguine Books Ltd., as reported in Criminal Law Review, 1961 may
be reproduced.
D
"In summing up his lordship instructed the Jury that:
They must consider the book as a whole, not selecting
passages here and there and, keeping their feet on the
ground, not exercising questions of taste or the
functions of a censor. The first question, after
E
publication was: was the book obscene? Was its effect
taken as a whole to stand to deprave and corrupt
persons who were likely, having regard to all the
circwns tances, to read it? To deprave meant to make
morally bad, to prevent, to debase or corrupt morally.
To corrupt meant to render morally unsound or rotten,
F
to destroy the moral purity or chastity, to pervert or
ruin a good quality, to debase, to defile. No intent
to deprave or corrupt was necessary. The mere fact
that the jury might be shocked and disgusted by the
book would not solve the question. Authors had a right
to express themselves but people with strong views
G
were still members of the community and under an
obligation to others not to harm them morally,
physically or spiritually. The jury as men and women
of the world, not prudish but with liberal minds,
should ask themselves was the tendency of the book to
deprave and corrupt those likely to read it, not only
H
SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J.] 47
those reading under guidance in the rarefied A
atmosphere of some educational institution, but also
those who could buy the book for three shillings and
six pence or get it from the public library, possibly
without any knowledge of Lawrence and with little
knowledge of literature. If the jury were satisfied
beyond reasonable doubt that. the book was obscene, B
they must then consider the question of its being
justified for public good in the interest of science,
literature, art or learning or ether subjects of
general concern. Literary merits were not sufficient
to save the book, it must be justified as being for
the public good. The book was not to be judged by c
comparis~n with other books. If it was obscene then if
the defendant had established the probability that the
merits of the book as a novel were so high that they
outbalanced the obscenity so that the publication was
the public good, the jury should acquit."
D
In England, as we have earlier noticed, the decision on the
question of obscenity rests with the jury who on the basis of the
summing up of the legal principles governing such action by the
learned Judge decides whether any particular novel, story or
writing is obscene or not. In India, however, the responsibility
of the decision rests essentially on the Court. As laid down in E
both the decisions of this Court earlier referred. to, "the
question whether a particular article or story or book is obscene
or not does not altoghther depend on oral evide.nce, because it is
the duty of the Court to ascertain whether the book or story or
any passage or passages therein offend the provisions of S. 292
I.P.C." In deciding the question of obscenity of any book, story
or article the Court whose responsibility it is to adjudge the F
question may, if the Court considers it necessary, rely to an
extent on evidence and views of leading literary personage, i f
available, for its own appreciation and assessment and for
satisfaction of its own conscience. The decision of the Court
muSt necessarily be on an objective assessment 'of the book or
story or article as a whole and with particular reference to the G
passages complained of in the book, story or arti<:le. The Court
lllllSt take an overall view of the matter complained of as obscene
in the setting of the whole work, but the matter charged as
obscene must also be considered by itself and separately to find
out whether it is so gross and its obscenity so pronounced that
it is likely to deprave and corn1pt those whose minds are open to
H
48 SUPREME COURT REPORTS [1985] SUPP.3 $.C.R.
A influence of this sort and into whose hands the book is likely to
fall. Though the Court DDJet consider the question objectively
with an open mind, yet in the matter of objective assessment the
subjective attitude of the Judge hearing the matter is likely to
influence, even though unconsciously, his mind and his decision
on the question. A Judge with a puritan and prudish outlook may
B on the basis of an objective assessment of any book or story or ~
article, consider the same to be obscene. It is possible that
another Judge with a different kind of outlook may not consider
the same book to be obscene on his objective assessment of the
very same book •. The concept of obscenity is moulded to a very
great extent by the social outlook of the people who are
generally expected to read the book. It is beyond dispute that
C the concept of obscenity usually differs from country to country
depending on the standards of morality of contemporary society ~
in different countries. In our opinion, in judging the question
of obscenity, the Judge in the first place should try to place
himself in the position of the author and from the view point of
the author the judge should try to understand what is it that the
author seeks to convey and whether what the author conveys has
D any literary and artistic value. The Judge should thereafter
place himself in the position of a reader of every age group in
whose hands the book is likely to fall and should try to
appreciate what kind of possible influence the book is likely to
have in the minds of the readers. A Judge should thereafter apply
his judicial mind dispassionately to decide whether the book in
E question can be said to be obscene within the meaning of S. 292
I.P.C. by an objective assessment of the book as a whole and also
of the passages complained of as obscene separately. In
appropriate cases, the Court, for eliminating any subjective
element or personal preferen,ce which may remain hidden in the
sub-conscious mind and may unconsciously affect a proper
F objective assessment, may draw upon the evidence on record and
also consider the views expressed by reputed or recognised
authors of literature on such questions if there be any for his
own consideration and satisfaction to enable the Court to
discharge the duty of making a proper asseSSJllent.
