# [1985] Supp. 3 S.C.R. 17

- **Citation:** [1985] Supp. 3 S.C.R. 17
- **Court:** Supreme Court of India
- **Decided:** 1985-09-24
- **Case number:** Criminal Appeal No. 174 of 1973
- **Bench:** Pathak, Amarendra Nath Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1985-supp-3-s-c-r-17-9036
- **Pages:** 38

## Headnote

Indian Penal Code, section 292, ingredients snd scope of -
Obscenity, concept of - Duty of the Court in judging the question
of obscenity, explained - Whether the novel under the caption
'Prajapsti' published in "Sarodiya Desh" in the Bengali Journal
Desh contains matters which are obscene attracting liability
under section 292 read with section 109 1,p,C, of the author and
the printer ·and the publisher.
Samaresh Bose, the first appellant, 1a a well-known writer
of Bengali Novels and stories. He is the author of a novel which
under the caption "Prajapsti • came to be published in "Sarodiya
Desh" (the annual pooja number of the Bengali Journal 'Deah') for
the Bengali year 1374 B.S. The novel centres round one Sukhen who
figures as the main character and seeks to express the feelinga,
tholl8hts and actions of · Sukben and to portray
his character.
This the author seeks to do throlJ8h Sukben himself who narrates
bis own experiences, feelings, tho1J8hts and actions in hia own
words -what he has seen in others, which·he despised and what he
himself did and how he fell a victim to wine and -
and later
gradually slided into slimy life from that of the atmosphere he
earlier experienced, bereft of any love and affection and proper
guidance. "Desh" is a journal of repute with wide circulation and
the puja number is read by lovers of Bengali literature of all
age groups all over India, Sitangahu Kumar Dasgupta, the aecond
appellant is the publisher and the printer of the journal
containing the said publication.
On the 2nd of February, 1968, hnal Mitra, the 18cond
reapondent, and a young Advocate, made an application in the
Court of the Chief Preaidency Magiatrate at Calcutta complaining;
(a) that the aaid novel "Prajapati • containa matters which are
obscene;
(b)
that
both
the aecuaed
persons
have,
sold,
distributad, printed and uhibited the 1ame which has the
tendency to corrupt the morale of those in whose handa the said
"Serodiya Deah" may fall and the reading public as well"; and (c)
that therefore, both the accuaed persons have committed an
offence punishable under section 292 lnd1an Penal Code read
aection 109 thereof.
A
B
c
D
E
F
G
H
A
18
SUPREME COURT REPORTS
[1985] SUPP.3 s.c.R.
On the basis of the said complaint and after compliance
with the necessary formalities, a Criminal
Case No.
353/68
against both the accused persons came to be started and disposed
of by the then Chief Presidency Magistrate of Cslcutta by his
judgment dated 11th February, 1968. During the trial on behalf of
B
the accused Shri Budhadev Bose, (a whole time writer in Bengali,
Professor
of
various
institutions,
the
Chairman
of
the
Comparative Literature at Jadavpur University, visiting professor
of various universities in United States of America) and one Dr.
Naresh Chandra Guba (the Professor and Head of the Department of
Comparative Literature at Jadavpur University who
had delivered
lectures
on
Bengali
literature
before
various
literary
c
gatherings, over the radio and also in the University of Chicago
J
on the works of Rabindra Nath Tagore) were examined. When various
passages which are alleged to be obscene by the complainant were
~
put to them, both the witnesses emphatically refuted that there
was any obscenity in any of those passages. According to them,
the words
used by the accused author may have been unknown in
literature but they were very widely current in speech; that by
lJ
introducing these forceful words into literature the author has
.done a service to Bengali Literature the author has done a
service to Bengali Literature and language making the book
praiseworthy; that the passages were necessary as they bring
about the D>Jral aspects of the hero's character and that the
E
novel has great social and D>Jral value.
,.
The Trial Judge did not place any reliance on the testiD>Jny
of these two eminent witnesses and proceeded to make his own
assessment after reading the book and that too "with an open mind
and a number of times" for the reason t

## Text

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17
SAIWIESH BOSE AND ANR.
V•
AMAL MIIRA AND ANR.
SEPTEMBER 24, 1985
[R.S, PATHAK AND AMARENDRA NATH SEN, JJ.]
Indian Penal Code, section 292, ingredients snd scope of -
Obscenity, concept of - Duty of the Court in judging the question
of obscenity, explained - Whether the novel under the caption
'Prajapsti' published in "Sarodiya Desh" in the Bengali Journal
Desh contains matters which are obscene attracting liability
under section 292 read with section 109 1,p,C, of the author and
the printer ·and the publisher.
