N.R Chatterjea, J.:— The petitioner has been convicted by the Deputy Magistrate of Cuttack under section 292 of the Indian Penal Code for having printed for sale an obscene book called the Natu Chori, or the “Theft of tops,” and sentenced to pay a fine of Rs. 50.

The book, or rather booklet, consists of seven small pages, and purports to be the composition of one Dina Sundari, said to be an Uriya poetess. It purports to deal with an incident in the lives of Radha and Krishna taken from the Uriya Haribans, a sacred book of the Uriyas. It passed through several editions in print, and is said to Lave been in palm-leaf manuscript for about a hundred years. It was registered 15 or 20 times previously without objection, and appeared in the Bengal Library Catalogue of Books in the Calcutta Gazette as a mythological publication. It was printed in the Star Press, of which the petitioner is the proprietor.

The plea of the accused was that the book is not obscene within the meaning of section 292 of the Indian Penal Code, and that he is not guilty. He was tried summarily by the Deputy Magistrate of Cuttack, who, however, recorded the evidence in full. The learned Deputy Magistrate held that the book was obscene and convicted and sentenced him as stated above. A Rule was granted by this Court to show cause why the conviction and sentence should not be set aside on the ground that the publication complained of is a recognized religious work which has been published in its present form for the last hundred years, and it, therefore, does not fall within the meaning of section 292 of the Indian Penal Code.

The Officiating Advocate-General, who appeared to show cause on behalf of the Crown, has contended in the first place that the finding of the learned Deputy Magistrate that the book is obscene is a finding of fact, and that this Court should not, therefore, interfere. The learned counsel for the petitioner on the other hand strongly urged that, as a question of considerable importance was involved in the case, the Court should look into the facts. Having regard to the importance of the case, counsel on both sides were allowed to argue the case on the merits.

The principles upon which the obscenity of a publication are to be determined are well established. In the leading case of Reg. v. Hicklin, Cockburn, C.J stated: “The test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands such a publication might fall.” If in fact the work was one of which it was 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 then its sale was a criminal offence, and it was immaterial that the defendant had in view an ulterior object which was innocent or even laudable see also Steele v. Brannan The principles laid down in the above cases have been followed in this country in several cases: see Queen-Empress v. Parashram Yeshvant; Empress v. Indarman; Emperor v. Hari Singh.

These principles are not disputed on behalf of the Petitioner and cannot be disputed, but what, is contended on his behalf is that the publication is a religious work, that the incident is taken from the Haribans, a sacred work among the Uriyas, and deals with a love story of Radha and Krishna which has a deep allegorical meaning, and which it is a sacrilege to call obscene, that similar passages occur in various other religious works of the Vaishnabs such as the Srimat Bhagbat, the Gita Govinda, and in many classical works in Sanskrit, Bengali and Uriya. The learned counsel for the Crown contended on the other hand that, though a religious or classical work is not obscene merely because it contains some obscene passages, and although the Haribans may be a sacred book with the Uriyas, the publication of some obscene passages from such a book, divested from the book itself, cannot be justified, and would fall within the purview of section 292 of the Indian Penal Code. It was contended that the Natu Chori was not itself a recognised religious work, and though there might be objectionable passages in the Haribans. there is no reason why the obscenity of it should be brought out in an aggravated form in a cheap work (priced at 2 pice only), where only a few passages had been extracted dissociated from their context for the delectation of those people whose state of mind was such as would easily fall prey to depraved and corrupt thoughts contained therein.

