LexRANJIT D. UDESHI versus STATE OF MAHARASHTRA
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' • ..... A RANJIT D. UDESHI v. STATE OF MAHARASlffRA A1fgust 19, 1964 65 B (P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, c D E F G M. HIDAYATULLAH, J. C. SHAH AND N. RAJAGOPALA AYYANGAR, JJ.) Constitution of India, 1950, Arts. J.9(1)(a) and 19(2)-lndian Penal Code, 1860 (Act 45 of 1860), s. 292-/f ulira vires-"Obscene", mean- ing of-Accused-Knowledge of obscenity-Relevance. The appellant, a book-seller, sold a copy of the unexpurgated edi- tion of "Lady Chatterley's Lover". He was convicted under s. 292, Indian Penal Code. Irr his appeal to the Supreme Court he contended that : ( i) the section was void because it violated the freedom of speech and expression guaranteed by Art. 19(1) (a) of the Constitution of India, (ii) even if the section was valid, the book was not obscene and (jii) it must be shown by the prosecution that he sold the book with the inten- tion to corrupt the purchaser, that js to say, that he knew that the book was obscene. HELD : ( i) the section embodies a reasonable restriction upon the freedom of speech and expression guaranteed by An. 19 and does not fall outside the limits of restriction permitted by cl. (2) of the Article. The section seeks no more than the promotion of public decency and morality which are the words of that clause. (690; 70E-F; 74B]. (ii) The book must be declared obscene within the meaning of s. 292, Indian Penal Code. [SIC]. The word "obscene" in the section is not limited to writings, pictures etc. intended to arouse sexu~J desire. At the same time the mere treat- ing with sex and nudity in art -and literature is not per se evidence of obscenity. The test given by Cockburn C.J., in Queen v. Hicklin, (1868) L.R. 3 Q.B. 360, to the effect Miat the tendency of the matter charged as obscene must be to deprave and corrupt those, whose minds are open to such immoral influences and into whose hands a publication of the sort may fall, so far. followed in India. is the right test. · The test does noi offend Art. 19( 1) (a) of the Constitution. [70B-C; 73H; 74B-C, F; 75FJ. In judging a work, stress should not be laid upon a word here and a word there, or a passage here and a passage there. Though the work as a whole must be considered, 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. In this connection the interests of contemporary society and particularly the influence of the impugned book on it must not be ·overlooked. Where obscenity and art are mixed, art must so prepon- derate as to throw the obscenity into a shado\V or the obscenity so trivial and insignificant that it can have no effect and may be overlooked. It is neces- sary ·that a balance should be maintained between "freedom of speech and expression" and "public decency or morality"; but when the latter is subs- tantially transgressed the former must give way. Ii:t other cases obscenity may be overlooked if it has a preponderating social purpose or profit. [75G~ H; 76A-B, E-G; 77A-C]. 66 SUPREME COURT .RErOi-. TS [ 1965) I S.C.R. In judging the obscenity of one book the character of o•her books A is a collateral issue which need not be explored. [76C-DJ. (iii) The section does not make the book-seller'• knowledge of ol,..- ~ an ingredient of the offence and the prosecution need not estab- lish 1L Absence of knowledge may be taken in mitijlation but does not take the case out of the section. But the prosecuuon must prove die ordinary mens rta in the sec<JOd part of th~ guilty act and it must he pl'CMld that be bad actually sold or kept for aale the offending article. Such 1Mns rta may be established by circwrutantial evidence. [71C-D. F-HJ. C11.1MINAL APPELLATE JuRISll1CT10N : Criminal Appeal No. 178 of 1962. B Appeal by special leave from the judgment and order date<l February 6, 1962, of the Bombay H,igh Court in Criminal Revision c Application No. 1149 of 1961. R. K. Garg, S. C. Agarwal, D. P. Singh, M. K. Ranwmurthi and B. A. Desai, for the appellant. C. K. Daphtary, Attorney-General, 0. P. Rana and R. fl. Dhebar, for the respondent. The Judgment of the Court was delivered by D llid!lyatuJIM J, The appellant is one of four partners of a firm which owns a book-stall in Bombay. He was prose- cuted along with the other partners under s. 292, Indian Penal C
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