(1) This is a rule arising out of the revisional application filled by the accused petitioner buddhadev bose against his conviction under section 292 and 293 of the indian penal code passed by mr. H. S. Barari, the additional chief presidency magistrate, calcutta convicting him along with one supriya sarkar of m. C. Sarkar and sons, publisher and gopal chandra roy of navani printing works as printer of the bengali book 'raat bhore bristi' written by the said accused petitioner buddhadev bose. The accused - petitioner has been convicted both under section 292 and 293. He has been sentenced to pay a fine of rs. 200/ - in default to undergo simple imprisonment for one month under section 292 but no separate sentence was answered under section 293. The accused supriya sarkar of m. C. Sarkar and sons (pvt.) ltd. The publisher and gopal ch. Roy of navani printing works (pvt.) ltd. The printer of the book were also convicted under section 292 and 293 of indian penal code and sentenced to pay a fine of rs. 100/ - each in default s. I. To one month but they have not come up before under section the learned magistrate also ordered for seizure and destruction of all available copies of the said bengali novel 'raat bhore bristi' (2) Mr. Karuna sankar roy appeared for the accused - petitioner and mr. S. G. Poddar for the state and mr. Barendra nath sur appeared for the complainant opposite partly no. 2 niladri guha. We must say at he outset that the learned advocates argued the case with commendable abilities.

(3) The rule was issued by our learned brother n. C. Talukdar, j. Referred this matter to the division bench as the learned magistrate ordered confiscation of books in property and under proviso of rule 9 (2) of chapter ii of the appellate side rules the matter is to be heard by division bench. Hence this matter came up before us.

(4) The petitioner has been convicted because according to the prosecution the book 'raat bhore bristi'is an obscene publication which to deprave and corrupt the young readers whose minds are open to immoral influence and into whose hands this book may fail. The book according to the prosecution would suggest to the minds of young people of either sex the thoughts of most impure and libidinous character - the author has expressed and suggested in the book impure, indecent and lewd ideas and the book is detrimental to the special moralities of our contemporary society. According to the prosecution there are several passages in the book marked as exhibits which are grossly indecent, immoral and obscene. The defence of the accused - petitioner was that the book is not obscene and is a work of art of high order and he is innocent of the charge.

(5) Before the learned magistrate the prosecution examined three witnesses, one sambhunath banerjee p. W. 1 who is a lecturer of english of moulana azad college, calcutta, niladri guha p. W. 2 who was a complainant before the learned magistrate and a law student of the calcutta university and p. W. 3 is one arun kumar sarkheil an examine of higher secondary examination and according to all the prosecution witnesses the book after reading gave them the impression that it was highly obscene.

(6) The defence examined four witnesses. D. W. 1; dr. Sisir chatterjee, ph. D. , professor and head of the department of english of jadavpur university, dr. Manasi dasgupta, ph. D. , principles of a women's college who had her doctorate degree from a university of the states cornell (u. S. A.) and is an expert as a social psychologist. D. W. 3, mr. Arup kumar bose, junior clerk of m/s. Martin and burn and d. W. 4, mr. Rashidul haque, a solicitor of m/s. Sanderson and morgan sand also an advocate. According to all the d. Ws. The book is not at all obscene but is a book of very high standard of literature.

(7) Of course whether a particular 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 any passage there in offend the provision of section 292 of the indian penal code. Whether the book is obscene or not is a matter for the court to decide but the oral evidence no doubt may assist the court in finding the effect on the minds of the witnesses i. E. A cross section of reading public who have read the book which may help the court in coming to its decision. No doubt the impression of the reader after reading the book is bound to be subjective but as stated earlier nonetheless it may throw some light and it is the duty of the court to decide the matter by taking an overall picture of the entire book.

(8) Mr. Karuna sankar roy, inter alia, attacked the order of the learned magistrate mainly on two grounds. Firstly, mr. Roy submitted that the magistrate should have decided this case according to the amended section of 292 i. P. C. And not according to the original section which was amended in september, 1969. Mr. Roy's contention is that if the exception in the amended section is applied to this case his client would have been straight away acquitted. As the art in the impugned book 'raat bhore bristi' was preponderating and that the publication thereof was in the interest of literature and or other objects of general concern and therefore justified as being for the public good.

(9) Next contention of mr. Roy was that the learned magistrate in his judgement did not refer to or consider the evidence of d. W. 3 and d. W. 4 at all and non - consideration of their evidence has caused serious infirmities in the judgement.

(10) The author buddhadev bose writes in this book 'raat bhore bristi' the life of two characters nayanangshu the husband and malati his wife. The book is written in a flash back style, sort of an autobiography or reminiscences both of malati and nayanangshu. First and third chapters of the book depict the life from her childhood but with more emphasis on her married and conjugal life and in the second and fourth chapter nayanangshu is ruminating with emphasis on his conjugal life and the last chapter, chapter v is an epilogue of the book. The duration or time as described in the book is from 9 p. M. At night to early morning.

