# [1970] 2 S.C.R. 80

- **Citation:** [1970] 2 S.C.R. 80
- **Court:** Supreme Court of India
- **Decided:** 1969-08-25
- **Case number:** Crlminal Appeal No. 170 of 1967
- **Bench:** S. M. Sikri, G. K. Mitter, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1970-2-s-c-r-80-4950
- **Pages:** 10

## Headnote

Obscenity-Tests for determining-Penal Code Sec. 292.
The appellant, the author of a short story and the printer and publisher
of the story were comicted under section 292 J.P.C. on a charge of ob·
scenity.
Setting aside the conviction this Court,
A
B
HELD : It is the duty of the Court to consider the article, story or
book by taking an overall view of the
entire work and to determine
C
whether the obscene passages are so likely to deprave and corrupt those
whose minds are open to such influences and in whose hands the book
is likely to fall; and in doing so the influence of the book on the social
morality of our contemporary society cannot be overlooked. Even so, as
the question of obscenity may have to be judged in the light of the claim
that the work has a pre-dominant literary merit, it may be necessary if it
is at all required, to reJy to a certain extent on the evidence and views of
leading litterateurs on that aspect. [82 D; 83 E-G]
D
To insist that the standard would always be for the writer to see that
the adolescent ought not to be brought into contact with sex or that if
they read any references to sex in what is written, whether that is the
dominant theme or not, they would be affected, would be to require the
authors to write books only for the adolescent and not for the adults.
What has to be seen is that whether a class, not an isolated case, into
whose hands the book, article or story falls suffer in their moral outlook or
E
become depraved by reading it or might have impure or lecherous thoughts
aroused in their minds. The charge of obscenity must, therefore, be judged
from this aspect. [88 D, G-HJ
RanFt D. Udeshi v. State of Maharashtra [1965] I S.C.R., 65 followed.
Applying the above tests the story read as a whole did not amount to
its being parnography nor did it pander to the prurient interest. [87 A-Bl
F

## Text

80
CHANDRAKANT KALYANDAS KAKODAR
!'.·
THE STATE OF MAHARASHTRA AND ORS.
August 25, 1969
(S. M. SIKRI, G. K. MITTER AND P. JAGANMOHAN REDDY, JJ.]
Obscenity-Tests for determining-Penal Code Sec. 292.
The appellant, the author of a short story and the printer and publisher
of the story were comicted under section 292 J.P.C. on a charge of ob·
scenity.
Setting aside the conviction this Court,
A
B
HELD : It is the duty of the Court to consider the article, story or
book by taking an overall view of the
entire work and to determine
C
whether the obscene passages are so likely to deprave and corrupt those
whose minds are open to such influences and in whose hands the book
is likely to fall; and in doing so the influence of the book on the social
morality of our contemporary society cannot be overlooked. Even so, as
the question of obscenity may have to be judged in the light of the claim
that the work has a pre-dominant literary merit, it may be necessary if it
is at all required, to reJy to a certain extent on the evidence and views of
leading litterateurs on that aspect. [82 D; 83 E-G]
D
To insist that the standard would always be for the writer to see that
the adolescent ought not to be brought into contact with sex or that if
they read any references to sex in what is written, whether that is the
dominant theme or not, they would be affected, would be to require the
authors to write books only for the adolescent and not for the adults.
What has to be seen is that whether a class, not an isolated case, into
whose hands the book, article or story falls suffer in their moral outlook or
E
become depraved by reading it or might have impure or lecherous thoughts
aroused in their minds. The charge of obscenity must, therefore, be judged
from this aspect. [88 D, G-HJ
RanFt D. Udeshi v. State of Maharashtra [1965] I S.C.R., 65 followed.
Applying the above tests the story read as a whole did not amount to
its being parnography nor did it pander to the prurient interest. [87 A-Bl
F
CRIMINAL APPELLATE JURISDICTION : Crlminal Appeal No.
170 of 1967.
Appeal by special leave from the judgment and order dated
October 25, 1966 of the Bombay High Court in Criminal Appeal
No. 805 of 1965.
S. S. Kavalekat, K. Rajendra Chaudhuri and K. R. Chaudhuri,
for the appellant.
H. R. Khanna, B. D. Sharma and S. P. Nayar, for respOlll.dent
No. 1.
G
The Judgment of the Court was delivered by
H
P.
Jaganmohan Reddy, J.
This appeal is by special
leava directed against the judgment of the Bombay High Court.
A
B
c
D
E
F
G
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C, K. KAKODAR V. MAHARASHTRA (Reddy, J.)