The defence did not examine any witnesses, but cross-examined the prosecution witnesses, and put in certain books in evidence, such as the Gita Govinda (in Uriya), the Sanskrit Gita Govinda in Bengali character, the Raghuvansa, the Bible, the Uriya Haribans and several other editions of the Natu Chori. Some of the books and certain passages in others were marked exhibits. The publication in question is a poem in the Uriya language consisting of 28 stanzas, and ends with a Sanskrit sloka. The incident described in the book is borrowed from the Uriya Haribans, but the book is not an extract of certain passages from the Haribans. The incident, so far as it goes, is complete in itself. The language of the book is the author's own and differs from that of the Uriya Haribans, but the story and the sentiments are the same. The original Haribans in Sanskrit was not produced in evidence, and I have not been able to find the story in the Sanskrit Haribans. But one of the witnesses for the presecution, Narain Prasad Mahanti, Deputy Inspector of Schools, says that the story of Natu Chori will be found in Vaishnab literature, and that he has read it elsewhere. Whatever that may be, it is certainly contained in the Uriya Haribans which is on the record, and which, the evidence for the prosecution shows, is a very sacred work of the Uriya Hindus. English translations of the Natu Chori and of the portion of the Uriya Haribans dealing with the incident (together with the Uriya poem in Bengali character) were furnished to the Court and to the counsel for the Crown, on behalf of the petitioner. The translation was not objected to (except as to the meaning of the word rati with which I will deal later on) by the learned counsel for the Crown who admitted that the language in which the story is described in the Haribans is as objectionable as that of the Natu Chori.

The objectionable passages are contained in stanzas 6 to 11, where Krishna is described as touching the left breast of Radha and asking her questions about it, and also asking Radha for caresses and for rati, and in stanzas 23 to 26 where Radha is described as removing the cloth from her breast when two tops and string miraculously dropped to the ground and Krishna looked at her breast. The word rati was held by the learned Deputy Magistrate to mean “carnal intercourse.” Exception was taken to the above by counsel on behalf of the petitioner who translated it as “love,” and who contended that rati means spiritual union’ in the love stories of Radha and Krishna. The word rati in the love stories of Radha and Krishna is, no doubt, used in a spiritual sense, but in the ordinary acceptation of the word it means “carnal intercourse,” and I think it may be so understood by ordinary people. The story, however, as related in the book shows that it could not relate to human beings. In the Uriya Haribans as also in the Natu Chori, Krishna is described as a boy of five years of age. He is described in the objectionable passages themselves as Jagannath (Lord of the World), Achyuta (the unfallen), Pitabas (the yellow-robed), Deb Murari (God Murari), all being names of the divine Krishna. There can be no doubt (and the witnesses for the prosecution admit) that the dropping of the tops and string out of nothing when Radha's cloth was shaken are supernatural acts, and a boy of live years can have no carnal knowledge. These go to show that it was not a description of Radha and Krishna as human beings and must have a spiritual meaning.

The love stories and dalliances of Radha and Krishna have a deep allegorical meaning. Madhusudan Rao, a retired Inspector of Schools, and a witness for the prosecution, says: “Krishna is an incarnation of the supreme soul and Radha is the human soul, and their dalliance is an allegorical representation of the dealings of the supreme soul with the human soul, i.e, ‘God's quest of man.’ Ayan Ghose, the hushand of Radha, is a representation of the world trying to the human soul to it. Bansi (pipe) is inspiration.” But I do not think the deep allegory and the spiritual significance of the love stories of Radha and Krishna can be fully understood by persons who have not a certain degree of spiritual culture. But the Hindus generally, and the Vaishnabs in particular, do not look upon Radha and Krishna as human beings and do not judge their doings by the standard of human conductor as in ally way improper. They are worshipped as deities. Even a school boy or an ignorant Hindu, who has neither the learning nor the spiritual culture for appreciating the esoteric meaning of the lilas (mysterious deeds) of Radha and Krishna, would look upon them as divine persons, and all the incidents in their lives, including the amorous incidents, as divine, and the latter would not, therefore, raise impure thoughts in the minds of Hindus who believe in the divinity of Radha and Krishna. Hindus from their infancy see Radha and Krishna worshipped in temples, and some have the images of Radha and Krishna in their own houses, and they learn to look upon Radha and Krishna as deities from their infancy.

