Antony vs State of Kerala

Chettur Sankaran Nair, J.—Crl. R.P. 560/87 is by the second accused in C.C. 53/85 on the file of Judicial Magistrate of First Class, Parur. While Crl. R.P. 570/87 is by the third accused, who were, found guilty of the offence u/s 292(2)(a) read with Section 34 I.P.C.

On information that Petitioners were exhibiting pornographic pictures, P.W. 6 Deputy Superintendent of Police, conducted a raid at or about 8-30 p.m. on 14th November 1984 in premises belonging to P.W. 4, and it is said, found Petitioners exhibiting video films. P.Ws. 7, 9, 10 and 11 too witnessed the exhibition and according to them, what was exhibited was erogenic and capable of arousing purient thoughts in viewers. P.Ws. 1 to 3 were witnessing the exhibition, but turned hostile. P.W. 4 deposed that he is the landlord of the premises and P.W. 5 stated that the television unit and the video cassette recorder used by Petitioners belonged to him. He would also say that accused and himself were running a club. P.W. 11, seized casettes including casette No. 16612, which was inside the video cassette recorder. According to him, the premises were under the control and use of accused. The pictures showed nude men and women in the carnal act. Rape is also depicted. There are also acts, against the order of nature. This is what the Courts below found on evidence.

On this evidence, Courts below found that Petitioners were engaged in exhibiting obscene pictures. Counsel for Petitioners submitted that there is no evidence to prove that Petitioners were causing exhibition. Courts below found that Petitioners were engaged in exhibiting obscene pictures. They were found standing near the recorder and television unlike those sitting on chairs and viewing the exhibition. Whether standing near the machines used for exhibiting images/pictures would spell out the act of exhibiting is essentially a matter of evidence. Courts below thought that this afforded evidence, and that the premises and equipments were under the control and use of Petitioners. In para 7 of the judgment, learned trial magistrate noticed the evidence of P.W. 5 that himself and Petitioners were conducting a video club. Magistrate also noticed that P.W. 5 was not cross examined on this respect. The evidence of P.Ws. 6, 7, 9 and 10 was also considered by the magistrate in this regard. The evidence furnished by M.O. 5 tokens, Ext.P-3 register Ext. P-4 receipt books and Ext. P-5 voucher book was also relied on. I am not inclined to think that the inference drawn by the Courts below on evidence is so unreasonable as to merit interference, in revision. One cannot look for standards of proof unlikely to exist. The fact that Petitioners were near the equipment, the manner in which they conducted themselves, their control over the premises, television unit, video cassette recorder, tokens and registers etc. are material circumstances. The finding of fact must therefore stand.

Counsel then contended that video cassettes are not "obscene objects" or "representation" and that nothing obscene will be visible in these.'' To be an obscene object, the object need not be visible to the naked eye. Even what is visible to one person may not be visible to another, without aid of optical lences. Need for mechanical or optical aid for perception by visory senses, will not make the object any less visible. The fact that electrical impulses recorded on video tape are thrown on to the television screen by electric current to the picture tube containing a cathode ray, to produce images will not make it any less visible, than any other visual object.

It was then argued that there was no exhibition. An expression must be understood, having regard to the age and context in which it is used. Music heard through audio equipments, like gramaphones, stereo speakers and radio transmission may not have been regarded music a few centuries ago. Words must be understood in their contemporary meaning and context. In the words of Holmes, J. in California v. Baker 438 U.S. 265.

A word is not a crystal transparent and unchanged. It is the skin of a living thought and may very greatly in colour and content according to the circumstances and time in which it is used.

Sir Kenneth Diplock-Courts as legislatures observed as follows:

If Courts can identify the target of Parliamentary legislation, their proper function is to see that it is hit, not to record that it has been missed.

In Carew and Company Ltd. Vs. Union of India (UOI), Supreme Court counselled the need to adopt;

A broadened sophisticated and spectral sense...without being hidebound by lexicography.

No interpretive engineering is needed to find the meaning of exhibition. The expression need only be understood, in the contemporary sense. So viewed, images or pictures impelled from video cassettes, with the use of electricity or a cathode ray, is exhibition.