(11) We have read the book thoroughly; it certainly contains some ugly, indecent or vulgar episodes of the life mainly sex life both of nayanangshu and malati but the question is do they come within the four corners of section 292 of the penal code? (12) In a very nutshell the author narrates the story of how after marriage nayanangshu brought his wife malati to his joint family house at beliaghata which evidently stands for very conservative old - fashioned hindu joint family of north calcutta with very conservative old ideas of values. It was at the behest of nayanangshu that the couple shifted to south calcutta which stood for modern way of life in ballygunge away from joint family. They spent about 12 years quite happily there and had a daughter named bunni who was about 8 years old when the story opens. The book depicts how the life of malati was moulded by nayanangshu, how nayanangshu taught her to be individualistic and to be modernised with highly progressive ideas and ways of life. Nayanangshu tried to impress on malati the idea of modern western culture and introduced malati to the host of his male friends. Malati of course first resented and did not like this type of modern living but gradually she also became sophisticated. Jayanta was a friend and acquaintance of nayanangshu, may be of the same age, who used to come to nayanangshu's house off and on and gradually became intimate with malati and develop a linking for her. Incidentally this jayanta also had an ailing wife and family. Nayanangshu was very modern educated, cultured and extremely polished and polite young man. Though he started his life a lecturer in a college but within one year of his marriage he became a high salaried executive in a mercantile firm and had a decent income and standard of living. It is due to nayanangshu's good manners and culture which prevented him from interfering with the gradual friendship and intimacy that was growing between malati and jayanta which did not go unnoticed. Jayanta comes from a lower middle class society who is trying to make out a living with difficulty as a publisher of a magazine but he was more practical and masculine with a very strong personality. With the approach of jayanta and as the intimacy grew, malati began to feel that nayanangshu had no real love for her but only had attraction for her body where as jayanta had a feeling for and very considerate to her. This feelings encouraged malati to become sexually frigid towards nayanangshu and more and more these were amorous approaches by jayanta towards her and until on a rainy night when nayanangshu was away from his house and bunni was also away to her grandmother jayanta and malati being only together in the house slept together and committed adultery. Nayanangshu returned at about midnight when jayanta had already left but he found that his wife was sleeping in half naked posture keeping the door ajar but he could infer that she had committed adultery with jayanta. It was nayanangshu's effeminate character his good manners and lack of personality which prevented him from desising his wife fro becoming intimate with jayanta which encouraged malati in growing attachment and love for jayanta and love for nayanangshu dissipated completely and when the dislike of her husband begins nayanangshu does nothing to mend matters not because he was indifferent but he was far too delicate and reflective to take any definite action. Both nayanangshu and malati knew that there was little love for each other at least malati started practically hating her husband.

(13) Though there was an end of love but for the sake of bunni there could not be any divorce and the book ends with a tragedy both for the husband and wife as they have to live together hereafter though the love for each other has completely disappeared. The book ends with a tragic ring.

(14) This is shortly the story in the book 'raat bhore bristi' but the master writer as he is, the accused - petitioner has narrated many scenes which are really vivid and impressive. The author in his written statement says, ?the whole book is written in a poetic metaphorical style and has a pessimistic philosophical foundation?. We can only say the author was not too far wrong. The book no doubt contains certain passages and sentences which have appeared to us to be vulgar and/or indecent or improper particularly the scenes in the prostitute's house or nayanangshu's encounter with krishnagar girls or certain marital and/or extra marital relationship but we must say that though the ideas one gets after reading this portion may be vulgar or crude the author has not used any single indecent or vulgar or unprintable word in the book. In the conversation between the prostitute and nayanangshu there may be suggestions of indecent behaviour but not a single sentence or word would be regarded as salacious. This book may or may not be a very good piece of art. This book may be liked or may be disliked many but does it conform to the test of obscenity that is the question? (15) Section 292 of the i. P. C. Before the latest amendment reads. ?whoever sells. Or in any manner puts into circulation or for the purpose of sale ?. Makes produces or has in his possession any obscene book or any other obscene object whatsoever???. Shall be punishable with imprisonment?. Now, therefore section 292 makes obscenity an offence but penal code does not define obscenity.

(16) Our courts have adopted the definition of obscenity from the ?judgement delivered by cockburn c. J. In hicklin's case 1863 3 q. B. 371, cockburn, c. J. Says ?i think, the test of obscenity in this, where the tendency of matter charged as obscenity is to deprave and currupt those whose minds are open to such immoral influence, and into whose hands a publication of this sort may fall ???it is quite certain that it 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 is the test propounded by cockburn, c. J. In hicklin's case which have been approved in (3) ranjit d. Udeshi v. State of maharashtra a. I. R. 1965 s. C. 881.

