Petition for Quashing prosecution based on Publication of Obscene Matter Dismissed

Petition for Quashing prosecution based on Publication of Obscene Matter Dismissed
KERALA HIGH COURT
Before :- K. Sreedharan, J.
Crl. M.C. No. 1148 of 1988. D/d. 20.7.1989.


P.K. Somanath - Petitioner
Versus
State of Kerala and others - Respondents

For the Petitioner :- M.N. Sukumaran Nayar, Advocate.
For the Respondents :- Advocate General and Pulikool Abubacker, V.P. Seemanthini, Advocate.

A. Criminal Procedure Code, 1973, Section 482 - Indian Penal Code, 1860, Section 292A - Indecent Representation of Women Prohibition Act , 1986, Sections 3, 4, 6 - Inherent Powers - Quashing prosecution based on publication of obscene matter - High Court is competent to examine the publication for deciding whether it is obscene - Proceedings can be quashed if obscenity is not established - Some portion of magazine found obscene - Prosecution could not be quashed.
[Para 4]
B. Indian Penal Code, 1860, Section 292A - Indecent Representation of Women Prohibition Act , 1986, Sections 3, 4, 6 - Obscenity - Obscenity and pornography - Both offend public order.
[Para 8]
C. Indecent Representation of Women Prohibition Act , 1986, Sections 5, 8(2) - Criminal Procedure Code, 1973, Section 95 - Obscene publication - Search and Seizure - Search by Police Sub-Inspector is without warrant - Accused charge-sheeted after investigation - Publication admitted by accused - Offence made cognizable under Section 8(2) - Prosecution not rendered invalid on ground that search being not conducted by a gazetted officer.
[Para 12]

Cases referred :
Kakodkar C.K. v. State of Maharashtra, AIR 1970 SC 1390.
Madhavrao v. Sambhajirao AIR 1988 SC 709.
Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881.
Chandrakant v. State of Maharashtra, AIR 1970 SC 1390.
Samaresh Bose v. Amal Mitra, AIR 1986 SC 967.