Samaresh Bose, the first appellant, 1a a well-known writer
of Bengali Novels and stories. He is the author of a novel which
under the caption "Prajapsti • came to be published in "Sarodiya
Desh" (the annual pooja number of the Bengali Journal 'Deah') for
the Bengali year 1374 B.S. The novel centres round one Sukhen who
figures as the main character and seeks to express the feelinga,
tholl8hts and actions of · Sukben and to portray
his character.
This the author seeks to do throlJ8h Sukben himself who narrates
bis own experiences, feelings, tho1J8hts and actions in hia own
words -what he has seen in others, which·he despised and what he
himself did and how he fell a victim to wine and -
and later
gradually slided into slimy life from that of the atmosphere he
earlier experienced, bereft of any love and affection and proper
guidance. "Desh" is a journal of repute with wide circulation and
the puja number is read by lovers of Bengali literature of all
age groups all over India, Sitangahu Kumar Dasgupta, the aecond
appellant is the publisher and the printer of the journal
containing the said publication.
On the 2nd of February, 1968, hnal Mitra, the 18cond
reapondent, and a young Advocate, made an application in the
Court of the Chief Preaidency Magiatrate at Calcutta complaining;
(a) that the aaid novel "Prajapati • containa matters which are
obscene;
(b)
that
both
the aecuaed
persons
have,
sold,
distributad, printed and uhibited the 1ame which has the
tendency to corrupt the morale of those in whose handa the said
"Serodiya Deah" may fall and the reading public as well"; and (c)
that therefore, both the accuaed persons have committed an
offence punishable under section 292 lnd1an Penal Code read
aection 109 thereof.
A
B
c
D
E
F
G
H
A
18
SUPREME COURT REPORTS
[1985] SUPP.3 s.c.R.
On the basis of the said complaint and after compliance
with the necessary formalities, a Criminal
Case No.
353/68
against both the accused persons came to be started and disposed
of by the then Chief Presidency Magistrate of Cslcutta by his
judgment dated 11th February, 1968. During the trial on behalf of
B
the accused Shri Budhadev Bose, (a whole time writer in Bengali,
Professor
of
various
institutions,
the
Chairman
of
the
Comparative Literature at Jadavpur University, visiting professor
of various universities in United States of America) and one Dr.
Naresh Chandra Guba (the Professor and Head of the Department of
Comparative Literature at Jadavpur University who
had delivered
lectures
on
Bengali
literature
before
various
literary
c
gatherings, over the radio and also in the University of Chicago
J
on the works of Rabindra Nath Tagore) were examined. When various
passages which are alleged to be obscene by the complainant were
~
put to them, both the witnesses emphatically refuted that there
was any obscenity in any of those passages. According to them,
the words
used by the accused author may have been unknown in
literature but they were very widely current in speech; that by
lJ
introducing these forceful words into literature the author has
.done a service to Bengali Literature the author has done a
service to Bengali Literature and language making the book
praiseworthy; that the passages were necessary as they bring
about the D>Jral aspects of the hero's character and that the
E
novel has great social and D>Jral value.
,.
The Trial Judge did not place any reliance on the testiD>Jny
of these two eminent witnesses and proceeded to make his own
assessment after reading the book and that too "with an open mind
and a number of times" for the reason that expert knowledge has
nothing to do with such cases and whether a book is obscene or
F
not depends on the interpretation of section 292 I.P.C. only.
After setting out in his judgment the gist of the story and
referring to various aspects and incidents and at length for "'
considering whether the book can be said to be obscene, he found
that the novel in question was obscene within the mischief of
section 292 I.P.C. Both the accused were, therefore, found guilty
G
by the Trial Judge under section 292 J .p,c. read >dth 109 I.P.C.
The Trial Judge accordingly convicted both the accused and
sentenced both of them to a fine of rupees 201 each and in
default. to undergo simple imprisonment for two D>Jnths each. The
Trial Judge also directed that the pages from 17 4 to 226 of the
journal be destroyed under the provisionn of section 521 Criminal
H
Procedure Code after the period of appeal was over•
,
l
fu\MARESH BOSE v. AMAL MITRA
19
Against the judgment and order passed by the Trial Judge
both t.he accused preferred an appeal to the High Court at
Calcutta. The complainant also filed a criminal revision in the
High Court for enhancement of the sentence imposed by the Chief
Presidency Magistrate on the two accused persons. The Criminal
Appeal Nwnber 106/1969, and the Criminal Revision Number 299 of
1969 were heard together and disposed of by a Singl"' Judge of the
High court by a collllllOn judgment delivered on 27.6.1972. The High
Court discharged the rule in the Criminal Revision No.
299/1969
and dismissed the appeal affirming the conviction and sentences
imposed oa both the accused persons. The High Court, however,
modified the order regarding the destruction of pages from 174 to
226 of the Journal under section 521 Cr. P.c. by observing tbat
in as much as the said novel which appear at those pages has been
published in the form of a book also the Chief Presidency
Magistrate should take appropriate steps under section 521 in
respect of the copies of the novel published separately in a book
from. Hence the appeal by the accused persons, after obtaining
special leave of the Court.