G In the light of the above discussions we now proceed to
consider whether the novel in question is obscene or not·.
The novel centres round one Sukhen who can- be called the
hero in this book and who figures as the main character. The ~
novel seeks to express the feelings, thoughts and actions of
H Sukhen and to portray his character. This the author seeks to do
SAMARESH BOSE V• AMAL MITRA [A.N. SEN, J. J 49
through Sukhen himself who narrates his own experiences, A
feelings, thoughts and actiona in his own words. It is Sukhen who
mainly tells the readers his own story in his own words.
Sukhen is the youngest son of his parents. The picture of
his family life is, indeed, in the nature of a refiection of what
is commonly now found in very many families in the society• B
Sukhen's father holds a good job and the only interest he haa in
life is to make money. He takes bribes from every source and he
manages to see that bribes are paid to hiilt. Office, money and
bribes are the only things Sukhen's father appears to be
concerned with. Sukhen's mother who is painted as a delicate and
beautiful woman mixed with his father's friends freely and also c
would not hesitate to bestow favours on them. Sukhen, it appears,
was fond of his mother and his mother was also fond of Sukhen.
Unfortunately, Sukhen's mother died very earlier when Sukhen was
only a child. Sukhen had two elder brothers •. Both of them are
painted as men of affairs and men of the world. They belonged to
different political parties on which each of th""1 had gained D
sufficient hold and they exploited their position in the
political. parties for their personal ends. They do not practise
what they preach and they have both a good deal of weakness for
drin)<s and women. Sukhen indeed developed a hatred for the two
brothers for their hypocracy. Though Sukhen had a soft corner for
his father, he had neither great love nor respect for him and he E
would often accuse him for bringing him into the world. There was
an old ·servant in the family who used a look after Sukhen and it
appears that Sukhen had some affection for him. Brought up in
such an atmosphere at the house bereft of any love and affection
and proper guidance, Sukhen gradually slided into slimy life. He
with other students participated in a fast which was organised by
the students of the College in which he was studying as a protest F
against some high-handed and arbitrary action of the college
authorities and had, in fact, come into lime-light, as the fast
had succeeded in achieving the object for which fast was
undertaken after the fast had lasted for five days. While he was
on fast he came in close contact with a girl called Shikha, who
was a college student and who appears to be the other important G
personality in the novel. Sukhen developed a weakness for Sikha.
The fast undertaken by Sukhen and hi.s association with Sikha in
the initial stage did not bring about any marked change in his
character. He had started leading the life of a desperate
youngman who was considered to be a Goonda, dreaded by the
community, particularly the richer section. Sukhen got addicted
to wine and women. Shikha with whom Sukhen has come in contact H
50 SUPREME COURT REPORTS [1985) SUPP.3 s.c.R.
A develope<I a liking for Sukhen inspite of the kin<! of life Sukhen
led. The recklessness on the part of Sukhen, his boldness, his
hatred for hypocrites, political leaders who thrive on others and
frank and candid criticism of social evils appear to have
attracted Shikha to Sukhen. Various ineidents are narrated mostly
in Sukhen's words to depict various traits of Sukhen's character.
