Indian Penal Code, section 292, ingredients and scope of - Obscenity, concept of Duty of the Court in judging the question of obscenity, explained Whether the novel under the caption 'Prajapati' published in "Sarodiya Desh" in the Bengali Journal Desh contains matters which are obscene attracting liability under section 292 read with section 109 I.P.C. of the author and the printer and the publisher.

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 number of the Bengali Journal 'Desh') for the Bengali year 1374 B.S. The novel centres round one Sukhen who figures as the main character and seeks to express the feelings, thoughts and actions of Sukhen and to portray his character. This the author seeks to do through Sukhen himself who narrates his own experiences, feelings, thoughts and actions in his 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 women and later gradually slided into slimy life from that of the atmosphere he 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, Sitangshu Kumar Dasgupta, the second appellant is the publisher and the printer of the journal -containing the said publication.

On the 2nd of February, 1968, Amal Mitra, the second respondent, and a young Advocate, made an application in the Court of the Chief Presidency Magistrate at Calcutta complaining; (a) that the said novel "Prajapati" contains matters which are obscene; (b) that both the accused parsons 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 (c) that therefore, both the accused persons have committed an offence punishable under section 292 Indian Penal Code read section 109 thereof.

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 Calcutta by his judgment dated 11th February, 1968. During the trial on behalf of 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 Guha (the Professor and Head of the Department of Comparative Literature at Jadavpur University who had delivered lectures Bengali literature before various literary 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 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 moral aspects of the hero's character and that the novel has great social and moral value. по

The Trial Judge did not place any reliance on the testimony 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 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 by the Trial Judge under section 292 J.P.C. read with 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 months each. The Trial Judge also directed that the pages from 174 to 226 of the journal be destroyed under the provisions of section 521 Criminal Procedure Code after the period of appeal was over.

Against the judgment and order passed by the Trial Judge 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 imposed by the Chief Presidency Magistrate on the two accused persons. The Criminal Appeal Number 106/1969, and the Criminal Revision Number 299 of 1969 were heard together and 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. 299/1969 and dismissed the appeal affirming the conviction and sentences imposed on 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 that 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.