Allowing the appeal, the Court
llEID: l.l The question whether a particular book is obscene
or not, does not altogether depend on oral evidence because it is
A
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the duty of the Court to ascertain whether the book offends the
E
provisions of section 292 I.P.C. It may be necessary if it is at
all required, to rely to a certain extent on the evidence and
views of leading literateures on that aspect particularly when
the book is in a langusge. with which the Court is not
conversant. [53 D-F)
l!anjit D. Udesh1 V• State of Maharashtra, [1965] l s.c.R.
F
65; C2umdrakant lral.yandas !talmdar v. State of Maharashtra, [1970]
-...
2 s.c.R. 80 relied on.
l.2 Unlike England where the decision on the question of
obscenity
rests
with
the
jury,
in India,
however,
the
responsibility of the decision rests essentially on the Court. In
deciding the question of obscenity of any book, story or article
the Court whose responsibility it is to adjudge the question may,
if the Court considers it necessary, rely to an extent on
evidence and views of leading literary personage, if available
for its own appreciation and assessment and for satisfaction of
its own conscience. The decision of the Court lllllSt necessarily be
on an objective assessment of the book or story or article as a
whole and with particular reference to the passages complained of
G
H
I
A
B
20
SUPREME COURT REPORTS
[1985] SUPP.3 S.C.R.
in the book, story or article. The Court must take an overall
view of the matter complained of as obscene in the setting of the
whole work, but the matter charged as obscene
must
also be
considered by itself and separately to find out whether it is so
gross and its obscenity so prouounced that it is likely to
deprave and corrupt those whose millds are open to influence of
this sort and into whose hands the book is likely to fall. Though
the Court must consider the question objecti·vely with an open
miwi, yet in the matter of objective assessment the subjective
attitude of the Judge hearing the matter is likely to influence,
even though uncoucioualy his miwi awl his decision on the
question. A Judge with a puritan and prudish outlook may on the
c
basis of an objective asoeasment of any book or story or article,
consider the same to be obscene. It is poasible thet another
judge with a different kiwi of outlook may not consider the same
book to be obscene on his objective assessment of the very same
book. [47 IHI; 48 A-II)
The concept of obscenity is moulded to a very great extent
0
by the aocial outlook of the people who ere gei;erelly expected to
read the book. It 1• beyowi diapute that the concept of obscenity
usually differs from couotry to c.ountry depewiing on the
atawiarda of morality of contemporary society in different
couotrias. Therefore, in judging the question of obscenity, the
Judge in the first place should try to place himself in the
E position of the author and from the view point of the author the
Judge ehould try to uwieratand what is it that the author seeks
to convey and whether what the author convey• has any literary
and artiatic value. The Judge ahould, thereafter, place himself
in the poaition of • reader of every age group in whose hands the
book 1a likely to fall and ahould try to appreciate what kiwi of
F possible influence the book ia likely to hava in the mind• of the
reader1, A Judge, should thereafter, apply hie judicial mind
di1pu1ionstely to decide whether the book in question can be
aaid to be obscene within the meaning of aection 292 I.P.C. by an
objective u1H1111ent of the book aa a whole and alao of the
puaagas complained of ea obacene aeparatelyo In appropriate
G cuas, the ·Court, for eliminating any 1ubjectiw el-nt or
pereonal preference which may remain hidden in the au~onecioua
miwi
and
may
unconacioualy
effect
•
proper
objectiw
ee•H-nt, uy draw upon the evidenca on record and also
conaider the viewa aapreaaed by reputed or recoani••d author• of
literature on auch quaationa if there be any for hi• own
H conaidaration and 1&ti1faction to enable tbe court to di•chara•
the duty of making a proper uaeaamento [48 B-F]
·-
-
,
SAMARESH BOSE v. AMAL MITRA
21
Banjit D. Udeabi V• State of llabaraahtra, (1965] l S.C.R.
65;
a.imdrakant ialyandas J!!lrodar v. State of llabaraahtra,
(1970] 2 s.c.R. 80 relied on.
Queen V• Bead (11 Mod. 205 Q.B.); HjckUn'e case (1868]
L.R. 3 Q.B. 360; lloth'e case 354 U.S. 476; ll. V• Pengu1ne Books
Ltd. Crl. Law Review 1961 P Quoted with approval.
2.1 The novel "Prajapati" cannot be considered to be
obscene on any count, whether considered in the position as an
author or that of the reader. Sarodiya Desh is a very popular
journal and is read by a large number of Bengalies of both sexes
and alnx>st of all ages all over India by teenagers, young boys,
adolescents, grown-up youngmen and elderly people and
the novel
published in the Journal did not affect the iooral character of
the complainant as well. Reference to kissing, description of the
body and the figures of the female characters in the book and
suggestions of acts of sex by themselves may not have the effect
of depraving, debasing and encouraging the readers of any age to
lasciviousness. [51 F-1!)