It was next contended, though faintly, that what was exhibited was not obscene. The classic ''Hickline test'' which still stands, though it has undergone certain changes is this:

Test of obscenity is this, whether the tendency of the matter charged as obscene, is to deprive and corrupt those whose minds are open to such immoral influence and into whose hands a publication of this sort may fall.

[Cockburn C.J., L.R. (1860) 3 Q.B. 360 ]

A slightly different note is struck in Rath v. United State 354 U.S. 476. The supreme Court of United states Said:

Whether to the average person applying contemporary community standard the dominent theme appeals to purient interests.

(underlining supplied).

''Contemporary standards'' concept is recognised by English Courts also. See Attorney General''s reference (1980) 3 All. E.R. 816 - D.P.P. v. Jones (1976) 3 All. E.R. 775 - R. v. Andarson (1971) 3 All. E.R. 1152 and Attorney General''s reference, (1976) 11 All. E.R. 753 - The Supreme Court of India in Samaresh Bose v. Amal Mitra AIR 1986 S.C. 1967 indicated the test of obscenity thus:

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 pronounced that it is likely to deprive and corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall.

(emphasis supplied).

The test is, whether the object or article is such as would rouse purient thoughts in an average person and whether it is obscene by contemporary standards of decency and morality. What may not rouse purient thoughts in an enlightened person or a scholar or a moralist, may arouse, or provoke such thoughts in average persons into whose hands the object may fall. Determination must be with reference to the kind of person, likely to come by it. Test is not whether it will corrupt the morals of an Archbishop, but whether it will tend to corrupt the thoughts of a person understood as the average person. In the instant case, people drawn from different strata of a suburban society, particularly of youthful age, are likely to witness the exhibition. In them, I should think, the material would rouse lascivious or debasing or unwholesome thoughts.

One cannot underscore the influence of audio visual media. While a book reaches a limited number, a film reaches vast numbers. No other media reaches so far and so deep, into common man''s life. No freedom extends to unrestricted exhibition of purient material. This is not a question of morality, but a question of public policy.

There is a school of thought, which consider that morality is not the concern of State, elsewhere it has been asked-if State can act against prostitution, adultery incest and euthanasia, is it not permissible to forbid immorality, which is a factor promoting antisocial behaviour. Attitudes towards life, its pleasure and satisfaction, do have an impact on contemporary life and orderliness in society. Flippent low tone lewd attitude to sexual fidelity, can shatter social fabric and erode concept of family and home. If unrestricted freedom is conceded, it could be exploited to commercial gsain, causing its ripples to rise into tidal waves, flooding values essential for preservation of life as a decent experience. Sex can be enticingly presented, as not sinful. Great values can be ridiculed, as antics of a primitive era. Not the human personality, but the human body, can be idolized. Lord Devlin in ''Enforcement of Morals'' (Maccabeen Lectures) upheld legitimacy of State concern. Reaction the thesis of Richard Wollheim - ''Crime, Sin and Justice Devlin''. A.L.A. Hart-Law, Liberty and morality said:

It is not the duty of law to concern itself with morality as such. It should confine itself to those activities which offend public order and decency.

Even by this liberal standard, activities which are not moral and have an impact on public order and decency; are amenable to state control. As under the first amendment in the United States, so under Article 19, restrictions in the interests of ''public order, decency or morality'' are permissible. Courts have recognised new heads of public policy in realms of criminal law. Simonds, L.J. in Shaw v. D.P.P. (1961) 2 All. E.R. 448 stated:

In this sphere of criminal law, there ramains in the Courts of law a residual power to enforce the supreme and fundamental purpose of law to conserve not only the safety and order but also the moral welfare of the State.

(emphasis supplied)

Human mind is the most fertile soil for ideas. It is the market place for new ideas. Great philosophies and religions have influenced the human mind and turned human destiny. Like the Ramayana, Bible and the great epics have influenced human mind, pernicious ideas and sub human concepts too, have. An industrial society in the closing decades of the century has seen so many changes, altering the fabric of life itself. Fledgling that fly from the nest never to return-old age homes surrogate parenthood-life without roots, are they not the products of a new civilization?

There is emperical evidence to suggest influence of media on youth.

We know that an overwhelmingly large number of sex crimes are associated with pornography. We know that sex criminals read it and are influenced by it.

(Granaham Hearing 1961-Edgar Hoover).

