KAILASH CHANDRA Vs. EMPEROR

JUDGEMENT

(1.) This Rule has been issued upon the Chief Presidency Magistrate of Calcutta to show cause why the convictions of the petitioners should not be set aside or why such other or further order should not be made as to this Court may seem fit. The petitioners have been convicted of offences under Section 292 read with Section 120-B, I. P. C, on a charge of criminal conspiracy to publish, sell and distribute an obscene book (viz)., "Ramsdar Atmakatha" in two editions referred to as editions 3 and 4. The first ground on which the Rule has been issued is that in view of the aims and objects of the author expressed in the preface and other chapters of the book the Magistrate ought to have held that the book is not obscene. The second ground is that on a valid and legal construction of the book in question the learned Magistrate ought to have held that the book does not come within the mischief of Section 292, I. P. C, and the third ground is that the sentences are too severe.

(2.) The learned advocate for the petitioners started by addressing as on the ground that the charge is bad inasmuch as the particular passages in the book characterized as obscene have not been indicated in the charge. I do not think however that we ought to interfere with the order of the learned Presidency Magistrate on this ground inasmuch as, though it was a ground of the petition for revision, the learned Judges who issued the Rule did not think it necessary to examine the record in order to satisfy themselves as to the regularity of the proceedings in this particular, and the learned Magistrate had no opportunity of commenting on this objection to the proceedings. Moreover it does not appear that this objection was raised at the outset of the trial. It was raised during the argument. But in any case I should not be inclined to interfere in revision on this ground inasmuch as I do not think that the petitioners were really prejudiced in their defence by this omission if, in the circumstances of the case, it can be described as an omission for the prosecution have maintained throughout that it is the book as a whole that is obscene and that there is no defect in the framing of the charge. In this connexion reference has been made to the English Law as to indictments in such cases. Under the English Law: vide Charles Bradlaugh and Annie Besant V/s. Beg [1878] 3 Q.B.D. 607 all particulars had to be set out in the charge. Then under the Libel Law Amendment Act of 1888, Section 7, all that was necessary was that the book should be referred to in the charge and deposited with particulars showing in what parts of the book the obscene passages occurred. It is complained that not even this was done in the present case. No doubt it would have been more in accordance with law if some attempt had been made in the charge to indicate in what respect exactly the book was obscene. But in the circumstances of the present case I think that this was sufficiently obvious and that the petitioners have not been prejudiced. In the book a fictitious person Rameshada describes his sexual adventures. The prosecution case is that this series of descriptions of sexual episodes loosely grouped together is obscene. It is urged that in the circumstances the defence witnesses could only say that the book was not obscene and that the prosecution witnesses could not be examined as to particular passages. The book however is short and there was no difficulty in the defence asking the prosecution witnesses what passages they found obscene or in what respect they found the book obscene and I fail to see how there was any material prejudice to the defence. I note that in the case of Empress of India V/s. Indarman [1881] 3 All. 837 the same objection was raised but not given effect to though there was only one obscene passage in the book. However the report does not give the particular circumstances in that case nor the grounds on which this objection was overruled. For the prosecution in this connexion the case of Kherode Chandra Boy V/s. Emperor [1912] 89 Cal. 877 has been referred to in which the obscene passages in the book were not indicated in the charge, but it must be allowed that in that case this point was not raised and the subject-matter was a poem consisting of only 28 stanzas, so that that case is not . sufficient authority for holding that there is no need to specify the particular obscene passages in the charge. However I think that each case must depend upon its particular circumstances and holding as I do, that in this case the accused have not been prejudiced there is no reason for interference with the decision in revision more especially as the Rule was not granted on this ground.

(3.) There is no substance in the first ground on which the Rule was granted, namely, that in view of the aims and objects of the author expressed in the preface and other parts of the book the Magistrate ought to have held that the book is not obscene, as the motives that the petitioners had in publishing the book do not prevent it from being obscene if the descriptions are in themselves obscene. The motive may be taken into account as regards the question of sentence; but whether it is obscene or not depends on the material itself and not upon the reasons for its publication. Where a man publishes a work manifestly obscene he must be taken to have intended the inevitable consequences. In this connexion the case of Emperor v. Hari Singh [1905] 28 All. 100 may be referred to.