2.2 A vulgar writing is not necessarily obscene. Vulgarity
arouses a feeling of disgust and revulsion and also boredom but
doea 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. [52 C-D]
2.3 In the instant case; (i) the character like Sukhen,
Shikha, the father and the brothers of Sukhen, the business
executives and others portrayed in the book are not just figments
of the author's imagination. Such characters are often to be seen
in real life in the society; (ii) the author who is a powerful
writer has used his skill. in focussing the attention of the
readers on such characters in society and to describe the
situation more eloquently he has used unconventional and slang
words so that in the light of the author's understanding, the
appropriate emphasis is there on the problems;
(iii) some
portions of the book may appear to be vulgar and readers of
cultured and refined taste may feel shocked and disgusted.
Equally in some portioils, the words used and description given
may not appear to be in proper taste. In some places there may
have been an exhibition of bad taste leaving it to the readers of
experience and maturity to draw the necessary inference but
certainly not sufficient to bring home to the adolescents any
A
B
c
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A
B
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22
SUPREME COURT REPORTS
[1985] SUPP.3. s.c.R.
suggestion which is depraving or laacivioua; and (iv) the author
bas written this novel which came to be published in the Sarodiya
Deah for all classes of readers and it cannot be right to insist
that the standard should always be for the writer to see that the
adolescent .may not be brought into contact with sex. 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.• [52 IHI; 53 A-DJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 174
of 1973.
From the Judgment and Order dated 27.6.1972 of the Calcutta
High Court in Crl. A. No. 106 of 1969.
~
G.L. Sanghi, Sukumaran and Ms. Ratna Kapur
for the Appellants.
U.R. Lalit, R.K. Jain, D.S. Mehta, M.M. Israily, Dilip
Sinha, J.R. Das and D.N. Mukharji for the Respondents.
The Judgment of the Court was delivered by
AMARENDRA NATH SEN, J. Samaresh Bose, the first appellant,
is a well-known writer of Bengali Novels and stories.
He is the
author of a novel which under the caption 'Prajapati' came to be
published in 'Sarodiya Desh' (the annual pooja nwnber of the
Bengali Journal 'Desh') for the Bengali year 1374 B.S.
'Desh is
a journal of repute with wide circulation and the puja nwnber is
read by lovers of Bengali literature of all age groups all over
lndia, Sitangshu Kumar Dasgupta, the second appellant was the
publisher and the printer of the journal at the relevant time.
On the 2nd of February 1968, Amal Mitra, a young Advocate,
made an application in the Court of the Chief Presidency
Magistrate
at
Calcutta
complaining
that
the
said
novel
'Prajapati' "contains matters which are obscene and both the
accused persons have, sold, distributed printed and exhibited the
same which has the tendency to corrupt the morals of those in
whose hands the said 'Sarodiya Desh' may fall and the reading
public as well" and "both the accused persons have committed an
offence punishable under •· 292 Indian Penal Code (I.P.C. for
short) and under s. 292 read with s. 109 I.P.C.
•
SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J.J
23
On the basis of the said complaint and after compliance
with the necessary formalities, a criminal case being case No.
353/68 against botll the accused persons was started and the said
criminal case was disposed of by the then Chief Presidency
Magistrate of C&lcutts by his judgment dated 11th February, 1968.
The Learned Chief Presidency Magistrate for reasons recorded in
the judgment held:-
"Tiro persons are facing their trial, accused NO. l,
Shri Samaresh Basu, a modern writer of repute and
accused No. 2, Shri Sitsngshu Kumar Das· Gupta, the
Printer and Publisher of a very important magazine
like 'Desh'.
The novel in question has been found to be obscene and
as such accused No. l Shri Samaresh Basu cannot escape
liabilities. The same is also the condition
with
accused No. 2 - Shri Sitangshu Kumar Das Gupta. He has
got special responsibilities to see that his publication may not affect the readers of the same.
For the reasons stated above, though the accused No. l
Shri Samaresh Basu, is a powerful writer, I cannot but
strike down the impugned novel, after declaring the
same as obscene.
The result of my above findings, is to find both the
accused guilty u/s 292 l.P.C. and I convict both of ·
them accordingly.
Next question arises as to what punishment should be
inflicted.
Considering the facts and other connected matters I
sentence both of them to pay a fine of Rs. 201/- each
in default to undergo s. 1 for two months each.
Let the pages from 174 to 226 of Ext. 1 be destroyed
under the provisions of Section 521 Cr. P.C. after the
period of appeal be over."