(17) In the said judgement, hidyatulla, j. , as his lordship then was has also held that treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.

(18) It is, therefore, the duty of the court to consider the obscene matter by talking an overall view of the entire work and to determine whether the impugned passages are so likely to deprave and corrupt those whose minds are open to such influences and in whose hands the book is likely to fall and in doing so one must not over - look the influence of the book on the social morality of our contemporary society. Jaganmohan reddy, j. Of the supreme court has laid down this principle in (1) chandrakant kalyandas kakodkar v. The state of maharashtra a. I. R. 1390.

(19) Mr. Roy argued that hicklin's test has whittled down in course of years because the adolescent or young mind are no longer sine qua non in deciding obscenity and this has been the modern trend because not only that phrase is absent in kakodkar's (supra) case which was prior to amendment, it has been held that the adolescent is not the critarion. We do not think that it can be said with any assurance that merely because if some adolescent youths read situation of the type presented in the book, they would become depraved debased and encouraged to lasciviousness the book must be presented. But if a narration or description of similar situation is given in a setting emphasising a strong moral to be drawn from it and condemns the conduct of the erring party as wrong and loathsome it cannot be said that they have a likelihood of corrupting the morals of those in whose hands it is likely to fall.

(20) In the book there may have been an exhibition of bad taste, leaving it to the more experienced to draw the indecent inferences, but certainly not sufficient to suggest to the adolescent in general anything which is depraving or lascivious. What we have to see is that whether a class of modern age not an isolated case, into whose hands the book, article or story falls may suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts inflaming the passion aroused in their minds. The charge of obscenity must, therefore, be judged from his aspect.

(21) If the purpose of the book is not merely to arouse lustful desire, and they have not the effect of only stimulating sex impulses in the reader but may from part of an artistic work or are intended to propagate ideas or to instil a moral, in that event a book cannot be struck down as obscene. Even in ranjit udeshi's case, a. I. R. 1965, s. C. 881, the supreme court has held that ideas having 'social importance will prima facie be protected unless obscenity is so gross and decided that the interest of the public dictates the other way. ' the matter charged must have a tendency to deprave and corrupt. It is not necessary to compare one book with another to find the extent of permissible limit, where obscenity and art are mixed to get the benefit, the art must be so prepondering as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it cannot affect and may be overlooked. Obscenity has also been defined as treating with sex in a manner appealing to the carnal side of human nature, or having that tendency. Such a treating with sex is offensive to modesty and decency but the extents of such appeal in a particular book etc. Are matters for consideration in each individual case. We are laying down these principles or standards from which we shall have to judge whether this book ext. 1 is obscene or not.

(22) Mr. Poddar cites an unreported case of samaresh bose v. The state a single bench judgment of our learned brother a. C. Roy j. But the words used in that book are really slang and some of them unprintable and as stated earlier each book should be judged separately.

(23) The court is in a way guardian angel of the society and will certainly protect if the court is of the opinion that such publication intends to arouse sexual desire or tends to inflame sexual passion. There is not much difference between pornography and obscenity. Pornography is only an aggravated from of obscenity. Mr. Roy has urged that from the very word, obscene means which tends to arouse in the mind of the reader certain scenes which are lascivious or lecherous and its extent and from this standard the book will have to be judged.

(24) It is not the duty of the court to promote public decency and morality or to improve them but it is the duty of the court, to see that if any one exceeds the limit of such public decency and morality and propagate only the carnal side of human being then considering the contemporary morals of the society the court should strike down such publication as obscene. It is certainly the duty of the court to protect degeneration if court is of the view that such publications lead to sexual degeneration.

(25) The courts have held that the concept of obscenity would differ from country to country depending on the standard of morals of contemporary society. What is considered as a piece of literature in france may be obscene in england and what is nor considered in both countries harmful to the public order and morals may be obscene in our country. Similarly what was considered to be obscene or vulgar 50 years ago may be quite normal and proper to - day. What was improper before two world wars may be perfectly valid and proper today. In our view that is perhaps the reason why obscenity has not been purposely defined by the law markers in the statute but has been left to court to decide considering the contemporary modes of the society. After all society is changing and is dynamic. Books which were considered to be immoral in our school days may be found now in any school library and available to the students. The standard of tastes and the values have changed considerably after the two world wars and are changing and we shall have to judge the publication from that aspect trend as well. Social changes will have to be considered.

(26) Now coming to the point urged by mr. Roy about the applicability of the amended section, the amended section has practically kept the old section in toto but has only enlarged the exception. Exception says: ?this section does not extend to (a) any book, pamphlet, paper, writing, drawing, painting representation or figure - (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper writing drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern or ??. ? now the argument of mr. Roy is that even if it is held that this book 'raat bhore bristi' is obscene this comes within the exception that this is a publication which is for the public good inasmuch as it is an object of art and/or literature. The amended section came into force from september 1969 but the petition of complaint was filled on 12th july, 1969.