81
The appellant is the auihor of a short story entitled Shama
published in the 1962 Diwali Issue of Rambha, a ~o~thly Marathi
Magazine, which story is said to be obscene. Crimmal p~oceed
ings .were, therefore, initiated before the first class Magistrate,
Poona by the complainant Bhide under s. 292 l.P .C. against the
Printer and Publisher accused 1, the writer of the story accused
2 and the selling agent accused 3. The complainant stated that
he had read the aforesaid Diwali issue of Rambha and found
many articles and pictures in it to be obscene which are calculated
to corrupt and deprave the minds of the readers in general and
the young readers in particular. The Complainant further referred to several other articles in the same issue such as the
story of Savitri and certain cartoons but we are not now concerned
with these because both the Magistrate as well the High Court
did not think that they offended the provisions of s. 292 l.P.C.
the magistrate after an exhaustive consideration did not find the
accused guilty of the offence with which they were charged and,
therefore, acquitted them. The complainant and the State filed
appeals against this judgment of acquittal. Before the High Court
it was conceded that there was no evidence that accused
No. 3 had sold any copies of the issues of Rambha and accordingly
the order of acquittal in his favour was confirmed.
In so far as
the other two accused are concerned it reversed the order of
acquittal and convicted the printer and publisher accused 1 and
the writer accused 2 :inder s. 292 I.P.C. but taking into consideration the degree of obscenity in the passages complained of a fine
of Rs. 25 /- only was imposed on each of the accused and in default
they were directed to suffer simple imprisonment for a week.
It
was also directed that copies of the magazine Rambha in which the
offending story was published and which may' be in possession and
power of the two accused be destroyed.
The allegation .against the accused is that certain passages
in the story of Shama at pp. 111-112, 114, 116, 118-121, 127,
128, 131, and 134 are said to be obscene.
In support of this
the complainant examined himself and Jed
the
evidence
of
Dr. P. G. Sahstrabudhe and Dr. G. V. Purohit in support of his
allegation that the novel is obscene and that the writer and publisher contravened the provisions of s. 292 I.P.C.
Accused No. 1
stated that the story of Shama was written by an :able writer
which depicted the frustration in the life of a poet and denied
that it was obscene.
The writer Kakodar, accused No. 2 claims
to have written about 60 such stories which are published in
different periodicals by reputed publishers.
He also denies that
. Shama is obscene and states that he has introduced certain
characters in order to condemn the worst and glorify the best
and it was never his intention to titillate the sex feelings of the
82
SUPREME COURT REPORTS
(1970] 2 S.C.R.
readers, but on the other hand his attempt was to achieve the
literary and artistic standard which was in keeping with the
style of some of the able and successful writers of Marathi literature.
In support of his defence, he examined Shri Keluskar and
Prof. Madho Manohar D.Ws. I and 2 respectively.
The Court
on its own summoned and examined Prof. N. S.
Phadke and
Acharya P. K. Atre.
Both the magistrate as well as the learned
Judge of the High Court were conversant with Marathi and they
seem to have read the story of Shama in the original, an advantage
which we have not got.
However, 011; a consideration of the
offending passages in the story to wnich we shall refer presently,
they came to different and opposite conclusions.
It is apparent that the question whether a particular article
or story or book is obscene or not does not altogether depend on
oral evidence because it is the duty of the court to ascertain
whether the book or story or any passage or passages therein
offend the provisions of s. 292. 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 leading litterateurs on that aspect particularly when
the work is in a language with which the Court is not conversant.
Often a translation may not bring out the delicate nuances of the
literary art in the story as it does in the language in which it
is written and in those circumstailces what is s1id about its
literary quality and worth by persons competent to speak may be
of value, though as was said in an earlier decision, the verdict
as to whether the book or article or story considered as a whole
panders to the prurient and is obscene must be judged by the
courts and ultimately by this Court.
What is obscenity has not been defined either in s. 292 IPC or
in any of the statutes prohibiting and penalising mailing, importing, exporting, publishing and selling of obscene matters.
The
test that has been generally applied in this country was that laid
down by Cockburn, C.J. in Hickli11's case(') and even after the
inauguration of the Constitution and considered in relation to
the fundamental right of freedom of speech and expression this
test, it has been held, should not be discarded.
In Hicklin's
case(') while construing statutes 20 and 21 Victoria, a measure
enacted against obscene books, Cockburn, C.J. formulated the
test in these words :
"I think the test of obscenity is this, whether the
tendency of the matter charged as obscenity is io deprave and corrupt those whose minds are open to such
immoral influences, and into wh0se hands publication of
{I) (1868] L.R. 3 Q.B. 360.