Against the judgment and order passed by learned Chief
Presidency Magistrate both the accused preferred an appeal to the
High Court at Calcutta. The complainant also filed a criminal
revision in the High Court for enhancement of the sentence
A
II
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D
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F
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24
SUPREME COURT REPORTS
[1985] SUPP.3 s.c.R.
A imposed by the Chief Presidency Magistrate on the two accused
persons. On the criminal revision application which was
numbered
as Criminal Revision No. 299 of 1969 rule was issued by the High
Court. The criminal appeal which was filed by the two accused
persons was numbered as Criminal Appeal No. 106/69. The Criminal
B
c
D
E
F
G
H
Appeal No. 106/69 and also the Criminal Revision No. 299/69 were
disposed of by a single Judge of the High Court by a common
judgment delivered on 27.6.1972. The High Court discharged the
rule in the Criminal Revision No. 299/69 and dismissed the appeal
affirming the sentences imposed on both the accused persons with
the following further observations :-
"In the Petition of complaint only the publication of
the novel in the Sardiya Sankha of Desh of the Bengali
Year 1374 at PP• 174 to 225 was mentioned. OnlY one
copy of that journal Desh was marked Ext.
l
in the
court of the Magistrate. The learned Chief Presidency
Magistrate has directed that the pages from 174 to 226
of Ext· 1 be destroyed under the provisions of Sec.
521 Cr. p.c. That serves no purpose unless all the
printed copies of that issue of Desh are forfeited and
in every copy thereof pages from 174 to 226 be
destroyed. The Magistrate also failed to notice that
during evidence it has come out that this novel has
been published also as a book. That publication in the
form of a book of this novel need also be forfeited
under Sec. 521 Cr.P.c. While I affirm that the learned
Magistrate's decision to destroy the offending pages
should be upheld· I direct that the learned Chief
Presidency Magistrate shall take ap.propriate steps
under s. 521 in respect of the other copies of Ext. 1
and also in respect of the novel if published in book
form, The appeal fails and is dismissed.''
Against the judgment of the High Court both the accused
persons have preferred this appeal with special leave granted by
this Court.
The question for consideration in this appeal is whether the
two appellants can be said to have committed an offence under S.
292 I.P.c. and the answer to this question will necessarily
depend on the finding whether the novel 'Prajapati' is obscene or
not.
•
•
SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J.]
25
It may be noted that in the trial before the Learned Chief
Pi!esidency Magistrate the complainant and one Kalobaran Ghosh a
businessman, had deposed; accused Ssmaresh Bose and acc•1sed
Sitangshu Kumar Das Gupta were both exnmined, and two well-known
persons in the literary field, (1) Shri Budhadev Bose and (2) Dr.
Naresh Guba had given evidence on behalf of the accused. Amal
Mitra, the complainant, in the course of evidence stated that he
was an Advocate of the Calcutta High Court and was a reader of
Bengali Literature and he considered it to be his duty to uphold
the purity of Bengali Literature. It is his evidence that the
book .is obscene and has got no literary value and the book, if
read by any person and particularly young persons, may corrupt
the morals of the readers. He marked various portions in the book
which according to him were obscene. In the course of his
cross-examination, Shri Mitra was asked about various other
Bengali novels written by other eminent writers, namely, Probodh
Kumar Sany al, Budhadev Bose and Ananda Shankar Roy
and he
admitted that he had not read any book by them. He also stated in
his cross-examination that though
he had gone through the book
his moral character had not been affected in any way. The other
witnesses examined on behalf of the complainant was Kalobaran
Ghosh, a businessman carrying on the business of manufacturing
engineering goods. He has stated in his evidence that he has a
family and he is interested in Bengali literature. It is his
evidence that after going through the novel 'Prajapati' he formed
an opinion that the novel was absolutely obscene meant to pollute
the minds of the younger generation and was written with a view
to earn money and he could not hand over the book to his children
for reading the same. In the course of his cross-examination,
this witness stated that he had read the writings of late Sarat
Chandra Chattopadhyay, Rabindra Nath Tagore and Ananda Shankar
Roy and he would not say that any of their writings was obscene.
This witness further stated in the course of cross-examination
that he had not read all the books written by Budhadev Bose,
Probodh Sanyal, Achintya Kumar Sengupta. This witness admitted
that with the passing of time, the standards of the literature
were going down and so also the standards of obscenity.
The first witness.called on behalf of the accused was Shri
Budhadev Bose. In his evidence Shri Budhadev Bose stated that he
was a whole time writer and in addition to that he was a
Professor of
various institutions and he had also been the
Chairman of the Comparative Literature at Jadavpur University for
seven years and he had also been the visiting professor of
various universities in United States of America. He further
A
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26
SUPREME COURT REPORTS
[1985] SUPP.3 s.c.R.