B As already in<licated, Sukhen had hatred for hypocrites an<! false
political leaders who participated in politics for their own
personal en<ls. He had also hatred for teachers who seek to keep
hold on the student community for serving their own en<ls by
creating rift amongst the students an<! by completely ignoring the
interests of the student conununity, for businessmen and business
executives who exploit the workers, for parents who do not have
c any scruples in making money, remain obssessed with making money
and do not take care of their children an<! for those people who
under the guise of gentlemen seek to satisfy their lust an<! do
not spare even young girls. Sukhen had a restless mind and he
would often feel that there was something missing in his life and
would often suffer from a peculiar feeling when left alone,
though in society he was dreaded and regarded as a goonda. It
D appears that as a result of his association with Shikha, an<! the
closer and more intimate the association l>ecame, a kin<! of change
was coming over. The feeling of restlessness was gradually
passing away an<! he was fin<ling peace and seeing some kin<! of
. meaning in life. Shikha' s association brought some peace an<!
solace to his restless life. Shikha kindled in him the human
E feelings which had remained dormant in him and had in fact been
perverted. Because of his association with Shikha and Shikha' s
love for him, Sukhen was about to change his ways of life to lead
a meaningful and useful life. As this change was gradually coming
over the Sukhen he fell s victim of the violence of rival
politieal parties and he succumbed to the injuries inflicted on
F him by rival political groups. This in substance is the story.
We shall now refer at some length to some of the portions
of the book challenged as obscene and so found by the courts
below.
G The story begins with the scene showing that Sukhen was
trying to catch a beautiful butterfly moving about in the room
·- where Shikha was lying on the bed. His attempt to catch the
butterfly initially failed and Sukhen used a 10!'8 pole to push
down the butterfly which was resting in the wall at a height
beyond his reach. Shikha protested, apprehending that the :~
H butterfly would be hurt. In his attempt to catch the butterfly,
SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J. J 51
Sukhen did hurt the butterfly which fell down with one of the A
wings severed. Shikha takes the butterfly in one of her pal.ms
with her face and body turned against Sukhen towards the wall.
Seeing Shikha in that position with the butterfly on her palm and
Shikha trying to fix the severed wing in its place in the body of
- the butterfly, Sukhen is reminded of what happened to Zina, a
daughter of one of the officers of the factory at the picnic
party of the factory owner and its big executives. Sukhen
remembers how at that party Zina, a girl of about 14 years.of age
B
was being fondled by the elderly persons holding high posts in
the factory and whom Zina would call 'Kaku' (Uncle). Sukhen also
recalls that how he thereafter had taken Zina away from those
persons to a surgarcane field and ha4 an affair with her there. c
This part of the affair with Zina in the sugarcane field had been
considered to be obscene. Sukhen feels that the butterfly resting
in the pal.ms of Shikha resembled Zina in the sugarcane field
while she was there with him. After remembering this incident
Sukhen turns to Shikha and goes near her. There he notices
Shikha' s dress and he finds Shit.:ha had only a loose blouse with D
nothing underneath and a good part of her body was visible and
there is some description by Sukhen of what was visible and of
his feelings on s·eeing Shikha ill that position. Sukhen' s kissing
Shikha and going to bed with Manjari, his friend's sister, are
other parts of the book considered obscene. The affairs of
Sukhen's 'Mejda' (second elder brother) with the maid-servant's E
daughter and Sukhen's description of the same have also been hold
to be.obscene.
We have read with great care. It is to be remembered that
Sarodiya Desh is a very popular journal and is read by a large
number of Bengalies of both sexes and almost of all ages all over
India. This book is read by teenagers, young boys, adolescents, F
grown-up youngmen and elderly people. We are not satisfied on
reading the book that it could be considered to be obscene.
Reference to kissing, description of the body and the figures· of
the female characters in the book and suggestions of acts of sex
by themselves may not have the effect of depraving, debasing and
encouraging the readers of any age to lasciviousness and the G
novel on these couots, may not be considered to be obscene. It is
true that slang and various unconventional words have been used
in the book. Though there is no description of any overt act of
sex, there can be no doubt that there are suggestions of sex acts
and that a great deal of emphasis on the aspect of sex in the
lives of persons in various spheres of society and amongst
various classes of people, is to be found in the novel. Because H
52 SUPRF.ME COURT REPORTS [1985] SUPP.3 s.c.R. ,_
of the language used, the episodes in relation to sex life
A
nsrrated in the novel, appear vulgar and may create a feeling of
disgust and revulsion. The mere fact that the various sffairs and
episodes with emphasis on sex have been nsrrated in slang and
wlgar language may shock a reader who may feel disgusted by the
book does not resolve the question of obscenity. It has to be
remembered that the author has chosen to use such kind of words
B
and langusge in expressing the feelings, thougts and actions of
Sukhen as men like Sukhen could indulge in to make the whole
thing realistic. It appears that the wlgar and slang language
used have greatly influenced the decision of the Chief Presidency
Magistrate and also of the learned Judge of the High Court. The
observations made by them and recorded earlier go to indicate
that in their thinking there has been kind of confusion between
c wlgarity and obscenity. A wlgar writing is not necessarily
obscene. Vulgarity arouses a feeling of disgust and revulsion and
also boredom but does not have the effect of depraving, debasing
and corrupting the 1D0rals of any reader of the novel, whereas
obscenity has the tendency to deprave and corrupt those whose
minds are open to such immoral influences. We may observe that
characters like Sukhen, Shikha, the father and the brothers of
D
Sukhen, the business executives and others portrayed in the book
are not just figments of the author's imagination. Such
characters are often to be seen in real life in the society. The
author who is a powerful writer has used his skill in focussing
the attention of the readers on such characters in society and to
describe the situation 1D0re aloquently he has used unconventionsl
E
and slang words so that in the light of the author's
understanding, the appropriate emphasis is there on the problems.