Eight witnesses were examined for the prosecution, of whom one is a formal witness. Of the remaining seven witnesses, one is a Christian, another a Mahomedan and the rest are Hindus. The evidence of the witnesses is generally to the effect that there are passages in the book which are obscene or offensive to purity and decency, that a perusal of the book may produce impure thoughts in the minds of readers, and that school boys ought not to read the book; but it also appears from their evidence (though I do not think any evidence is necessary on the point) that Krishna and Radha are believed by Hindus to be a god and goddess, that their doings are not considered as improper, and that those who believe in their divinity would not take immoral ideas from a story such as is described in the book. The Hon'ble Mr. M.S Dass, a Christian gentleman and Uriya by birth, and a vakil of 30 years' standing, in cross-examination, says that he knows Krishna is believed by a large sect of Hindus to be the incarnation of God, that the author of Natu Chori professes to describe one of the balya lilas of Krishna. He also says: “Those who believe Krishna to be a God and consider incidents like those described in the Natu Chori or Haribans for divine achievements, would not take immoral ideas from them.” Girish Chandra Bhattacharjee, a Bengali domiciled in Orissa, and Head-clerk of the Registration Office, says in cross-examination that he regards Krishna and Radha as a god and goddess and the story about them as mythological, and that Hindus never consider the doings of Krishna and Radha as improper. He says that he would have never refused to pass the book for registration on the ground of its being obscene, and that he calls the book obscene only because he cannot read it before his mother and other elder superiors, and has no other reason to call it obscene. Madhu Sudan Rao, a retired Inspector of Schools, says that if the book is claimed to be a religious book, he cannot deny that, that for religious people/of whose creed the love of Radha and Krishna is a part, he does not consider it objectionable. He says he has read similar thoughts in other works; that the obscene passages in the Gita Govinda, which is considered by the Vaishnabs to be a religious book, are not considered by some classes of Hindus to be depraving to morals. He says Krishna is believed by Hindus as an incarnation of Vishnu, and Radha as that of Lakshmi, and that his own idea of purity is different from that of ordinary Hindus. Narain Prasad Mahanti, B.A, Deputy Inspector of Schools, says that the Natu Chori is a religious book treating of Radha and Krishna, that the Haribans is a very sacred work, and that if the Natu Chori was in the Haribans it would be a religious work, and that there are many passages in Sanskrit or other classical works which are obscene.

Govind Rath (who was, however, declared hostile by the prosecution) says that such books are never considered to be offensive to morality. Purusattam Tarkalankar considers the Natu Chori as obscene, but does not consider the Bastrahar in the Bhagbat as obscene. But the Bastraharan is not obscene, only if it is looked at from the spiritual point of view. The Mohamedan witness, Abdul Samad's idea is that Radhika was “the illegal wife of Krishna,” and that she was “a married woman who eloped with Krishna.” Considering Krishna and Radha as man and woman, and ignoring the fact that Krishna is described as a boy of five years of age, as a divine person and as performing supernatural acts, the incident described in the Natu Chori may be called obscene, but Hindus generally, and Vaishnabs in particular, do not consider Radha and Krishna as human beings or any of their doings immoral.

There are many religious or classical works which contain objectionable passages. The Hon'ble Mr. M.S Dass says: “I have read in books more obscene passages than those in the Natu Chori. In the Bible there are records of facts of incest having been committed. This exhibit L (Bible, Genesis, Chapter XIX, paragraphs 31-38) is an invitation to a sister to have sexual intercourse with a father. This is very obscene. This passage by itself would suggest immoral thoughts to people other than Christians who are immorally inclined.”

No one would, of course, think of condemning a religious book because it contains some objectionable passages, and the reason why religious or classical works are not condemned on that ground are well understood. The Exception to section 292 of the Indian Penal Code appears not to apply to religions books. The Exception runs as follows: “This section does not extend to any representation, sculptured, 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.” But I think the reason why religious books are not included in the Exception is that the tendency of a religious publication is not to deprave or corrupt the morals of persons, and, therefore, a religious work is not obscene within the meaning of section 292. But if the objectionable passages contained in a religious book are extracted and printed separately, and such passages deal with matters which are to be judged by the standard of human conduct, for instance, where they relate to immoral acts of human beings, and the tendency of such publication is to deprave and corrupt those whose minds are open to immoral influences, such publication may not be justified on the ground that the passages formed part of a religious book. Where, however, a story, which looks objectionable, is taken from a religious book and printed separately, but it relates to beings whose conduct is not to be judged by the standard of human conduct, it cannot be condemned as obscene, because being looked upon as sacred, they would not raise immoral thoughts in people who believe in the divinity of the beings whose acts and conduct are described in such a story. The Bastraharan incident in the Srimat Bhagbat, the most sacred book of the Vaishnabs, when not looked at from the spiritual point of view, may be considered objectionable by people who do not believe in the divinity of Krishna or do not understand the spiritual significance of it. The same observations would apply to passages in the Gita Govinda and other works of Vaishnab literature. But they cannot be called obscene because they are descriptive of the doings of persons considered divine and would not raise immoral thoughts.