A
stated that he had at least written about 200 books and also many
critical works ancl the books written by him were mostly in
llengali excepting two books which were in English. lie stated in
thP. course of his evidenceB
c
D
E
"l c«n unhestiatingly say that Shri Bssu is one of the
most important Bengali Novelists of the generation
"fter mine. l might be 20 years older to Shri Bssu.
some sort of restraint should be there to regulate the
ob~cene writings. l
mean to say that in certain
specfal cases it may be necessary to impose some
restraint
on
literature.
l
have
read the
novel
'Prajapati' es published in the Sarodiya Desh issue of
the Year 137 4 and subsequently published in book form.
That is the book which is being considered in this
trial.
Q. Do you consider that book or the novel 'Prajapati'
to be an obscene writing?
A. Not at all.
Q. Would you say any portion of that writing to be
obscene?
A. No."
In the coume of his evidence, his attention was drawn to
various pass«ges in the book which were alleged to be obscene and
he categorically stated that there was nothing obscene in any of
these passages.
This witness was
cross-examined at length.
Various passages in the book alleged to be obscene were put to
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this witness and it was suggested to him that these passages were
obscene. Shri Bssu emphatically and categorically denied that
those pass«ges or any part thereof could be characterised as
obscene. When asked what was his concept of obscenity, Shri Bssu
in his answer stated "In my opinion, if a piece of writing can be
called . literary in the special sense, it cannot be obscene.
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Literature in the technical sense means an imaginary piece of
writing". When asked in the course of cross-examination to cite
an example in support of the proposition that a writing vividly
describing a sexual act and sexual perversity, was of literary
and moral value, Shri Bssu answered as follows:-
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SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J.]
27
"Anybody who kno'1s thP. works of Rabinc!ra Nath Tagore,
knows that throughout his life he w11s a great advocate
of freedom, we can say, also of social and sexual
freedom. May I remind every,:me here of his novel
'Chokher Bali' where he describes a love relationship
between a young Hindu widow and a youngman. May I
remind everybody here of ''Ghare Baire' where a married
womai., a very highly respected woman falls in love
with her husband's friend. May I remind everyone here
of Tagore's novel 'Chaturanga' where an actual &exual
act is · desaibed in a 1 very
poetic and
moving
language."
In cross-examination with regard to a particular pass&ge at
p. 178 which is alleged to be obscene, this witness was asked
what was it that the author was describing in that passage. The
following answer to this question followed by further questions
and answers may be noted:-
"A. He is describing some pictures that he had at one
time seen.
Q. Mr. Bose, do you say that this sort of writing is
unconventional?
A. It is not very unconventional in 1968.
Q• Mr. Bose would you like to say that teenagers
reading this portion would not be affected in any way?
A. I have already said that they will be repelled.
Q. I put it to you that this passage is obscene and it
would pollute their minds?
A. I do not think it is obscene at all, nor is it
liable to corrupt the young or older people.
Q.
Mr.
Bose
do
you agree that in this novel
'Prajapati',
the writer has chosen many 'words
which
perhaps
are
unknown
to
the
Bengali
Literature?
A. These words wiy have been unknown in literature but
they
were very widely current in speech.
By
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SUPREME COU!i.T REPORTS
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introducing
these new and forceful words into
literature the author has done a
service to
Bengali literature and language and that is one of
the reasons why the
book is praise""1o10rthy. That
passage was necessary because this passage br~ngs
out the moral aspects of the hero's character."
It was put to this witness that this novel 'Prajapati' has
no moral value and in answer the witness stated "In my opinion,
it has great social and mora1 value". When a further suggestion
was put to him in the course of cross-examination that the book
'P•ajapati' had been written only with commercial motive, the
witness categorically denied the suggestion saying "certainly
not". In answer to the suggestion made to Mr. Bose that he was
not capable of judging what is good and what is bad in literature
his evidence was:
"Many people think both in India and abroad that I am
excellent Judge of literature and I agree with them.
On the strength of the reputation I have been invited
several times to teach at American Universities and to
lecture on literature in many famous Universities in
Europe and in Asia".
The other witness called on behalf of the accused was Dr.
Naresh Chandra Guba who at the time of giving his evidence was
the
Professor and
Head
of
the Department
of Comparative
Literature at Jadavpur University. Dr. Guha in the course of his
evidence said that as part of his duty he had to deliver lectures
on Bengali Literature and in addition to that he addressed
various literary gatherings and had spoken over the radio and he
had also addressed a meeting in the University of Chicago on the
works of Rabindra Nath Tagore. This witness stated that he had
written two books till then, one in English and the other in
Bengali. It was the evidence of this witness that he had read
quite a few books written by Samaresh Bose and he considered him
to be a very powerful writer. It is his categorical evidence that
he has read the novel 'Prajapati' and he does not consider that
book as an obscene one and this novel is not obscene either in
part or as a whole. When certain passages of the book alleged to
be obscene by the complainant were pointed
out
to
him to
ascertain his views as to whether those passages were obscene,
this witness stated that he did not consider the same to be
obrcene as in his view "it is a necessary part of the scheme" of
the novel which scheme was social criticism with a moral purpose.
