JUDGMENT & ORDER (ORAL)
Heard Mr. A. Banerjee, learned counsel appearing for the petitioner as well as Mr. R.C Debnath, learned Addl. Public Prosecutor appearing for the state.
2. This petition filed under Section 397 read with Section 401 of the Cr.P.C by the convict is directed against the judgment and order dated 09.02.2007 delivered by the Sessions Judge, South Tripura, Udaipur in Criminal Appeal No. 50(4)/2006, upholding the judgment and order of conviction and sentence dated 16.09.2006 delivered in Case No. G.R 64/2006 by the Sub-Divisional Judicial Magistrate, Amarpur, South Tripura, convicting the petitioner under Section 292(2)(a) of the IPC and sentencing him to suffer SI for six months and to pay fine of Rs. 2,000/-, in default of payment of fine, to suffer further SI for thirty days.
3. Briefly stated, the prosecution case is that, from the shop of the petitioner, 23 numbers of obscene CDs were allegedly seized by the police officer in presence of the witnesses and a suo moto complaint was filed by the Sub-Divisional Police Officer, namely Dr. Chinmoy Roy (PW.1) to the Nutanbazar Police Station on 17.08.2006 in discharge of his official duties and accordingly Nutanbazar P.S Case No. 448/2006 was registered under Section 292(2)(a) of the IPC.
4. On completion of investigation, the charge-sheet was filed and cognizance of the offence under Section 292 of the IPC was taken by the Sub-Divisional Judicial Magistrate. When the statement of accusation under Section 292(2)(a) of the IPC was read over, the accused person pleaded not guilty and claimed to be tried.
5. To substantiate the accusation, the prosecution examined as many as seven witnesses including the Investigating Officer, namely Dulal Chandra Dutta (PW.7), the informant, Dr. Chinmoy Roy (PW.1) and two police personnel who accompanied him at the time of the seizure, namely Rabindra Debbarma (PW.2) and Priyalal Roy (PW.3). The seizure witnesses, namely Kapil Sahani (PW.4), Dhirendra Sutradhar (PW.5), Kanai Lal Banik (PW.6) are the attesting witnesses to the personal search memorandum (Exbts. 4 and 5) and the seizure memo (Exbt.6). Kanai Lal Banik (PW.6) is a photographer by profession, who took the photographs of the shop, wherefrom 23 numbers of CDs (Exbt. M.O.I to Exbt. M.O XXIII) were seized.
6. On appreciation of the testimonies and records, the Sub-Divisional Judicial Magistrate, Amarpur, South Tripura has returned the finding of conviction and sentenced as stated. For returning the finding of conviction, the SDJM, Amarpur, South Tripura, has made an extensive exercise to define the word “obscene” and held that, that word connotes unchaste and lustful ideas, impure, indecent, lewd and detrimental to public morals and calculated to produce the pernicious effect in depraving and debauching the minds of the persons into whose hands it may come. Para 9 of the judgment of the trial court is reproduced hereunder for reference:
“With the above observations dealing with the ordinary and literal meaning of the word ‘obscenity’ within the meaning of section 292 of the Indian Penal Code, we may not consider the alleged obscenity of the matters charged in its true perspective. ‘The question regarding ‘obscenity’ is one of the fact and depends upon various circumstances, and no hard and fast rule can be laid down. It does not depend altogether on oral evidence but must be judged by the Court. It is the duty of the Court to consider the obscene matter by taking an overall view of the entire work and to determine whether the obscene 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 overlook the influence of the book on the social morality of our contemporary society’, AIR 1970 SC 1390.”
7. Thereafter, on appreciating the evidence and the materials on record, it has been held that the petitioner is liable to be convicted for the offence as described in Section 292(2)(a) of the IPC. It has been observed that at the time of seizure those CDs were never played for want of a CD player in the shop of the petitioner. There is no dispute that none of the witnesses including PW.6 have stated that after screening of the CDs they found the CDs to be obscene or they have witnessed at any point of time that the petitioner was engaged in selling and screening of those obscene CDs.
