SAJJAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This petition is directed against the order of the learned. Magistrate by which the substance of accusation under section 341 and 427 I.P.C. has been read over to the accused petitioners. From the perused of the record, it appears that the incident relates to year 1977 and more than 12 years have already passed. It has also been brought to my notice that civil litigation about the property in question is *Sic

(2.) Looking to the nature of the acquisition, the fact that the matter is of the year 1977 and more than 12 years have already passed since then and civil litigation is pending between the parties about the property in question, I am of the view that continuation of Criminal Proceedings against the petitioners in such a petty matter will amount an abuse of the process of the court and it is in the interest of justice to quash these proceedings.

(3.) Consequently, I allow this petition and quash the order dt. 21.11.1988 passed by the learned AddI. Sessions Judge No. I, Ajmer as well as the order dt. 17. 12.1984 passed by Judicial Magistrate No.2, Ajmer in Criminal Case No. 176/80. A also quash the entire proceedings against this petitions in the aforesaid Criminal case No. 176/80 pending in the court of Judicial Magistrate No.2 Ajmer. . THE LAW RELATING TO OBSCENITY IN INDIA Srikanta Mishra* In the primitive stage of human history law is embryonic. It is also indistinguishable from religion and ethics. No clear-cut line divides one from the other. But gradually with the role of time and the progress in the human society law developed. Turning to the topic stated above that what is obscene to a community, conceding for a while that such a common standard is ascertainble, would ultimately be determined by the attitude of the society, in a particular period, to certain things which are intimate in the life of human being.Again in brief, the law of obscenity must serve a two-fold purpose. It must interfere the least with the freedom of expression, creation and investigation but at the same time it must efficiently suppress the commercial activities of those who deal in Tdirt for dirts sake. The Oxford English Dictionary says of obscenity as being, offensive to modesty or decency, expressing or suggesting unchaste or lustful ideas; impure, indecent, lewd. In Websters International Dictionary the meaning is; offensive to chasity or modesty; expressing to the mind something which delicacy, purity and decency forbid to be exposed, impure as obscene language, obscene pictures The News Oxford Encyclopaedia Dictionary defines the word obscene as something which is repulsive and indecent, and obscene publication as those publications which tend to deprave and corrupt. And the Encyclopaedia Britannica Vo. VII defmes obscenity in general as that which offends the public sense of decency. Furthemore the problem of defining what is obscene is not easy to solve. Social changes, changes in the behaviors and outlook of the people from age to age bring in a variation in the idea of obscenity. If one compares the dress worn by women from time to time in different parts of the world and even in the same part at different periods of history, one will be astounded as to the variable idea of obscenity prevalent the world over. The changes in the ideas of obscenity may be in terms of religion, in terms of time and in terms of persons. It may even be that with the same person the samething may not be onscene at all stage of his life. In a casel Mr. Justice R.P. Mookerjee says that the idea as to what is to be deemed to be obscene has varied from age to age, from religion to religion, dependent upon particular social conditions. There cannot be an immutable standard of moral values. Before the passing of any Act, in India so far as the term obscenity is concerned the test which has been accepted and approved of in a series of cases from the earliest down to date is that laid down by an Enblish Case2 and the test is this. The test of obscenity is this, whether the tendency of the matter changes as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose handsl a publication of this sort may fall. The same view is also corroborated in one Indian Case . In India, the statutory definition of obscenity is contained in section 292 of the LP.C. A writing or representation is considered obscene if it is lascivious or appeals to the prurient interest or if its effect is such that it tends to deprave or corrupt the persons who are likely to read or see it. The predominant characteristic of the definition is its, vagueness. For on one has yet been able to define what it is that has a tendency to deprave and corrupt The Law relating to obscenity in India, before the enactment of Indecent Representation of Women (Prohibition) Act, 1986 was confined only within the I.P.C., 1860. Sections 292 to 294 of the LP.C. deal with the law relating to obscenity. Section 292 deals with the sale of obscene books, section 293 deals with the sale of obscene object to yough persons and section 294 deals with obscene acts and songs. All these sections prescribe punishment of various descriptions. In spite of these provisions, it was observed that there was a growing body of indecent representation of women or references to women in publications, particularly advertisements, which have the effect of denigrating women and are derogatory to woman. Therefore, it was felt necessary to have a separate legislation to effectively prohibit the indecent representation of women through ad- I vertisements, books, pamphlets etc. In August 1986, Margaret Alva introduced a Bill in the Rajya Sabha known as the Indecent Representation of Women (Protection) Bill. It seeks to prevent the depiction of the figure of a woman in a manner which is derogatory or denigrating to women, or which is likely to corrupt public morality. Presumably, this bill was intended to ensure that women are not used as sexual objects for commercial gain, for example, to sell cigarettes and alcohol. Though the object is