If we place ourselves in the position of the author and judge the
novel from his point of view, we find that the author intends to
expose various evils and ills pervading the society and to pose
with particular emphasis the problems which ail and afflict the
F
society in various spheres. He has used his own technique, skill
and choice of words which may in his opinion, serve properly the
purJ?Ose of the novel. If we place our selves in the position of
readers, who are likely to read this book, and we must not forget
that in this class of readers there will probably be readers of
both sexes and of all ages between teenagers and the aged, we
G
feel that the readers as a class will read the book with a sanse
of shock, and disgust and we do not think that any reader on
reading this book would become depraved, debased and encouraged
to lasciviousness. It is quite possible that they come across
such characters and such situations in life and have faced them ....
or may have to face them in life. On a very anxious consideration
H
SAMARESH BOSE V• AMAL MITRA [A.N. SEN, J.] 53
and after carefully applying our judicial mind in making an A
objective assessment of the novel we do not think that it can be
said with any assurance that the novel is obscene merely because
slang and unconventional words have been used in the book in
which there have be.en emphasis on sex and description of female
bodies and there are the narrations of feelings, thoughts and
actions in vulgar language. Some portions of the book may appear B
to be vulgar and readers of cultured and refined taste may feel
shocked and disgusted. Equally in some portions, the words used
and description given may not appear to be in proper taste. In
some places there may have been an exhibition of bad taste
leaving it to the readers of experience and maturity to 'draw the
necessary inference but certainly not sufficient to bring home to C
the adolescents any suggestion which is depraving or lascivious.
We have to bear in mind that the author has written this novel
which came to be published in the Sarodiya Desh for all classes
of readers and it cannot be right to insist that the standard
should always be for the writer to see that the adolescent may
not be brought into contact with sex. If a reference to sex by D
itself in any novel is considered to be obscene and not fit to be
read by adolscents, adolscents will not be in a position to read
any novel and "will have to read books which are purely
religious". We are, therefore, of the opinion that the Courts
below went wrong in considering this novel to be obscene. We may
observe that as on our own appreciation of the novel, we are E
inclined to take a view different from the view taken by the
Courts below, we have taken the benefit of also considering the
evidence given in this case by two eminent personalities in the
literary field for proper appreciation and assessment by us. It
has already been held by this Court in two earlier decisions
which we have. already noted that "the question whether a
particular book is obscene or not, does not altogether depend on F
oral evidence because it is duty of the Court to ascertain
whether the book offends the provisions of s. 292 I.P.c." but "it
may be necessary if it is at all required, to rely to a certain
extent on the evidence and views of leading litteraturs on that
aspect particularly when the book is in a language with which the
court is not conversant". It is indeed a matter of satisfaction G
for us that the views expressed in course of their evidence by
the two eminent persons in the literary field are in accord with
the views taken by us.
We must, therefore, allow this appeal. We set aside the
judgment of the Courts below and the conviction recorded and
H
54 SUPREME COURT REPORTS (1985] SUPP.3 s.c.R.
sentenced imposed on the appellants. We acquit the appellants of
A
the chsrges framed against them and we hold thst the novel is not
obscene and does not offend s. 292 I.P.C. We direct thst the
fine, if paid by the appellants, shsll be refunded to them. We
B make no order as to costs.
s.R. Appeal allowed.
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