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II
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B
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C. K. KAKODAR v. MAHARASHTRA (Reddy, J.)
83
this sort may fall ... 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, thought of most
impure and libidinous character."
This Court has in Udeshi v. State of Maharashtra(') considered
the above test and also the test laid down in certain otlier1
American cases.
Hidayatullah, J. as he then was, at the outsef1
pointed out that it is not easy to lay down a true test because ,
"art has such varied facets and such individualistic appeals that
in the same object the insensitive sees only obscenity because
his attention is arrested, not by the general or artistic appeal or
message which he cannot comprehend, but by what he can see,
and the intellectual sees beauty and art but nothing gross." It
was also pointed out in that decision at p. 7 4,
"None has so far attempted a definition of obscenity
because the meaning can be laid bare without attempting a definition by describing what must be looked for.
It may, however, be said at once that treating with sex
and nudity in art and literature cannot be regarded as
evidence of obscenity without something more.
It is
not necessary that the angels and saints of Michaelangelo should be made to wear breeches before they can
be viewed. If the rigid test of treating with sex as the
minimum ingredient were accepted hardly any writer
of fiction today would escape the fate Lawrence had
in his days.
Half the book-shops would close and the
other half would deal in nothing but moral and religious
books which Lord Campbell boasted was the effect of
his Act."
It is, therefore, the duty of the court to consider the obscene
matter by taking an overall view of the entire work
and
to
determine whether the obscene passages are so likely to deprave
~nd corrupt those whose minds are open to such influences and
1Il whose hands the book is likely to fall and in doing so one
must not overlook the influences of the book on the social morality
of our contemporary society.
We can do no better than to refe(
to this aspect in the language of Hidayatullah, J. at p. 76 :
_
"An overall view of the obscene matter in the setting
oTthe 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 decided 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 fail."
(I) (1965] 1 S.C.R. 65.
84
SUPREME COURT REPORTS
[1970]2 S.C.R.
Referring to the attempt which our national and regional
languages are making to strengthen themselves by new literary
standards after a deadening period under the impact of English,
it was further observed at p. 77,
"that where obscenity and art are mixed, art must
so preponderate 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 detenmne 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."
Bearing in mind these observations and the tests laid down in
Udeshi's case,"(') we propose to examine, having regard t,.. our
national standards, the passages in Shama to ascertain in the
light of the work as a whole whr-ther the treat with sex in
such a way as to be offensive to public decency and morality
as can be consi!fered likely to pander ; a lascivious, prurient or
sexually precocious minds.
The second appellant writes about the life of a poet Nishikant
who left school in the days of freedom struggle, wrote revolutionary poems, but as the freedom struggle waned he did not join
school as others had done notwithstanding his brother's advice
that he should pass the matric so that he could be employed in
service, As he was mostly unemployed, he was living on his
brother and on the bounty of his sister-in-law who was kind and
considerate to him.
Nishikant, it will appear, is emotional, sensitive and has the power to discern right from wrong.
The story
starts ; with his being employed as a teacher and his
!neetin~
Shama, the Music teacher in the school.
His attraction for her
and the opportunity she gives him to meet her alone in her room
fills him with a sense of foreboding lest he may have to endure
the pangs of suffering which he had to undergo in his two earlier
affairs with Neela and Vanita.
The poet recalls
these
two
affairs individually and we get the impression that the pain which
he underwent should not be repeated. It is more as a repellant
to any further involvement with Shama that these experiences
are related.
(I) [1965] I S.C.R. 65.
A
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c. K. KAKODAR v. MAHARASHTRA (Reddy, !.)
85
Neela who is about 17 years of age is the daughter of a
distant maternal cousin of his mother.
As sh~ had reached the
ma,riageable age, her father in Goa, Wasudeo who _always trea~ed
Nishikant's mother like his own sister is anxious to get her mamed
to some eligible youngman, but evidently the opportunity
for
choosing the right person was
remote.
So
he
suggests to
Nishikant's mother that Nishikant should come and bring Neela
to Bombay to Jive with them where they
would have
be!ter
opportunity of choosing a youngman for her to be mamed.
Nishikant who was appointed in a newspaper office was at first
reluctant but his sister-in-law persuades him and so he goes to
Goa.
When he meets Neela, she had changed and was not as
ugly as when he had seen her earlier.
The author then depicts
the slow but steady maturing of the love between them,
the
seeking of and getting of opportunities to be near to each other,
their having to sleep in the same bed while on the boat coming
to Bombay and ultimately falling in love with each other which.'.'
developed during Neela's stay in Bombay.