SAMARESH BOSE v. AMAL MITRA [A.N. SEN, J. J
29
When asked whether the moral purpose of the novel will come
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through to the general reader, this witness said in his evidence-
"If the reader is one who is used to literature, by
which I mean who does not read once a while a book in
his life, the moral purpose of the book will be very
obvious. I feel as a man whose profession is teaching
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literature in M.A. classes this is how I could look to
them for this book. Here is a young man Sukhen, a
small
town man,
who
never hsd the occasion to
experience human love."
Dr. Nsresh Chandra Guha was also cross-examined at length.
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Various passages which were alleged to be and were considered to
be obscene by the complainant wer. put to this witness. Dr. Nsresh
Chandra Guba clearly and emphatically refuted that there was any
obscenity in any of those psssagas. 'l'he following questions put
to the witness and the answers given by him may also be noted:-
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"A. No Sir, My. answer entirely goes against your
suggestion.
Q.
Mr.
Guba,
I
put it to you that the novel
'Prajapati 1 in question in general and the portiona
marked with red lines in particular are obscene?
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A. I do not think so.
Q• I put it to you that the novel 1Prajapati 1 has the
tendency to corrupt the morals of those whose minds
are open to immoral influence.
A. No, it is not so ..
Q• I put it to you that the novel Prajapati wou1¢
pollute the minds of those readers who are young
adolescent and of impressionable age?
A. I have got some scudents. They have read the book.
I know, they have not been corrupted. They are of the
age
group
between 18 upwards.
They are college
students or university students .• "
•
It may be noted that the learned Chief Presidency Magistrate
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SUPREME COURT REFORTS
(1985] SUPP.3 s.c.R.
A In fact, he has placed no reliance on the oral testimony which
was adduced before him· The learned Chief Presidency Magistrate
· :ias pro~eeded to make his own assessment after reading the book,
and as stated by him, with an open mirui and a number of times. He
has observed "Moreover expert knowledge has nothing to do with
such cases. wltether a book is obscene or not depends on the
B interpretation of s. 292 1.p.c.
and not on expert evidence".
The learned Chief Presidency Magistrate has set out in his
judgment the gist of the stury and has referred to various
aspects and incidents at length for considering wbeth~r the book
can be said to be obscene.
Dealing with the statement made on
behalf of the accused author, that the passages colilplained of are
not obscene and even if it may be said that ther.e is some amount
C of indecency in those passages and the words used therein are
vulger, it has to be appreciated .that they became necessary to
put the scheme of the novel in its right perspective, the learned
Chief Presidency Magistrate iias observed:-
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"It may have exposed the hypocricy of the people,
exposed the politicians who live on others, exposed
the teachers who / do not care to look after the
interests of the students, exposed the big officers of
the
workshops
and
factories
and
their
most
ultra-modern wives who do not take care of their
children. No doubt, such a thing has been said and
such characters have been depicted, but to me it
seema, it has so been depicted in a very veiled way.
The character of Sukhen as offered to be a noble one,
has got to be established by argument. So also the
character of Sikha. A plain reading of the novel will
no doubt raise pity in the mind of the readers for
~ukhen and Sikha, but that will not heighten the
importance of the novel in question. As a forceful
writer,
Shri
Samaresh
Basu
has
depicted
those
character in his own way,
but unfortunately the
purpose has been frustrated by his bringing sane slang
and unconventional words and for his depiction of some
incidents which cannot be tolerated in a society like
ours.··
He further observed:-
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"It was said that Sukhen is a goonda and a street boy
having no sufficient educaUon and culture. As such in
~
the fitness of things those words and incidents had to
SAMARESll BOSE v. AMAL MITRA [A.N. SEN, J.)
31
be mentioned like this through his 100uth. Sukhen might
be of a character of that type but the writer ought to
be a little bit cautious. The writer must know that
the
sto~y of Sukhen will not remain written and
preserved in the iron-safe. The writer has got his
duty towards his readers as well. Their writings have
got their social implications as there is a right of
the authcr to give his very best free from any
restraint from any quarter and that too fearlessly. So
there is his responsibility to the society as well. As
his freedom is great, so must be the responsibility as
well. With that end in view the social control has
been imposed on the writers th:-ough the help of
legislation. Accordingly, I hold that no writer should
be allowed to take recourse to wlgariSlll under the
pretence of writing some
novel
with
some social
purpose ...
The Chief Presidency Magistrate ultimately held:-
"I find that this book has got no literary merit, nor
educational
or
sociological
value.