(27) When the learned magistrate issued summons that was prior to amended section which came into force on the 7th september, 1969. Mr. Roy concedes that a penal section unless made expressly retrospective is not retrospective. But section 292 being in the nature of a reformative law the strict rule of construction for making it retrospective unless expressly made will not apply and in support of his contention, mr. Roy relies on certain decisions of this country as well as of england (infra). Mr. Poddar has submitted that if this amended section applies then the case should be sent back to the court for committal as under the amended section the offence will be triable by court of sessions and punishment has been enhanced. Mr. Roy has cited a. I. R. 1965 s. C. Page 444, 10 q. B. D. 195, (1968) a. E. R. 647 at 649. In our opinion the amended section is not applicable as the case cited by mr. Roy does not apply in all force to the facts and circumstances of this case. Mr. Poddar puts a question that if amended section ap0plies to this case firstly this has to go back for being tried by the court of sessions and secondly had it been tried according to the amended section even then that would not have been for the benefit of the accused in the present case. Be that as it may, as stated earlier, we do not think that the amended section will apply to the present case which was initiated about two months prior to the coming into force of the amended section penal laws are prospective and not retrospective.

(28) We have gone through this book page by page thoroughly and the learned counsel appearing for the parties have also drawn our attention to the various passages in this book. We have to read this book over and over again with the learned lawyers. Mr. Roy drew our attention to the charge to the jury in the case reported in (4) rex v. Martin, 1954 2 a. E. R. 683, where the learned judge said that there could not be any obscenity because throughout the impugned book one heard the note of impending disaster and that in the life of the philanderer there was no happiness. Drawing inspiration from this mr. Roy suggests that the tragedy in the life of nayanangshu and malati referred to in this book for the single act of adultery should also not be termed as obscene. Mr. Roy also drew our attention to certain impugned passages made exhibits which will not deprave and corrupt any body by exciting sexual desire or lascivious thought. On the other hand mr. Roy drew our attention to certain passages of the book which to our mind are certainly poetic and artistic.

(29) We agree with mr. Poddar that sex is preponderant in this book. The main theme of the book is that in a love between husband and wife sex plays the prominent part and in conjugal life estrangement or mal - adjustment is bound to happen if sex urge disappears and love between man and woman must be love for the body. Whether we agree with this theme, whether this theme is right or wrong is redundant from the point of view of deciding whether the book is obscene or not, what is important is whether the passages marked as exts 1 to 38 in the book are obscene from the standard laid down by under section as stated earlier, the author has not used any vulgar, any immodest or unprintable word in the book. True in certain passages the author has tried to draw the imagination of the reader to certain vulgar episodes but in none of them we can say that the behavous or prurient interest has been instigated. True all men are not equal. There may be certain abnormal hypersexed persons who may get sexual urge in reading this book. We cannot completely exclude such readers but according to us that is not the test for judging obscenity. We shall have to take average men or average women as has been laid down in kakodkar's case ?class of persons with average intelligence, average culture and average education,? taking that into consideration we cannot say that this book ?raat bhore bristi? mark ext. 1 or any passage thereof are obscene.

(30) The petitioner buddhadev bose filed a written statement where he has narrated his defence for writing and published this book. We can reproduce a few paragraphs from the petitioner's written statement. Incidentally the accused petitioner is the receipent of an academy award and a 'padma bhusan' from government. Of india.

(31) In the first paragraph he stated that 'raat bhore bristi' is a novel about an unhappy marriage or about unhappy human beings whose souls it minutely explores. In fact it is a psychological essays written in the novelistic form. Its theme is the relationship is analysed through the lives of nayanangshu and malati, beginning with the crisis of adolescene and upto a point where they fail to achieve stability in marriage ??. On the surface, it is a conflict between old and new sets of values as represented by the joint family in nayanangshu's beliaghata flat. The former offered security and comfort on a lower level of consciousness, but nayanangshu opted for freedom with its attendant risks ???. But the trial ends in failure and gives the novel its tragic ring.

(32) The reader ends the book with a sad heart and the impure thoughts, if any, disappeared at the end. The author is certainly a powerful writer with a command on bengali language. It is a short story but every word speaks volume.

(33) Because the book is written in that lyrical style by such a powerful writer the vulgar episodes or the indecent picture depicted in a few incidents, practically pales into insignificance when the book is read as a whole and the reader feels pity for both malati and nayanangshu at the end and this feeling persists in the mind of the reader and as such we cannot hold that the book is obscene. We, therefore, make the rule absolute, set aside the order of conviction and sentence, fine if paid should be refunded. We also set aside the order of seizure and destruction of the book. N. C. Mukherjee, j. : i agree. Rule made absolute.