During Neela's stay
with Nishikant's family the love between her and Nishikant
became intense as a result Ni>hikant proposes to marry her and
writes to her father for his consent.
They wait for a reply but
unknown to Nishikant, Neela receives a reply from her father
rejecting the proposal on the ground that Nishikant is unemployed and would not join Government service even though he had
suggested it to hiIIJ.
He says in that letter that poetry may bring
him fame bui would not give him a livelihood. As he was entirely dependant on his brother for his
maintenance, the father
refused to give his consent in the interest of Neela's happiness and
told her that he was coming back to fetch her.
As Neela was
in love with Nishikant but she knew that she would not be
married to him, she encourages him to bring their love to culminanation.
This state of affairs lasted for a few days before her
father took her away.
About two months later Nishikant receives
an invitation card for Neela's marriage and thereafter he received
another letter written by Wasudeo to his daughter to which we
have earlier referred and which also contained at the back of
it Neela's message to Nishikant asking ljim to forget her.
Even after four years he was unable to forget Neela and had
taken to drinking and coming home late.
He was idle for Jong
spells and whenever he thought of Neela he wrote a poem.
Then
one day he was introduced to Va.,ita who was a graduate and
a married woman who had left her husband.
She was a critic
of stories and novels.
When they met, she had praised
hiS
poems and had invited him to come to her room ostensibly to
discuss his poetry.
Vanita is shewn as an oversaxed woman,
experienced and forward, making advances and suggestions.
Ultimately she and Nishikant have several affairs till one morning
i6
SUPREME COURT REPORTS
[1970] 2 S.C.R.
he finds that the person who had introduced her to him was
coming out of her room and when he went in he found Vanita
sleeping naked.
His spirit revolted seeing her in that condition.
He was greatly upset at her recalcitrance when he asked her how
many more men she had.
She replied that it had nothing to do
with him, that he had got what he wanted and she does not want
ro be a slave to any person.
He retorted with indignation that
ne did not wish to see her face and walked out.
He had then
maae up bis mind not to have any relations with any woman.
It was with such unpleasant experiences that when he met
Shama and was attracted to her he was hesitating and avoiding
meeting her alone but circumstances conspired to bring them
together and again another affair developed between them.
He
encourages Shama to sing, writes lyrics for her songs and when
she gives a performance in school he arranges for a radio and
gramophone representatives to be present there.
Her music was
appreciated and she began to get audition from these sources. It
appears one of the school teacher Kale had earlier attempted to
make love to Shama and she had slapped
him.
When
Kale
informs Nishikant that he knows about his affairs with Shama,
Nishikant gets angry and tells him that he knows how he was
slapped by Shama for making advances to her.
This enraged
Kale and he seems to have taken his revenge by maligning the
character of Shama to the Principal. As a result of this, the
Principal dismissed her.
Hearing this, Nishikant gets angry,
goes to the Headmaster and accuses him of being an accomplice
of Kale and leaves the service.
He then persuades Shama to
start a music school, later gets her engagements in films as a
playback singer for which he wa~ asked to write lyrics.
Shama's
reputation as a singer grows rapidly in the Marathi public.
It
was then that her uncle knowing of it comes to see her and 'Ilakes
insinuations against Nishikant who is offended and hurt because
Shama does not prevent her uncle but listens to him without a
demur.
Periodical quarrels are witnessed
because
Shama
becomes more status minded, begins to think of her wealth and
position and moves into wealthy quarters all of which are against
Nishikant's outlook and temperament.
Both began to fall apart
and the visits of Nishikant to Shama became rare.
Even though
Nishikant lives in poverty, he is too proud to ask her money and
is not willing to live with her on her conditions. He stays away
from her, showing that he has pride, self respect and spirit of
sacrifice.
Suddenly a realisation comes to Shama that she had
wronged Nishikant and that she . owed everything to him, and
therefore has an intense desire for reconciliation.
In this state
of affairs when she hears that he is taking part in the Kavi Samelan
on the radio she gets into the car and asks her driver to drive fast
A
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C. K. KAKODAR v. MAHARASHTRA (Reddy, J.)
87
to the radio station.
On this pitch of expectant reconciliation
and ultimate reunion the story ends.
The story read as a whole d?es not, in our view! aill:ount to
its being a pornography nor does 1t pander to tbe prunent mterest.
It may not be of a very high lit~rary quality and ma>'. show
immaturity and insufficient experience of the wnter, but Ill none
of the passages referred to by tbe complainant do we find anything offending public ord~r ?r morality.