8. PW.7, Dulal Chandra Datta, the Investigating Officer, in his testimony has stated that out of those 23 CDs, 13 CDs were defunct and the remaining 10 CDs were played in the court, but, he, except that those were the obscene CDs for objectionable postures of male and female bodies, does not say anything more in his testimony. However, the SDJM, Amarpur has stated that “we may safely conclude that 23 no. of CDs, marked Ext. MO. I, II, IV, VI, VII, VIII, X, XIII, XIV, XV, XVI, XIX, XXI, XXII & XXIII were obscene in character, were in the exclusive possession of the accused”. Thereafter, on appreciation of the testimonies of PWs. 4, 5 and 6, the SDJM, Amarpur has arrived at a finding that the petitioner had circulated those obscene CDs.
9. Mr. A. Banerjee, learned counsel appearing for the petitioner has succinctly submitted that none of PWs has anywhere stated that the petitioner was running the business of circulating the obscene CDs, rather they have stated that he has the business of CD cassettes. There is no dispute that none of the witnesses has stated that he was ever pushed any obscene CD for circulation or he has knowledge that the circulation of the obscene CDs was being made at the behest of the petitioner. Even PWs 4 and 5, in their cross-examination, did not state anything against the petitioner.
10. PW.7, the Investigating Officer has stated that he had received information from the secret source that the petitioner had been illegally possessing the blue films in the CDs in his shop and accordingly he had caused search and seizure. He has narrated how he had conducted the investigation. In the cross-examination, he has admitted that he did not find the petitioner in the process of either selling or exhibiting obscene CDs either in his shop or outside his shop. Even before the seizure he did not screen those CDs to see whether those are obscene or not.
11. On scrutiny, it is found that after seizure, the CDs were found not sealed. The Investigating Officer was re-examined by the prosecution and during the re-examination, he has stated that Exbt. M.O I, II, IV, VI, VII, VIII, X, XIII, XIV, XV, XVI, XIX, XXI, XXII and XXIII were displayed in the open Court and found obscene. Even 8 nos. of CDs were found not functioning when displayed in the open Court. PW.7 did not say how he found those CDs were obscene. There is total absence of any narration or material observation regarding the contents of the CDs in his testimonies. Despite that, the said finding of conviction was returned by the trial court. For appreciation further, the provisions of Section 292(2)(a) of the IPC is reproduced hereunder:
“(2) Whoever
(a) Sells, lets to hire, distributes, publicly 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 figure or any other obscene object whatsoever”
12. A bare reading of the said provision would reveal that unless the elements like sale, letting to hire, distribution, public exhibition or putting those obscene material for circulation or making or producing or keeping in his possession any obscene books, pamphlet, paper, drawing, painting or representation or figure or any other obscene object are proved, provisions of Section 292 of the IPC cannot be attracted.
13. Mr. R.C Debnath, learned Addl. Public Prosecutor, while refuting the submission of Mr. Banerjee, learned counsel for the appellant, has submitted that the possession of obscene CDs by the petitioner has been well proved by the prosecution. As such, there is no infirmity in the finding of the trial court.
14. While appreciating the evidence as recorded, this Court is satisfied that possession of the CDs has been well proved by the prosecution, but the fundamental question that remains unanswered is how the trial court had come to that conclusion that those CDs were obscene. It has been found that by way of playing the CDs in the open court, the trial court has assessed the contents of those CDs and arrived at the finding that the contents in the CDs are “obscene”. But, nowhere in the judgment of the trial court or in the judgment of the appellate court there is any description of the contents, for which they came to the conclusion that those contents were obscene within the meaning of Section 292 of the Indian Penal Code.
15. The Supreme Court in the celebrated decision of Samaresh Bose v. Amal Mitra, reported in AIR 1986 SC 967, has made distinction between the word “vulgarity” and “obscenity”. For purpose of reference, the relevant paragraphs of Samaresh Bose (supra) is extracted hereunder:
“23. In the case of Ranjit D. Udeshi v. State Of Maharashtra .: (1965) 1 SCR 65: (AIR 1965 SC 881), this Court had to decide the question of constitutional validity of Section 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 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 Section 292 I.P.C this Court observed at pp. 73-74 (of SCR): (at P. 887 of AIR):“We shall now consider what is meant by the word ‘obscene’ in Section 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 obscenity was established in England three hundred years ago when Sir Charles Sedley exposed 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 Queen v. Read: (1708) 11 Mod 142 Case No. 205 was decided. In 1717 in the case against one Curl it was ruled for the first time that it was a common Law Offence (1727) 2 Stra. 789 (KB). 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 Vict. C. 83) in Hicklin's case: (1868) 3 QB 360. 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, possession for sale, distribution etc. a misdemeanour. The section may thus be regarded as substantially in pari materia with Section 292 Indian Penal Code, in spite of some difference in language. In Hicklin's case the Queen's Bench was called upon to consider a pamphlet, the nature of which can be gathered from the title and the colophon which read: The Confession Unmasked, showing the depravity of Romish Priesthood, the iniquity of the confessional and the 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 ‘grossly’ obscene; as relating to impure and filthy acts words or ideas’. Cockburn, C.J laid down the test of obscenity in these words:
‘… I think 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 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 libidious character’.