JUDGMENT

K. Sreedharan, J. - Petitioner seeks to quash the complaint filed by the police against him for offence u/Sections 3, 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986, hereinafter referred to as 'the Act' and Section 292-A, IPC.
2. Petitioner is the Printer and Publisher of a Cinema Magazine by name, 'Love'. The issue of that magazine dated 15-11-1988 contained photographs which is depicted as indecent representation of women. On getting information of that publication, Sub Inspector of Police searched the premises of first accused and seized two issues of the magazine, 'Love'. Now it is alleged that the petitioner has committed the offences mentioned earlier in publishing that issue of 'Love'. The contentions raised by the petitioner for quashing the charge are that the publication does not offend Section 292-A, IPC or Sections 3, 4 and 6 of the Act. He has also raised a contention that the action taken by the Sub Inspector of Police in making the search and seizure under the Act is illegal and incompetent. Prosecution initiated on the basis of the illegal search and seizure should not be allowed to proceed with.
3. Learned Advocate-General appearing in the case submitted that this Court is not to interfere with the complaint at this stage in exercise of the powers under Section 482 of the Code. Prosecution has not let in its evidence. The complaint, according to the learned Advocate General, brings out prima facie offence under Section 292-A, IPC and u/Sections 3, 4 and 6 of the Act. When such is the factual position, this Court is not to interfere with the proceedings before the trial Court in exercise of the powers u/Section 482 of the Code of Criminal Procedure.
4. In a case of this nature the question that arises for consideration is whether the publication is obscene u/Section 292-A, IPC or whether it contains indecent representation of women as coming within the purview of the Act. These issues are to be decided by the court. No oral evidence is necessary to decide whether the publication offends the law or not. The question whether the magazine, 'Love', printed and-published by the petitioner is obscene or not is not to depend on the oral evidence. Nor is the publication to be compared with other or similar periodicals. It is the duty of the Court to ascertain whether the magazine offends the provision of Section 292-A or those in the Act. The verdict as to whether the book or article or photographs printed therein, considered as a whole, panders to the prurient and is obscene must be judged by the Court (Vide Kakodkar C.K. v. State of Maharashtra, AIR 1970 SC 1390. I think it is the duty of the Court to examine the magazine and see whether it offends Section 292-A, IPC or any of the provisions in the Act. For considering that question, it is not necessary for this Court to examine or compare the impugned publication with reference to any other magazines, books or story. The issue to be decided does not depend on oral evidence. The Court is to adjudicate on it, on the basis of well established notions of decency and morality. This being the legal position, on such examination if this Court comes to the conclusion that the publication does not offend any of the provisions mentioned earlier, the complaint is to be quashed, for the prosecution if allowed to proceed with will amount to a waste of judicial time and an abuse of process of court. The High Court's power under Section 482 of the Code in dealing with the complaints of such nature was considered by the Supreme Court in Madhavrao v. Sambhajirao AIR 1988 SC 709. Their Lordships observed (para 7) :
    "The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to he applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage."
With this background I shall examine whether the proceedings before the Court below is to be quashed or not.
5. The word 'obscene' has not been defined in the Indian Penal Code or in the Act. Courts were deciding the question as to whether a publication is obscene or not, by resorting to the test laid down by Cockburn, C.J., in famous Hicklin's case (1868-3 QB 360). The test of obscenity in the learned Judge's words is "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 x x x x x 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 libidinous character." In Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881 Hidayathullah, J., (as he then was) speaking for the Constitution Bench observed (Para 21) :
    "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 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 decide that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book 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 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 be so preponderating 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 way."
6. As observed by the Supreme Court, the concept of obscenity would differ from country to country depending on the standards of morals and contemporary society. What is considered as a piece of literature in a foreign country may be obscene in our country. Even standard of contemporary, society in India are fast changing. The adults and adolescents have available to them a large number of classics, novels, stories and piece of literature which contain sex, love and romance. If reference to sex by itself is considered as obscene no book can be sold except which are purely religious. In the field of cinema the adolescents are shown situations which even a quarter of a century ago would have been considered derogatory to public morality. Having regard to the changed conditions more such scenes are taken for granted without in any way tending to debase or debauch the mind. What the Courts have to see is whether a class into whose hands the book falls suffer in their moral outlook or became depraved by reading it or might have impure and lecherous thoughts aroused in their minds. Vide Chandrakant v. State of Maharashtra, AIR 1970 SC 1390.
7. In judging the question of obscenity the judge should 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 create in the minds of readers. He should apply his judicial mind dispassionately to decide whether the publication in question can be said to be obscene within the meaning of Section 292 IPC by an objective assessment of the whole book. In Samaresh Bose v. Amal Mitra, AIR 1986 SC 967, their Lordships of the Supreme Court stated (para 34) :
    "A vulgar writing is not necessarily, obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences."
Their Lordships went on to state (para 34) :
    "If a reference to sex by itself in any novel is considered to be obscene and not fit to be read by adolescents, adolescents will not be in a position to read any novel and will have to read books which are purely religious".
8. There is difference between obscenity and pornography. The latter denotes writings, pictures etc. intended to arouse sexual desire. While obscenity includes writings etc. not intended to do so but which have that tendency. Both offend public decency and morals. Pornography is obscenity in a more aggravated form.
9. Among all the creatures of nature human beings are the most refined ones. Male species of all types of animals and birds are considered more beautiful than their respective females. But in literature, ladies are described as beautiful. A pretty damsel is beautiful to behold. A thing of beauty is a joy for ever. Are the bodies of females obscene ? A brazenly nude body may evoke a feeling of disgust and revolution. If nudity is properly covered, human body whether of male or female cannot be regarded as objects of obscenity without something more. That something more is to be found in the facial expression or pose in which it is photographed. The photograph of a female body, cannot be considered as obscene or as an indecent representation of woman, if the above mentioned something more is absent.
10. In the light of what has been stated above, I will examine the magazine, 'Love', the publication which has given rise to this proceeding. The printed materials in the magazine do not contain any obscene or vulgar language. News relating to film stars and incidents that happened in the film world are alone printed in it. These news items are given in language which cannot be termed as obscene. The printed materials do not have the tendency to deprave and corrupt those whose minds are open to immoral influences. For printing and publishing these materials the petitioner cannot be held liable for any of the offences mentioned in the charge.
11. The magazine contains photograph of a lady as its centre-spread. Lower portion of one of her thighs and cleavage are exposed. Facial expression is not at all provocative. The lady has properly covered her nudity. This photograph has not got the effect of arousing sexual feelings in an ordinary human being. Nor has it got the effect of depraving or corrupting the minds of those who are open to influence and into whose hands the magazine is likely to fall. The impugned publication contains photographs of ladies on pages 11, 14, 15, 22 and 23. In those photographs the models are seen with dress which can be described as an apology for a dress. The pose, facial expression and lay out are certainly objectionable and provocative. Those pictures, prima facie, come within the mischief of the provisions contained in the Act. Therefore, I am not in a position to hold that the impugned publication is not offending the provisions of the Act.
12. Learned counsel representing the petitioner submitted that the entire prosecution has to fail because of the search and seizure made by the Sub Inspector. As per Section 5 of the Act only a gazetted officer authorised by the Government to exercise power under the Act can search and seizure any article or publication under the Act. According to counsel, this is a safeguard available to the publisher. Only in pursuance to such a search and seizure can a prosecution under the Act be initiated. That safeguard has been denied to the petitioner by the Sub-Inspector effecting the search and seizure. It is on the basis of that illegal search and seizure, prosecution has been launched. According to the petitioner it vitiates the entire proceedings and hence the charge is to be quashed. Learned Advocate General on the other hand would contend that search and seizure made by the Sub Inspector is not fatal to the prosecution because the offence under the Act has been made cognizable by Section 8(2) of the Act. By virtue of that provision, a police officer who comes to know of the commission of the offence is entitled to arrest the offender without warrant and after investigation charge-sheet him. The report so filed cannot be quashed on the ground that search and seizure were illegal. I find much force in the argument advanced by the learned Advocate General. The search and seizure carried out by the Sub Inspector cannot be taken as the sole basis for prosecution. It is the printing and publication of the magazine that constitute the offence. Petitioner has admitted the printing and publication of the magazine. Viewed in this manner, I do not find any ground to quash the prosecution.
In view of what has been stated above, I find no way to, quash the complaint or prosecution launched against the petitioner. The Criminal M.C. is dismissed.

Petition dismissed.
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