IN RE : M. KRISHNASWAMI AND ANOTHER Vs. STATE

JUDGEMENT

(1.) M .O.1, a commercial advertisement with a picture showing a man and a woman, very close to each other, depicting the outlines of the breast and buttocks was published on the 3rd of May 1970 in the Sunday Standard, a weekly at Madras, of which Petitioner 1 is the printer and publisher. This advertisement, which was on behalf of Messrs. Cosmetic Monarch Products of Bombay, was given by Petitioner No. 2 who is the Manager of an Advertising concern in that place. The State filed a Charge Sheet against these two Petitioners and the Editor, the second accused (since acquitted) for an offence under Section 292A(a) of the I.P.C. P.W. 1, a retired Assistant from the Central Public Works Department, deposed that the picture, M.O. 1 was obscene and added that he snatched it from the hands of his son when he was looking at it. P.W.2 also gave a similar evidence. The learned Magistrate acquitted the second accused, the Editor, but convicted these two Petitioners with a finding that the picture in question is grossly indecent within the ambit of Section 292 -A(a) of the I.P.C. and sentenced them each to pay a fine of Rs. 200/ -. The correctness of this conviction is now canvassed in this revision.

(2.) UNDER Section 292(A)(a), whoever prints or causes to be printed in any newspaper, periodical or circular, or exhibits or causes to be exhibited, to public view or distributes or causes to be distributed or in any manner puts into circulation any picture or any printed or written document which is grossly indecent, or is scurrilous or intended for blackmail, etc., shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Explanation II of this section is as below: "In deciding whether any person has committed an offence under this Section, the "Court shall have regard, Inter alia to the following considerations:

(3.) AS pointed out by the Supreme Court in Chandrakant v. State of Maharashtra, A.I.R. (1970) S.C. 1396 : 1970 L.W. Cri. 101 (S.C.) the concept of obscenity would differ from country to country depending on the standard or morals of contemporary society. The standard 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. In the field of art and cinema also the adolescent is shown situations which even a quarter of century ago would be considered derogatory to public morality, but having regard to changed conditions they are more taken for granted without in any way tending to debase or debauch the mind. What the Court has to see is whether a class, not an isolated case, into whose hands, the book, article or story falls, suffer in their moral outlook become depraved by reading it or might have impure and lecherous thoughts are used in their minds. The question does not altogether depend on oral evidence, because it is the duty of the Court to ascertain whether it offends the provisions of the Section 292, of the I.P.C. Even so, as the question of obscenity may have to be judged in the light of the 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 such persons who come into contract with the picture or publication.