This test has been uniformly applied in India.
This Court further observed at p. 75 (of SCR): (at P. 888 of AIR):
“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 considered immodest. Today all these and authors from Aristophanes to Zola are widely read and in most of them one hardly notices obscenity. If our attitude to are v. obscenity had not undergone a radical change, books like Caldwell'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 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 novels situations which ‘were strongly disapproved of under the conventions of the age’, but they were extremely mild compared with books today. The world is now able to tolerate much more than formerly, having become indurated by literature of different sorts. The attitude is not yet settled. Curiously, varying results are noticeable in respect 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 Riddle of Obscenity: (1964) 112 Penn L Rev 834).
But even if we agree thus far, the question remains 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 question to decide in each case and it does not compel an adverse decision in all cases.”
This Court held at Pp. 76-77 (of SCR): (at Pp. 888-89 of AIR):
“The Court must, therefore, apply itself to consider each work at a time. This should not, of course, be done in the 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 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 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 and regional languages 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 obscurant will deny the need for such caution. This consideration marches with all law and precedent on this 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 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 expression of freedom. A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give away.
We may now refer to Roth's case: (1957) 354 US 476 to which a reference has been made. Mr. Justice Brennan, who delivered the majority opinion in that case observed that if obscenity is to be judged of by the effect of an isolated passage or two upon particularly susceptible persons, it might well encompass material legitimately treating with sex and might become - unduly restrictive and so the offending book must be considered in its entirety. Chief Justice Warren on the other hand made ‘substantial’ tendency to corrupt by arousing lustful desires’ as the test. Mr. Justice, Harlan regarded as the test that must ‘tend to sexually impure thoughts’. In our opinion, the test to adopt in our country (regard being had to our 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 offensive to modesty and decency but the extent of such appeal in a particular book etc. are matters for consideration in each individual case.”
16. The apex court has held further in Samaresh Bose (supra) that:
“……. The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society. What 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 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 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 freedom except that it should not fall within the definition of ‘obscene’ having regard to the standards of contemporary society in India are also fast changing. The adults and adolescents have available to them, a large number of classics, novels, stories and pieces of literature which have a content of sex, love and romance. As observed in Udeshi's case (AIR 1965 SC 881) 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 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 or become depraved by reading it or might have impure and lecherous thought aroused in their minds. The charge of obscenity must, therefore, be judged from this aspect.”
17. It has been culled out by the apex court in Samaresh Bose (supra) as under:
“….. 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 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 question can be said to be obscene within the meaning of Section 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 preference which may remain hidden in the sub-conscious mind and may unconsciously affect a proper 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 assessment.”
18. Definitely, the court can assess the materials whether those were obscene or not. But, on scrutiny of the judgment, the parameters used are not conspicuous and, as such, assessments are absolutely unacceptable in view of Samaresh Bose (supra). The concept of “nudity”, “vulgarity” and “obscenity” are so relative that usually a trial Magistrate should not wholly depend on his assessment as the well-known practice propounds that “justice has not only to be done but it has to be shown to have been done”. Usually, as indicated by the apex court in Samaresh Bose (supra) that opinion of some well-known persons and the elderly men of words have to be engaged for seeing whether the materials and contents of the particular material object, falls within the embrace of obscenity or not. Apart that, what has been observed by this court on reading the entire judgment is that neither the trial court nor the appellate court has given any reference to the materials they have considered obscene.
19. In view of the above, this Court is constrained to hold that there is no evidentiary material as such to hold that the CDs were containing obscene materials, for possession of which the petitioner can be convicted under Section 292(2)(a) of the IPC. He should be entitled to benefit of doubt. Accordingly, the impugned judgment and order are interfered with and set aside. As consequence thereof, the petitioner is acquitted from the substance of accusation under Section 292(2)(a) of the IPC and his sureties are discharged from their obligations.
20. In the result, this petition stands allowed.
Send down the LCRs forthwith.