The High ~ourt itself
did not consider the descnption of Neela when N1sh1kant meets
her in Goa (at p. 107) objectionable, nor the narration and the
description of the situation which is created for Nishikant and
Neela on the way back to Bombay from Goa when for want of
room tbey had to sleep on a single bed (p. 112)
as obscene.
The passages at pp. 112, 114, 119-120 and 131 have been found
by tbe High· Court to come within tbe mischief of s. 292 I.P.C.
We have been taken through tbe corresponding passages in tbe
English translation and even
allowing for tbe translation not
bringing out tbe literary or artistic refinement of the original
language, we find little in these passages which could be uaid
to deprave or corrupt those in whose hands the book is likely
to fall, nor can it be said tbat any of tbe passages advocates, as
tbe High Court seems to think, a licentious behaviour depraving
and corrupting the morals of adolescent youth.
We
do
not
tbink tbat it can be said with any assurance that merely because
adolescent youtb read situations of the type presented in tbe book,
they would become depraved, debased and encouraged to lasciviousness. It is possible that they may come across such situations in life and may have to face them.
But if a narration or
description of similar situations is given in a setting emphasising
a strong moral to be drawn from it and condemns the conduct
of tbe erring pariy as wrong and loathsome it cannot be said that
F
they have a likelihood of corrupting the morals of those in whose
hands it is likely to fall-particularly the adolescent.
G
H
In the passage at pp. 113-114 Nishikant takes Neela out to
sho:v the sights of the city of Bombay but instead takes her to
a. p1c~re w.here after. ~e lights go off, seeing· a soldier and his
girl frien? Ill front kissmg, they also indulge in kissing.
Then
as we said earlier, when the love between them develops Nishikant .. wanted to
m~i;y but the father of the girl was
unwillmg.
Neela realismg tbat their Jove could never be consummated ~ncourages .him ~o bri::g it to a culmination. In this way
they enioy unmamed bliss for a few days until Neela's father takes
her away.
·
.
We. agr~ W!th th~ learned Judge of the High Court that there
IS n~thmg In thIS or m. the subsequent passages relating to Neefa,
V aruta. and Shama which amounts to poronography nor has the
author intlulged in a description of the sex act or used
any
88
SUPREME COURT REPORTS
[1970] 2 S.C.R.
language which can be classed as vulgar.
Whatever has been
done is done ir.. a restrained manner though in some places there
may have been an exhibition of bad taste, leaving it to the more
experienced to draw the inferences, but certainly not suflicienf
, to suggest to the adolescent anything which is depraving or
lascivious.
To the literate public there are- available both to the
adults and the adolescents innumerable books
which
contain
references to sex. Their purpose is not, and they have not the
effect of stimulating sex impulses in the reader but may form part
of a work of art or are intended to propagate ideas or to instil
a moral.
The concert of obscenity would differ from country to country
depending on the standards of morals of contemporary society.
What is considered as a piece of literature in France may be
obscene in England and what is considered in both countries as
not harmful to public order and morals may be obscene in our
country.
But to insist that the standard should always be for
the writer to see that the adolescent ought not to be brought
into contact with sex or that if they read any references to sex
in what is written whether that is the dominant theme or not
they would be affected, would be to require authors to Write books
only for the adolescent and not for the adults.
In early English
writings authors wrote only with unmarried girls in view but
society has changed since then to allow litterateurs and artists
to give expression to their ideas, emotions and objectives with
full freedom except that is should not fall within the definition
of 'obscene' having regard to the standards of contemporary
society in which it is read.
The standards 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.
As observed in U deshi' s ( 1) case if a reference to
sex 1:>y itself is considered obscene, no books can be sold except
those which are purely religious.
In the field of art and cinema
also the adolescent is shown situations which even a quarter of a
century ago would be considered derogatory to public morality,
but having regard to changed conditions are more taken for grantB
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ed without in anyway tending to debase or debauch the mind.
G
What we have to see is that whether a class, not an isolated case,
into whose hands the book, article or story falls suffer in their
moral outlook or become depraved by reading if or might have im·
pure and lecherous thought aroused in their mjnds. The charge
of obscenitv must. therefore, be judged from this aspect.
We do not think that any of the impugned passages which
~ave been held by the High Court as offending s. 292 I.P.C. can
(I) [1965] 1 S.C.R. 65.
H
C. K. KAKODAR v. MAHARASHTRA (Reddy,/.)
89
A be said to pervert the morals of the adolescent or be considered
to be ob~cene. In this view, we allow the appeal, set aside the
conviction and fine.
The fine if paid is directed to be refunded.
R.K.P.S.
Appeal allowed.
B
LI Sup. Cl/70-7