As I have already pointed out, the Natu Chori is not an extract of certain isolated passages from the Haribans. It is a complete story in itself so far as it goes. It will be obvious to a Hindu that the book describes one of the balya lilas of the god Krishna (mysterious deeds of the infant Krishna). It would not raise immoral thoughts in them because they believe in their divinity and consider their doings sacred.

The book is in the Uriya language. The vast majority of the Uriyas are Hindus, who believe in the divinity of Krishna and Radha. It appears from Hunter's Statistical Account of Bengal, Vols. XVIII and XIX, that 95 or 96 per cent, of the district population of Cuttack, Balasore and Puri are Hindus, and vast majority of them are Vishnu worshippers.

But then it was contended that even if the Natu Chori may be considered as a religious book and may not be considered as immoral or obscene by the Hindus, there are non-Hindus, Christians for example, among Uriyas who might read the book and take immoral ideas from it. But the book is a religious one as some of the witnesses for the prosecution say. It is apparently intended for Hindus, and describes incidents which are not considered improper by the Hindus, who form the vast majority of the Uriya population. Under these circumstances, I do not think the book can be condemned as obscene merely because a small section of the Uriyas, who do not believe in the divinity of Radha and Krishna, might take immoral ideas from it. Besides, it will be obvious even to a non-Hindu on a perusal of the book that it purports to deal with the amours of the infant Krishna who is described as a divine person and as performing some supernatural acts as shown by the miraculous dropping of the tops and string out of nothing.

From the evidence it appears that the Natu Chori was formerly in palm-leaf manuscript. Madhu Sudan Rao, a retired Inspector of Schools, says he understands that the book was about 100 years in palm-leaf. In cross-examination he stated he heard from Pandit Grovind Rath that the book was in palm-leaf. Witness Govind Rath says that the book is an old work, like those of Upendra Bhanja (who is stated to have written three hundred years ago), and was formerly in palm-leaf, and the District Registrar, Abdul Samad, says that it is an old work published very often. This witness says that he has to register every book published in Cuttack before it is notified in the Calcutta Gazette, that he does not register a book if it is obscene, and he has to see if it is obscene before registering a book. He admits that he might have registered this book 15 or 20 times, but says that he does not read a book before registering it, that his clerk does so, and that he read the book in question for the first time when it was sent to him by the District Magistrate. The witness, Narain Prosad Mahanti, Deputy Inspector of Schools, says that he read an edition of the book 10 or 12 years ago. The book is described in the Bengal Library Catalogue of Books as a mythological poem. It also appears from the Calcutta Gazette that several editions of the Natu Chori printed in other presses are described as a mythological poem.

Though the mere fact that no notice was taken of other editions of the book or that the book is described in the Calcutta Gazette as a mythological poem would not justify its publication if it is really obscene, the fact remains that it was recognised as a mythological poem, and was never objected to before the present prosecution.

The question raised in this case does not appear to have been raised in any case before. Having regard, however, to the facts appearing on the record, viz.—

(i) that the Uriya Haribans is a very sacred work of the Uriyas,

(ii) that the story as related in the Natu Chori is the same as that in the Uriya Haribans, and the language used in the former is not more objectionable than that used in the latter,

(iii) that the Natu Chori is an old work published very often,

(iv) that it is a religious work,

(v) that the Hindus believe in the divinity of Radha and Krishna, and do not consider their doings as improper, and that the incident described in the book would not suggest immoral thoughts in those who believe in their divinity,

(vi) that Vaishnabism is the prevailing religion of the Uriyas, and

(vii) that in the Natu Chori Krishna is described as a boy of five years of age, as a divine person and as performing supernatural acts,

I do not think it can be said that the tendency of the book is to deprave and corrupt those whose minds are open to immoral influences, or that the book is one of which it was certain that it would suggest thoughts of a most impure character, and I am unable to hold that it comes within the purview of section 292 of the Indian Penal Code. The conviction of the petitioner and the sentence passed upon him are accordingly set aside. The fine, if paid, will be refunded.

E.H.M

Rule absolute.