Sheldon, Elinor and Gluck-Juvenile delinquency (Harward University) came to the same finding. Today, porno films concentrate on rape and murders. Dr. Preston Sharo, Executive Director, Youth Study Centre, Philadelphia, at the Senate Committee Hearing, deposed that imaginary sex activity has a negative impact. According to Dr. Nicholas Frio Nito, Director of Neuro Psychiatric, antisocial delinquent activity is stimulated by pornography. Receipients of such ideas become sexually aggressive and incorrigible. Dr. George Henry, Professor of Clinical Psychology; Cornell University stated before the Kafavuer Committee that in sex crimes and deviation, pornography was an important factor. Two cases reported by Wartham Senior Psychiatrist in New York Hospitals relate to hanging of a seven year old boy in nude, and burnt with matches by boys due to the influence of such material. He also referred to the case of a 14 year old boy, strangling an eight year old girl and leaving 50 books depicting ways of abusing and killing girls.

In American Sexual Revolution (Sorokin-Harward University), it was noticed that antisocial behaviour is higher in societies where erotic sub-arts flourished. Kinsy reports and Bureau, reveal that over 50 per cent of the Respondents to the survey reported stimulation from books, pictures and drama with portrayals of sexual activity. National Council of Juvenile Judges (U.S.) found:

Character of juvenile delinquency has changed. They are no longer thoughtless mischivous actions of children, but acts of voilence, armed robbery rape and torture. Viscious and Vile Publications-Condition and mind of children.

Hary Fox Commanding Officer of Juvenile Aid Division, Philadelphia Police, Captain Edinborough Blake of Narcotics and Vice Unit Chicago, Ray Blick of Metropolitan Police Department noticed instances where criminals were caught with large quantities of pornomaterial. Mr. Fox said:

This material acts as aphrodisiac for rape, seduction, sodomy, assaults, inducing exposure, murder of children, homosexual...and wife swapping by people involved in pornomaterial and readers of it. One child was found crucified. At the foot of the cross was a mound of pornography.

Hard core pornography is a deep causative factor. At least it has a trigger function. It can depersonalise sex and human bonds, with catastrophic consequences on concepts like, family and fidelity. All this and more, offer cogent evidence of the influence of lascivious or purient pornomaterial making a tremendous impact on human mind.

Counsel argued that one of the films dealt with the life and loves of Michael Angelo. Mere reference to Michael Angelo does not make it a work of Article Statements made by counsel are neither accurate, nor do they form part of the accredited life story of the great genuine. Merely classifying a piece as work of art will pot change its innate character. Robert M. Clor referred to this aspect in detail, and found that books like ''Fanny Hill'' or ''Well of Lonliness'' cannot claim any merit as literary works. They only build up erotic excitement with increasingly stimulating scenes, emphasising abarant and forbidden forms of sexuality of a wish fulfilling fantasy character, bringing out the physical performer, than the soul of human perceptions and dimentions. Different standards apply to works like ''Lady Chatterly''s Lover''. Clor referred to the sublimation in the love of Mellors and lady constance expressed as,

The peace of earth of her soft quiescent body,

finding supra biological meaning of human dimensions, as, genuine literature addressed to the mind. Literary merit cannot be claimed for the asking. Dehors such merit, the writings or exhibition will be obscene.

Courts below found the exhibition obscene. It found the articles in question obscene objects. It also found Petitioners instrumental to exhibition. Conviction is therefore proper.

Then remains the question of sentence. Counsel submitted that under Governmental patronage like exhibitions, are conducted and reffered to ''Filmotsav 1988'', as point in instance. Counsel submits that films, showing nude, men and women, in acts of extreme physical intimacy, were exhibited to public. According to him, if State can sponsor such ''culture'', ordinary citizens like Petitioners should not be punished for like activities.

There is no evidence of such exhibition before me. I should like to think that a cultural heritage, as rich and varied as that of India, cannot certainly be enriched, by such. Courts below imposed a sentence of imprisonment for three months. Sentensing discretion properly exercised, should not be interfered with except for good reasons, Mathuri and Others Vs. State of Punjab, and sentences commensurate with gravity of the offences are warranted State v. Prabhu 1988 S.C. C. 51.

So viewed, the sentence imposed does not merit interference. Conviction and sentence are confirmed and revision petitions are dismissed.