An
attempt,
however, was made on behalf of the writer to show that
the novel in question has served those purposes, but a
simple reading of the same will show that it was
nothing but a camouflage to introduce obscenity in
this book and this has played prominent part. Under
the pretence of doing good to the society the novel in
question has done greater mischief."
On the basis of the findings on his own appreciation and
assessment of the novel on the question of obscenity, the learned
Chief Presidency Magistrate came to the conclusion that the novel
was obscene within the mischief of s. 292 I.P.C. and the learned
Chief Presidency Magistrate imposed the conviction and the
sentence which we have earlier recorded.
The learned Single Judge of the lligh Court has affirmed the
view expressed by the learned Chief Presidency Magistrate that
the novel in question is obscene alld comes within the mischief of
s. 292 I.P.C. It may be appropriate to note some of the
observations made by the learned Judge. He observed :-
"I have read the whole novel. It is remarkable for
many reasons, more so because the author Samaresh Basu
who is the Principal accused in this case is a well
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known writer of contemporary Bengali literature and
has published works in the past which have often been
in the background of that strata of society where
manual labour is often victim of expolitation and
sweating,
resulting
in
continuation
or
even
p~rpetuation of proverty,
illiteracy •••• In
those
works Samaresh Basu has employed language of his hero
in the particular literary work as such character
would do in real life. This Sri Basu has done with
courage and deftness that have not only served his
purpose well in those writings but also earned
reputation for him as a remarkable Bengali writer of
present age. Both the defence witnesses have spoken of
that well known fact."
The learned Judge has further observed :-
"It cannot be questioned that the problem has grown in
its bulk because of the complete break down of moral
fibre of the society in general and individual members
of the society in particular, and also in the family
units and that can by no means be denied also. The
causes that have led to the reasons of the problem
need to be carefully discerned. To my mind it is also
in the fitness of things that thinkers and literatures
have a function to deal with the problem by use of the
strength of their pen for giving expression to their
tho1J8hts and suggestions. Yet literature as an art is
one of certain technique and conscious caution. When
the subject is virulent, that provides all the more
reason for subdued caution, lest in the attempt to
locate the virus and disclosure of its causes, the
treatment itself spreads the poison to conteminete
many more who are yet uncontaminated that is Wh> the
quality of the writer and quality of the languages
employed by the writer is relevant. His purpose may be
good but his language may betray his purpose and bring
about a completely reverse affect. Mere goodness of
purpose, therefore, does not offer justification for
employment of bad
language-bad ir. the larger sense
including
lascivious
and
wlgar.
In matter
of
technical interest and for the concern of technically
trained minds a language may be not only inevitable
but also useful. But the same language when employed 1
SAMARESH BOSE v. AMAL MITRA (A.N. SEN, J.]
33
as a vehicle for
technical
purpose
vulgarity.
treatises which are not for the
becomes
obscene
due
to
its
By reading this novel printed in Ex. l in the whole
I have come to the definite conclusion that the author
Ssmaresh Basu has lapsed into that fault in so far he
appears to have intended it for the purpose of getting
a market for the journal in which it has been printed
amongst the young section of the society. Whether he
has unintentionally lapsed into that vulgarity of
language
as
the vehicle of expression in this
writing is irrelevant. What is relevant is that it
definitely tends to, not only tends but in my view, it
does, ,deprave and corrupt persons who are likely to
read, see or hear the matter contained in it."
'!he learned Judge held:-
"I am of the view that successful description of
reality is not a good defence against charge of
obscenity in literature published for general reader.
Students of obstetrics read in the medical treatise
and get full explanation of all the detail of female
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that helps in the cause of science of
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medicine. But such description.of the female anatomy
offered as literature for the general public with all
the good qualities of successful realism remains
obsscene punishable under s. 292 I.P.C. It can not be
whittled down by merely saying it is bad taste· By the
. law Of our country it is a crime. In the present case,
I am of the view that the episodes and the use of so
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much slang are all deliberately included, not to serve
any purpose of art of literary value, but only for
getting
the
seller's
market
of
pornography.
Pornography it is and with all the gross taste not
because it has sacrificed the art of restraint in the
description of female body and also because in some
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part it has indulged in complete description of sexual
act of a male with a female and also of lower animal."
'!he learned Judge on the basis of his aforesaid findings and
other reasons stated in the judgment affirmed the view of the
learned Chief Presidency Magistrate that the novel in question
was obscene and the learned Judge passed an order which we have
earlier noted,
upholding the conviction and sentence, while
discharging the Rule.
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The correctness of the decision holding the novel to be
obscene is the subject matter of challenge in this appeal by
special leave before us •
Mr• Sanghi, learned Counsel appearing on behalf of the
appellants, has contended that neither the novel as a whole nor
any part thereof can be considered to be obscene within the
meaning of s. 292 r.e.c.