laudable, this bill was likely to spark off a major controversy among civil, libertarians over the draconian powers conferred on the police to prevent indecent representationsT in advertisements, books, paintings or films. According to Indira Jaising 4 the definition in the Act confuses the two related but separate concepts of indecency and T1onscenityT1, both of which are forms of censorship over conduct which is considered socially undesirable. Laws prohibiting obscenity punish conduct which is considered immoral and corrupting, whereas laws which seek to prevent indecent representation seek to prevent public nuisance, and an affront to civil sense of aesthetic propriety. The distinction is vital. While obscenity laws seek to protect people against themselves, the law relating to indecent representation protects the liberty of a person to live free from interference of public displays of what is offensive and indecent to them. Legal controls of indecent representation are more likely to gain popular acceptance than controls of what is considered onscene. This is because the concept of onscenity is essentially a moral one and incapable of precise definition. Section 3 of the Indecent Representation of Women (prohibition) Act 1986 states: TNo person shall publish or cause to be published or arrange or take part in the publication or exhibition of, any advertisement which contains indecent representation of women in any form, Further in the proviso (a) (i) to section 4 of the Act and Section 292 of I.P.C. the expression other objects of general concern can be given very wide and comprehensive interpretation. Any kind of indecent representation of women through slides, films and photographs can be protected within the four quarters of legal justification by merely twisting the purposes of such representation. The term other object of general concern clearly excludes Education because learning has been specially mentioned. In the opinion of the author if the purpose of the Act is to curb and control the indecent representation, then the term other object of general concernT should be deleted from the exception to section 4 of the Act. Because this expression gives a very wide scope for escape through interpretational techniques, from the penalties imposed by this Act. As far as the interest of science, Literature, art and learning are concerned, they can be clearly defined. Any other type of vulgar display of female body, for a purpose not covered under the above mentioned specific categories, and which intentionally or unintentionally tends to deprive and corrupt minds open to such immoral influences should be prohibited. The Supreme Court has taken a very strict attitude towards display of obscenity through pictorial presentation. In an important cases their Lordship P.K. Goswami and R.S. Sarkaria (JJ) have observed that these offences of corrupting the internal fabric of the DJ.ind have got to be treated on the same footing as the case of food adulterations and we are not prepared to show any leniency, At present the trend in the indecent representation of women has appeared through the voluptuous display of women in the advertisement of films. The cinema advertisements influence the minds of young generation, who flock to see these films attracted by such lewd advertisements. This has become one of the major source of distraction exercising corruptible influence on immature and impressionistic minds of young generation. In a recent case6 decided by the Supreme Court indicates that a liberalisation of attitudes has occurred. Here a novel written by a well known writer which was intended to expose various evils and ills pervading Society cannot be said to be obscene only because slang and unconventional words have been used, in which there is an emphasis on sex and description of the female body, The court explained that portions of the book may appear to be vulgar to persons of refined taste who may feel shocked and disgusted, but that was not the test of obscenity. The court distinguished between vulgar and the obscene and said that what is vulgar does not necessarily corrupt the morals but obscenity does. In the above case their Lordships R.S. Pathk and AN. Sen (JJ) have observed that in their 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 has any literary or artistic value. The judge should thereafter place himself in the position of a reader of every age group in which hands the books 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. Thus a judge should thereafter apply his judicial mind disppasionately to decide whether the book in question can be said to be obscene within the meaning of section 292 of the I.P,C. by an objective assessment of the book as a whole and also of the passages complained of as obscene separately, To conclude this paper for anything is obscene if it is Jascivious (i.e. lustful, desire for sexual indulgence) or if it appeals to the prurient interest (giving to or arising from indulgence in lewd (lustful thought). This concept of obscenity is a nineteenth century christian concept according to which anything to do with sex is dirty and obscene. To treat a natural instinct, such as sex, as obscene is obviously outdated. The fundamental basis of obscenity is, therefore, unsustainable. Today, therefore, the attention has shifted to treating those acts as obscene which depict sex with crime or violence or depict women in humiliating circumstances. Lastly the mere legislation to curb and control indecent representation shall not be enough. This legislative effort has to be coupled with wide spread of social awareness against this menace. Again various social action groups and womenTs organisalions have to playa very active and sincere role in this direction. Only then, the new legislalive efforts of the Government shall bear fruits. REFERENCES 1. Srikanta Haldarv. The State (1952) Cr.L.J 575 at p. 576 (1952) AIR Calcutta. 214. 2. Cockburn C.J. in Reg v. Hicklin 1868 L.R. 3 Q.B. 360, at p. 371. 3. The State v. Thakur Prasad, AIR 1959 All. 59.;1959 Cr.L.J. 9.